ED Questions Maintainability Of Habeas Corpus Plea Against Senthil Balaji’s Arrest, Tells Madras High Court ‘He Wasn’t Cooperating With Probe’

The submissions were made before the bench of Justice J Nisha Banu and Justice Bharatha Chakravarthy in a hearing that began in the morning and lasted even beyond court hours. In the previous hearing, Balaji's family had argued that the ED had violated the Minister's fundamental and statutory rights by not following due procedure.

Solicitor General Tushar Mehta, representing the ED, submitted that the minister had not been cooperating with the investigation as he was not responding to summons or answering questions. Relying upon Supreme Court judgments, Mehta said that a person can be arrested to prevent him from destroying evidence or threatening witnesses.

“They have not challenged the remand order in the HCP. Because it is in their favour. The order says not to harass him etc. So they haven't challenged it. All these grounds were raised in the bail petition and even that was rejected. They have not challenged that order also,” Mehta said.

Mehta also argued that though executive actions can be challenged when they take away fundamental rights, the Sessions court in this case already held that the custody was not illegal.

"Writ can always be claimed against executive actions when the rights are taken away except in accordance with law. But when the judicial mind is applied and the court finds that the custody is not illegal, you cannot say that custody is illegal without challenging the order," he said.

Mehta further argued that even in case of unlawful detention, if the illegality is cured thereafter, the court cannot interfere through a habeas corpus petition. “Now he is not in my custody. He is in judicial custody. How can the court direct me to produce him,” he said.

Mehta also said that there is no CrPC provision that requires grounds of arrest to be reduced to writing. He referred to Section 19 of PMLA which allows the authority to arrest a person if there is reason to believe that he is guilty of an offense under the Act and submitted that the grounds of the arrest are to be informed as soon as possible and not immediately.

“CrPC also gives importance to special enactment. When the provisions are consistent with each other, PMLA prevails. S. 41A provides the basic procedure. But PMLA provisions are more stringent and rigorous which is why the SC says that it is a code in itself,” the SG said.

Mehta also argued that the Sessions Judge herself has noted that she informed Balaji about the grounds of arrest and his right to legal assistance. “So he was informed as soon as possible,” said Mehta.

On ED’s prayer for custodial interrogation, the SG said the remand order made it impossible for the central agency to interrogate him in the hospital, and that custody had to be sought within the first 15 days of arrest.

“When interim bail was sought, the court said that there was no question of bail. The court asked him to be in judicial custody. That does not take away my right to ask for police custody. The court didn't injunct us from seeking custody,” he said.

Mehta said that one may argue that the order granting custody is a nullity. “But there are judgments that say that even an order of nullity has to be taken up in challenge. There was a finding that S.41A is not applicable, that has not been challenged,” he added.

The SG further contended that notice under Section 41A CrPC is issued when a police officer does not want to be arrested. The agency wanted to arrest him due to good reasons and not ipse dixit, he added.

“My learned friend also argued malice. Malice in a civil matter stands on a different footing than malice in criminal proceedings. We have documents showing money was received. Most importantly, these very same arguments were advanced before the SC and the court rejected the same. Would it be possible for the petitioner to re-agitate the same before the HC?” Mehta argued.

Mehta also said that malice is “irrelevant” when there is a prima facie case made out. "There are at least four judicial orders that say that there is a prima facie case and that materials are available," he said.

Senior Counsel Mukul Rohatgi, appearing for Balaji, vehemently opposed the prayer for exclusion of the period of treatment while considering the period for custodial interrogation. He submitted that there are no legal provisions for the same, whereas, there are a plethora of judgments which cement that the 15-day custody duration cannot be extended at any event.

"Law has to provide for exclusion. There is no legal provision for exclusion. Once the 15 day period is over, it's gone. The clock cannot be set back. Under S. 167, there is no question of exclusion. The Supreme Court's decision in Anupam Kulkarni has been holding field since 1992. The judgment does not provide for exclusion... I have decisions where even during Covid time, the 15-day period was not extended," he argued.

Rohatgi further argued that even though the Minister was hospitalized, it did not thwart the investigation.

"Investigation is not thwarted. Only custody is thwarted. There is no law that says you cannot investigate without custody. Judicial custody is the norm, police custody is the exception... Once the time starts ticking, right or wrong, the period starts. The world does not end. The investigation does not stop," he submitted.

Relying on the Navlakha, Madhu Limaye, and the Vijay Madhanlal cases, he argued that since the Minister's arrest and subsequent remand are illegal, the Habeas Corpus petition would lie. He also contended that though the ED has claimed they are not bound by Section 41A CrPC, there are no observations regarding the same.

"I agree with the SG's submission that Section 19 PMLA is stringent. But that does not mean that the less stringent one should be thrown away. S. 41A should still be followed and when there it is not followed, rights are violated," Rohatgi argued.

Countering Rohatgi's arguments, Mehta submitted that the 15-day custody for interrogation was the right of the agency and this right is also that of all the persons who had complained against the accused. He added that it is the ED's duty to investigate and thus they should be allowed to exercise the right.

"15 days is the right of the agency. It is not the right of the investigating officer, but all those persons who have filed a complaint. It is my duty to investigate. The scope is not whether police custody is better or judicial custody. The scope is that today we are not in a position to exercise that right and thus grant an exemption," he said.

The court asked all the parties to submit their written submission by tomorrow and adjourned the case.

Case Title: Megala v. The State

Case No: HCP/1021/2023