Madras High Court: In a habeas corpus plea filed by Megala wife of V. Senthil Balaji, Minister for Electricity, Prohibition & Excise, Tamil Nadu, who was arrested by the Directorate of Enforcement (‘ED’), wherein she has prayed for a direction against ED, to produce the body of the Senthil Balaji and to set him at liberty, C.V. Karthikeyan, J. held that ED has the power to seek custody of a person arrested. Further, the Court excluded the time spent by Senthil Balaji in the Hospital from the initial 15 days’ time for grant of custody to ED. It also held that the habeas corpus petition would be maintainable in exceptional circumstances, but this case does not attract any exceptional circumstance and consequently since an order of remand had been passed by a Court of competent jurisdiction, the relief sought in the petition cannot be granted.
Background:
In the instant case, the predicate offence was that Senthil Balaji, the then Minister for Transport or persons working under him either directly or indirectly, with his knowledge or without his knowledge or in some other manner had received bribe amounts from various individuals holding out a promise that they would be given employment in the Transport Department.
It is the grievance expressed by Megala that the entire process had directly affected the physical and other well-being of Senthil Balaji. It also complained that the grounds of arrest were not intimated to him and that his arrest was therefore illegal and violative of his right guaranteed by the constitution to be informed about the grounds of arrest.
After the division bench of J Nisha Banu and Justice Bharatha Chakravarthy, JJ. delivered a split verdict in the habeas corpus petition, SV Gangapurwala, C.J. has assigned the case to CV Karthikeyan, J. to break the split verdict tie.
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Issues and Analysis:
• Whether ED has the power to seek custody of a person arrested?
The Court took note of Section 167 (2) then provides that the said Magistrate to whom this particular accused is produced on being arrested, shall authorise the detention of the accused in such custody as the Magistrate deems fit. This detention shall be only for 15 days from the date of the first initial remand by the Magistrate. It could be less, but it cannot be more. The term ‘such custody’ since it is to be exercised within a period of 15 days has been alternatively stated to be judicial custody but custody to the Officers, who so produce the accused. The Legislature, in none of the enactments have stated about police custody.
The Court said that is a right vested with every accused to face the charges, to face trial, to question every witness and to establish innocence during the course of trial. But no accused has a right to frustrate investigation or enquiry.
The Court said that money laundering is an independent offence and a general protective order directed against another Investigating Agency could not insulate the petitioner from any coercive action in other proceedings started by a different agency. It had been accepted that the arrest is a step-in investigation. When an arrest is possible, then seeking custody for further investigation is permissible.
The Court said that it cannot be denied or disputed that ED have a right to investigate further. The factum of arrest is only a step-in investigation. There cannot be a foreclosure of investigation or further enquiry, merely because a person has been arrested. Investigation or enquiry into the offence can continue, till a complaint is lodged and even thereafter, if further materials are collected, the investigation or enquiry can continue. ED has a right to conduct investigation / enquiry after arrest. This can never be denied to ED. If such enquiry/ investigation is to be done only by taking the person arrested into custody, then this Court cannot sit as an appellate authority to examine the reasons stated therein. It is the Special Court which has the privilege to examine that particular aspect and pass orders. Thus, the Court held that ED have a right to take into custody.
• Whether the ED would be entitled to seek exclusion of time for the period of hospitalisation beyond the first 15 days from the date of initial remand?
The Court noted that an application seeking custody must be filed within the period of 15 days. It cannot be filed after a period of 15 days from the date of first remand. If it is filed within the period of the first 15 days and if it is impossible to have effective custody, then the issue is whether that period of impossibility consequent to hospitalisation can be excluded or not.
The Court said that in the instant case, custody has granted but on conditions. On the date when the custody was granted, Senthil Balaji was still in hospital. He was then operated on 21-06-2023. A series of conditions had been imposed making it impossible for ED to conduct any effective interrogation or investigation or enquiry. They could not even talk to him in the absence of medical persons.
The Court said that “it must be an effective enquiry. It must be an enquiry, which should lead, if possible, to further discovery of facts”.
Thus, the Court that exclusion of time as sought is permissible but left it to the wisdom of the Division Bench to actually determine the first date of such custody and the days for which exclusion should be granted, since the date of that judgment was 04-07-2023 and the conditions stipulated by Justice Mr. D. Bharatha Chakravarthy had long since lapsed. It is for the original Division Bench to re-examine the starting date of custody.
• Whether the Habeas Corpus Petition itself is maintainable after a judicial order of remand is passed by a Court of competent jurisdiction?
The Court noted that both the judges have stated the petition is maintainable. A clarification had been made by Justice D. Bharatha Chakravarthy, that if a judicial order of remand had been passed, then the petition would be maintainable only in exceptional circumstances. However, Justice Ms. J. Nisha Banu stated that since the order of remand itself stands vitiated, the petition is maintainable.
Thus, the Court examined the order of remand to determine whether it withstands scrutiny and whether it had been passed in a manner known to law or whether it should be interfered with by this Court.
The Court noted that in the instant case, an order had been passed on the application seeking remand. There cannot be bail without there being an arrest. There cannot be a remand without there being an arrest. Once Senthil Balaji had participated in those judicial proceedings, then it must be taken that he had submitted himself to judicial process. If a judicial order had been passed consequent to such judicial process and is said to be unlawful or without following the procedure, naturally, the remedy is to file a revision or appeal against it. It is the Court which now has custody of Senthil Balaji, and that custody stood vested with the Court consequent to an
The Court said that once an arrest has been initiated and it is stated by ED that Senthil Balaji had refused to receive the copy of the memo of arrest and also the ground of arrest, but it was informed to his brother and his wife, a reasonable strong presumption can be drawn that efforts had been taken to so inform the grounds of arrest. Therefore, once arrest is legal, remand is legal. A habeas corpus petition would never lie.
Thus, the Court held that the petition would be maintainable in exceptional circumstances, but this case does not attract any exceptional circumstance and consequently since an order of remand had been passed by a Court of competent jurisdiction, the relief sought in the petition cannot be granted.
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[Megala v. State, 2023 SCC OnLine Mad 4641, Order dated 14-07-2023]
Advocates who appeared in this case :
For Petitioner: Senior Advocate Kapil Sibal, Senior Counsel N.R. Elango , Advocate N. Bharani Kumar, Advocate Agilesh Kumar;
For Respondents: Solicitor General of India Tushar Mehta, Special Counsel Zohebltossain Kannu Agarwal , Additional Solicitor General ARL. Sundaresan , Special Public Prosecutor N. Ramesh.
