Can ED Go To State Police If CM Barges Into ED Raid? Supreme Court Asks West Bengal

The Supreme Court today orally asked if the Enforcement Directorate can seek a remedy from the State Government against the alleged obstruction of its raid of the I-PAC office by Chief Minister, Mamata Banerjee.The Court posed this question, addressing the preliminary objections raised by the State of West Bengal to the maintainability of the petitions filed by the ED and its officers under Article 32 of the Constitution of India, seeking an investigation by the Central Bureau of Investigation into the alleged obstruction of the ED's raid of the I-PAC, the political consultant of Trinamool Congress.The Court also orally commented that the ED officers can also individually maintain an Article 32 petition against the violation of their fundamental rights, as ED officers do not cease to be citizens of India.A bench comprising Justice Prashant Kumar Mishra and Justice NV Anjaria was hearing the matter.The ED has sought registration of a CBI FIR against Chief Minister Mamata Banerjee and the State Police Officials who allegedly obstructed the ED raid. There was a connected writ petition filed by ED officers challenging the FIR registered by the West Bengal Police against them. Last week, the State started arguing on preliminary objections to the maintainability of the petition. Today was the second day.Can You Claim Remedy From State When State Obstructs Investigation: SC AsksAt the outset, Senior Advocate Kapil Sibal (for the State of West Bengal) reiterated that the ED cannot invoke Article 32 jurisdiction. He said that if a public officer has been obstructed from performing his duties, he can launch a prosecution for the obstruction of his right to discharge his functions under the Bharatiya Nyaya Sanhita.He submitted that if there has been any obstruction of the EDs, the State police can investigate the matter. On this, Justice Mishra asked if going to the State government for a remedy would be appropriate when the allegations are against the State government itself."The CM barges into an ED investigation, and your idea of remedy for the ED is to go to the state government, which is headed by the CM and inform them about it and seek a remedy?" Justice Mishra questioned.Sibal responded that the Court should not assume that the Chief Minister has committed any offence. He said: "If ED is investigating under PMLA and some other offence has come to the notice of the officers, then the concerned agency, in this case State government, should be informed as per section 66 of PMLA."But Justice Misra said that Section 66(disclosure of information) of the PMLA does not apply in this case. "Section 66 PMLA may not apply. There are two distinct allegations. PMLA allegations which ED is enquiring about. Then the second set of offences which the petitioners herein are alleging that have been committe while the investigation of PMLA offence was undergoing."Sibal answered that assuming some offence has been committed, the offence can't be investigated by an authority outside the police station as per provisions of the Bharatiya Nagarik Suraksha Sanhita, 2023.Investigating agency doesn't have fundamental right to investigate: SibalSibal argued that allowing the ED to invoke writ jurisdiction under either Article 32 or 226 of the Constitution will open a "Pandora's box". He contended that investigative agencies can't claim they have a fundamental right to investigate."Officials of the government acting under the statutory provision in the event of obstruction in the performance of the duties their fundamental rights cannot be invoked since such statutory authority in exercise of their obligations under the statute has no fundamental right under the law," he submitted. Reading the ED's petition, Sibal also questioned how Articles 14 and 21 have been invoked by them when they themselves claim their statutory right has been violated." Where do articles 14 or 21 come in here? They are not talking about fundamental rights. It is their own case that they were performing their statutory duties which are frustrated. They say they were acting strictly in discharge of statutory duties," Sibal asked.Individual Officer Of ED Doesn't Cease To Be Indian Citizen: SCSibal also pointed out that a Deputy Director of the ED, Rohin Bansal, whose name appears in the cause title of the main writ petition, was nowhere present during the incident. He has neither shown that any of his fundamental right has been violated.On this, Justice Mishra responded that he may be a "shadow officer". Justice Mishra added "Just because they are officers of the ED, they cannot approach under Article 32? Suppose there is no petition of ED and there is only one petition filed by the officers of ED, [then] what way will you deal with that?""Merely because at that point of time they are officers of the ED do they cease to become citizens of India?" Justice Mishra asked.Senior Advocate Kalyan Banerjee(for Chief Minister) submitted that these are officers belonging to...

Can ED Go To State Police If CM Barges Into ED Raid? Supreme Court Asks West Bengal

Amisha Shrivastava & Gursimran Kaur Bakshi

The Court said that one does not cease to be a citizen of India by becoming an ED officer.

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