ED v West Bengal & Mamata Banerjee Over IPAC Raid : Live Updates From Supreme Court

Sibal: ED cannot ask the CBI to investigate. Unless there is a predicate offence ED cannot come into the picture, cannot file a writ petition for the fundamental right to have a the CBI lodge an FIR.

Matter to continue next week.

Sibal: assuming they have been threatened, what is the fundamental right here? Let's see section 221 of the BNS - obstructing a public servant who is discharging public duties. That is the answer.

J Mishra: Now see the prayer.

Sibal: issue a writ directing the CBI to register an FIR and investigate the entire incident in relation to obstruction of ED search.

Sibal: their purpose in the petition is please ask the CBI to investigate this but the ED can't ask that.

SG Mehta: we are not saying that CBI should investigate PMLA.

J Mishra: they are saying that the ED officers' safety was threatened.

Sibal: there is no power outside this Act so which is the fundamental right that they are claiming? Forget about the larger issue of 131 and the central government and that ED does not have any corporate personality. Under the statute itself authorised persons do not have a fundamental right and if they don't have a fundamental right certainly the enforcement directorate doesn't have a fundamental right

Sibal highlights section 51 of PMLA regarding jurisdiction of the authorities under the Act: "the authority exercises all or any of the powers and perform all or any of the functions conferred or assigned as the case maybe to such authority by or under this act."

Sibal takes the court through search and seizure powers of ED: This is not a fundamental right it is a statutory right. Power is with the central government to appoint persons under the statute to carry out the purposes of the statute. And to that extent it is a regulatory statute as well as an investigative statute.

Senior Advocate Kapil Sibal for Mamata Banerjee: ED and other investigating agencies are authorised by a statute to investigate an offence. It is not a fundamental right to investigate.

Divan: this was returned unanswered. I pointed this out because this was something the President sought assistance of the supreme court but the court felt that the that in the facts and circumstances that may not be necessary at that stage

Divan: see the question number 14 framed by the court - does the constitution bar any other jurisdiction of the Supreme Court to resolve disputes between the union government and the state government except by way of suit under Article 131 of the constitution.

Divan cites the recent judgement in the Presidential Reference.

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