Habeas Corpus Writ Not Maintainable Against ED Alleging Illegal Arrest;Plea To Be Raised Before Magistrate: Supreme Court

The Supreme Court on Monday while dismissing Tamil Nadu Minister Senthil Balaji's plea challenging custody by Enforcement Directorate in the money laundering case, held that a writ of habeas corpus would not be maintainable on allegation of illegal arrest by the ED. The Apex Court clarified that the plea regarding illegal arrest is to made before concerned the Magistrate, since custody becomes judicial. A division bench of Justice A S Bopanna and Justice M M Sundresh observed that a writ of Habeas Corpus would not lie when other statutory remedies are available:“A writ of Habeas Corpus shall only be issued when the detention is illegal. As a matter of rule, an order of remand by a judicial officer, culminating into a judicial function cannot be challenged by way of a writ of Habeas Corpus, while it is open to the person aggrieved to seek other statutory remedies. When there is a non-compliance of the mandatory provisions along with a total non-application of mind, there may be a case for entertaining a writ of Habeas Corpus and that too by way of a challenge.” A writ of Habeas Corpus may be entertained when the mandate under Section 167 of CrPC, 1973 and Section 19 of PMLA, 2002 are not followed and it is specifically challenged, the Court clarified. But when an order is passed by a Magistrate with specific reasons for remand, it cannot be challenged by invoking the writ jurisdiction under Article 226 of the Constitution, the Court held. “In other words, a challenge to an order of remand on merit has to be made in tune with the statute, while non-compliance of a provision may entitle a party to invoke the extraordinary jurisdiction. In an arrest under Section 19 of the PMLA, 2002 a writ would lie only when a person is not produced before the Court as mandated under sub-section (3), since it becomes a judicial custody thereafter and the concerned Court would be in a better position to consider due compliance", the Court observed.The Apex in this regard placed reliance on State of Maharashtra v. Tasneem Rizwan Siddiquee, (2018) 9 SCC 745.“There is a difference between a detention becoming illegal for not following the statutory mandate and wrong or inadequate reasons provided in a judicial order. While in the former case a writ of Habeas Corpus may be entertained, in the latter the only remedy available is to seek a relief statutorily given", the Court observed."When an arrestee is forwarded to the jurisdictional Magistrate under Section 19(3) of the PMLA, 2002 no writ of Habeas Corpus would lie. Any plea of illegal arrest is to be made before such Magistrate since custody becomes judicial"Report about other aspects of the judgment can be read here.Case Title: V. SENTHIL BALAJI V. THE STATE REPRESENTED BY DEPUTY DIRECTOR AND ORS., CRIMINAL APPEAL NOS. 2284-2285 of 2023Citation : 2023 LiveLaw (SC) 611Click Here To Read/Download Judgment

Habeas Corpus Writ Not Maintainable Against ED Alleging Illegal Arrest;Plea To Be Raised Before Magistrate: Supreme Court

Sheryl Sebastian

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