ED Officers Can Seek Custody; Sections 41, 41-A CrPC ‘Not Expressly Applicable’ In PMLA Cases: Justice D Bharatha Chakravarthy In Senthil Balaji Case

Upasana Sajeev

4 July 2023 4:11 PM GMT

  • Whatsapp
  • Linkedin
  • Whatsapp
  • Linkedin
  • Whatsapp
  • Linkedin
    • Whatsapp
    • Linkedin
    • Whatsapp
    • Linkedin
    • Whatsapp
    • Linkedin
  • ED Officers Can Seek Custody; Sections 41, 41-A CrPC ‘Not Expressly Applicable’ In PMLA Cases: Justice D Bharatha Chakravarthy In Senthil Balaji Case

    Disagreeing with the opinion and conlcusion of Justice J Nisha Banu in the decision on habeas corpus petition filed against Tamil Nadu Minister Senthil Balaji’s arrest by the Enforcement Directorate, Justice Bharatha Chakravarthy held that the his family had not made out a case of illegal custody or mechanical remand order, which could warrant the interference of the High Court by way of...

    Disagreeing with the opinion and conlcusion of Justice J Nisha Banu in the decision on habeas corpus petition filed against Tamil Nadu Minister Senthil Balaji’s arrest by the Enforcement Directorate, Justice Bharatha Chakravarthy held that the his family had not made out a case of illegal custody or mechanical remand order, which could warrant the interference of the High Court by way of a Habeas Corpus petition. 

    While Justice Banu said the officers empowered to arrest under Sec 19 of PMLA, 2002, are required to produce the accused to the competent court within 24 hours of arrest and can seek only Judicial remand, Justice Chakravarthy said when Section 65 of PMLA expressly makes it clear that the provisions in the CrPC relating to investigation will apply to PMLA, then Section 167 CrPC, should be applicable mutatis mutandis and that the word “Police” has to be read as Investigating Agency or the Enforcement Directorate.

    "Therefore, the first contention that the Enforcement Directorate cannot seek for Police custody is without any merits," Justice Chakravarthy said in contrast to Justice Banu's ruling that "ED cannot hold custody of any person beyond the first 24 hrs of arrest."

    Maintainability of Habeas Corpus Petition after a Judicial Order of Remand

    Justice Chakravarthy noted that normally, once an order of Judicial remand is made, a Habeas Corpus Petition would not be maintainable. The judge added that such orders could even be subsequent to the alleged illegal detention or filing of the habeas Corpus petition. 

    "Such authorisation of valid custody can even be subsequent to the alleged act of illegal detention or even be subsequent to the filing of the Habeas Corpus Petition, but, if on the date of return of notice / taking up the Habeas Corpus for considertion, if the detention is or becomes legal, then, other questions would no longer be the concern of the Court in the Habeas Corpus Petition," said Justice Chakravarthy

    However, Justice Chakravarthy also noted that in exceptional circumstances, when there is absolute illegality with total disregard to fundamental rights, the court can examine the illegality of arrest and detention.

    However, absolute illegality, total non-application of mind or lack or jurisdiction and wholesale disregard to the fundamental rights in a given facts and circumstances of a case would be an exception where the Habeas Corpus Court can examine the illegality of arrest and detention (Paragraph No.21 of Madhu Limaye'; Pargraph 31 of Manubhai Ratilal Patel and paragraph No.71 of Gautam Navlakha),” Justice Chakravarthy observed.

    Article 22(1); Section 41, 41A CrPC

    Justice Chakravarthy observed that there was a compliance with Article 22 of the Constitution and the provisions of the CrPC. He added that given the facts of the case, with respect to allegation of non-cooperation and intimidation by Balaji, there was no ground to doubt the averments made by the ED.

    With respect to compliance with Section 41A of the CrPC, Justice Chakravarthy said provisions of both the statutes including PMLA absolutely make it clear that if there is a special enactment and if there is any special provision contained in respect of any particular purpose, then that special provision will apply.

    "Wherever the special enactment does not contain specific provisions, then the provisions of the Code of Criminal Procedure would apply. The Code of Criminal Procedure and P.M.L.A are thus clearly and categorically harmonious," the judge said.

    Justice Chakravarthy said the Supreme Court had considered that Section 19 "adequately safeguards the interests of the accused" and thus, the express application of Sections 41 and 41-A of CrPC, stood negated in respect of the offence under PMLA.

    "But, at the same time, I find that subsequently, in Satender Kumar Antil’s case (cited supra), the Hon’ble Supreme Court of India even though considered the offence under P.M.L.A under category (C), however, in paragraph No. 27, held that the requirements under Sections 41 and 41-A of Cr.P.C., are facets of Article 21 of the Constitution of India. If that be so, a careful reading of the judgments of the Hon’ble Supreme Court of India in Vijay Madanlal Choudhary’s case (cited supra) and Satender Kumar Antil's case (cited supra) would lead us to the conclusion that per se, it is only Section 19 of P.M.L.A that is the substantive provision enabling the arrest and prescribes the special procedure and therefore Sections 41 and 41-A Cr.P.C., are not expressly applicable".

    However, Justice Chakravarthy added that principles underlying Sections 41 and 41-A of Cr.P.C., are to be extrapolated and read into Section 19 of PMLA also. "That is in each and every case it is not mandatory to arrest the accused and the officers, exercising powers under Section 19, have to satisfy the ingredients as mentioned in Section 41(1)(b) of Cr.P.C., and in all the other cases, the arrest procedure need not be resorted to as the investigation can be carried on by issuing summons directing them to provide details," he added.

    In the present case, the court observed that Balaji had behaved in a manner "intimidating" the Investigating officer.

    Keeping this legal position in mind, if I examine the present case, on a perusal of the counter affidavit filed by the Investigating Officer of the case, it would be clear that the accused behaved in a manner so as to intimidate the Investigating Officer and secondly, did not also furnish the particulars which were necessary to trace out the money trail relating to the offence and thirdly was hampering the investigation. Therefore, on more than one ground mentioned in Section 41(1)(b) of Cr.P.C., the arrest was necessary and the same is clearly mentioned in the grounds of arrest and thus, even in the absence of specific application, substantially the requirements under Section 41 and 41-A of Cr.P.C., stood complied in the instant case,” Justice Chakravarthy observed.

    Justice Chakravarthy also disagreed with the submission that the order of remand was a mechanical one.

    Therefore, in this context, even though I agree with the submissions of the learned Senior Counsel that the procedure adopted by the learned Pricipal Sessions Judge could have been better, substantive compliance relating to the application of mind as to the compliance of the Article 22 of the Constitution of India, Section 19 of P.M.L.A for arrest and consideration of other apprehensions expressed by the detenu himself are made and therefore, there the exercise of power cannot be termed as “absolute mechanical manner” or 'total non application of mind',” Justice Chakravarthy noted.

    Thus, Justice Chakravarthy opined that the petitioner had not made out a case of illegal detention which would render the Habeas Corpus petition maintainable.

    Exclusion Of Time

    While dealing with the contention that ED is not entitled to custody as they do not have the powers of police officers, Justice Chakravarthy said under Section 167(2) of CrPC, the phrase used is “authorise detention of the accused in such custody as the Magistrate thinks fit”.

    Therefore, the word “Police” is not even specifically used at the first instance. In any event, when Section 65 of P.M.L.A expressly makes it clear that the provisions in the Code of Criminal Procedure relating to investigation will apply to P.M.L.A, then Section 167 Cr.P.C., should be applicable to mutatis mutandis and therefore, the word “Police” has to be read as Investigating Agency or the Enforcement Directorate. Therefore, the first contention that the Enforcement Directorate cannot seek for Police custody is without any merits,” Justice Chakravarthy said.

    The judge added that merely because the express provision to act as Station House Officer is absent, the same will not in any manner disentitle the Enforcement Directorate from asking for the custody. "Therefore, there can be no doubt whatsoever that the respondents officers are entitled to ask for custody," he added.

    Justice Chakravarthy also observed that the criminal justice system operates on the principles of Truth (Sathya), Justice (Neethi), Compassion (Karuna) and Peace (Shanthi) and that the stage of investigation is for the unearthing of truth which is the primary objective. 

    "Therefore, in that view of the matter, I am of the view that the time spent by the detenu / accused in the Hospital, only such time till he is not in a position to be fit to be interrogated has to be excluded from the initial 15 days time for grant of custody to the respondents and accordingly," said the judge, while acceding to ED's prayer for excluding the period spent by Balaji in hospital from the initial 15 days for grant of custody

    Thus, Justice Chakravarthy ordered that the period from m 14.06.2023 till such time Balaji is fit for custody by ED, shall be deducted from the initial period of 15 days under Section 167(2) of the Code of Criminal Procedure. He also ordered that Balaji could continue treatment at Cauvery Hospital until discharge or for a period of 10 days whichever is earlier and thereafter could continue treatment at the Prison Hospital.

    The judge also directed that as and when Balaji is medically fit, the ED can move the appropriate court for custody which could be considered on its own merits except that it should not be denied on the ground that the 15-day period had expired.

    Case Title: Megala v State

    Citation: 2023 LiveLaw (Mad) 184



    Next Story