‘ED Has No Vested Right to Seek Police Custody’: Mukul Rohatgi Argues in Senthil Balaji’s Case

The Directorate of Enforcement (ED) has no vested right to take an accused into police custody, even within the first 15 days when the magistrate’s permission must be sought for that, Senior Advocate Mukul Rohatgi told the Supreme Court on Tuesday. He said: “After the expiry of the initial 15 days, further remand during the period of investigation can only be in judicial custody. While in the first 15 days, custody may either be police or judicial, but after this period elapses, only one compartment will be available, which is that of judicial custody. But, even in the first 15-day period, there is no vested right to seek police custody. This, too, requires the magistrate’s permission.” A bench of Justices AS Bopanna and MM Sundresh was hearing a batch of pleas over the legality of DMK MP and Tamil Nadu minister V Senthil Balaji’s custody by the Enforcement Directorate in connection with a cash-for-jobs scam in the state. Balaji and his wife have both filed separate petitions challenging a verdict of the Madras High Court holding that the central agency was entitled to seek police remand and take him into custody. “The law frowns upon police custody,” Rohatgi argued before the bench, insisting that judicial custody was the rule, while police custody was an exception. In support of this contention, he relied on the 1992 Anupam Kulkarni ruling, in which the top court had said that an accused could not be detained in police custody after the expiry of 15 days from their initial arrest. He also invoked the rights guaranteed under Articles 21 (Protection of life and personal liberty) and 22 (Protection against arrest and detention in certain cases), saying, “The statutory provisions owe their worth to Articles 21 and 22.” Asserting that the Enforcement Directorate seeking police remand of Senthil Balaji was illegal, the senior counsel said: “The law frowns upon police custody. There is an express provision allowing police remand to be sought only in the first 15 days. But that too requires the authorisation of a magistrate…Therefore, the scheme is that judicial custody is a rule, and police custody is an exception. Police custody is subject to a magistrate applying their mind. That is why, judges in our country do not grant 15 days’ police remand at a stretch, but allows the accused to be taken into custody by the police for a couple of days at a time and then re-examines the request. There are no exceptions to this, even on the ground of seriousness of offence. That's what was held in Anupam Kulkarni, which is also identical in terms of facts.” Rohatgi also reminded the bench of the limitations of the powers of the court in interpreting statutes, while arguing that the time Balaji spent in a hospital during the first 15 days since his arrest could not be arrested. The senior counsel said: “Look at various provisions of the Arbitration Act, Income Tax Act, and even the Prevention of Money Laundering Act. In so many acts, there are express provisions for the exclusion of time. But, there is no provision for exclusion when it comes to seeking police remand here. The exceptions in the form of travelling time, exigencies of illness, and litigation time are already available but there is no exclusion. The court cannot legislate and grant an exclusion when the law does not grant the exclusion. It is for the Parliament to do. For our purposes, therefore, either such a provision exists, or does not exist. It cannot be read into the statute. There is no recourse. It is unfortunate. But the time is gone.” In this connection, Rohatgi also questioned the correctness of the Supreme Court’s decision in the April 2023 Vikas Mishra judgement, in which a bench headed by former judge MR Shah called for reconsideration of the Anupam Kulkarni bar on police custody beyond 15 days from the date of arrest. No decision, Rohatgi told the bench, can be arrived at contrary to a decision of a coordinate bench. “Justice Shah's decision suffers from this infirmity,” he added. In view of the conflicting legal positions adopted by previous benches, the senior counsel suggested that the bench refer this present case to a larger bench, saying: “It would be better to refer this to a larger bench. This court should follow what the law is in these kinds of conflicts and refer to a larger bench. That would ensure clarity. Because this question will arise again – if not now, in another few years.” In response to a query by the bench regarding the interim arrangement in the event the matter is referred to a larger bench, Rohatgi promptly said, “There cannot be an interim order in their favour. Because the law today says that there must be no police custody after 15 days.” He added: “It is not as if some golden right is lost forever. The Enforcement Directorate can still interrogate while the accused is in judicial custody. Just that, they will have to make...

‘ED Has No Vested Right to Seek Police Custody’: Mukul Rohatgi Argues in Senthil Balaji’s Case

Awstika Das

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