V. SENTHIL BALAJI vs THE STATE REPRESENTED BY DEPUTY DIRECTOR, 2023

V. SENTHIL BALAJI vs THE STATE REPRESENTED BY DEPUTY DIRECTOR, 2023

Case Briefing: V. Senthil Balaji v. The State represented by Deputy Director and Ors. 2023

Case Title and Citation V. SENTHIL BALAJI versus THE STATE REPRESENTED BY DEPUTY DIRECTOR AND ORS.. CRIMINAL APPEAL NOS. 2284-2285 of 2023 (@SLP (Criminal) Nos. 8939-8940 of 2023), along with connected appeals. The judgment citation is 2023 INSC 677.

Factual Background

The appellant, V. Senthil Balaji, is a Cabinet Minister of the State of Tamil Nadu. An Enforcement Case Information Report (ECIR) was registered against him and others under the Prevention of Money Laundering Act, 2002 (PMLA, 2002). The Enforcement Directorate (ED) arrested the appellant on 14.06.2023 under Section 19 of the PMLA, 2002, finding that he was not cooperating. Following the arrest, the appellant complained of chest pain and was taken to a hospital. His wife filed a Writ Petition seeking a writ of Habeas Corpus. Meanwhile, the learned Principal Sessions Judge ordered the appellant to judicial custody until 28.06.2023. Subsequently, the Judge granted the respondents (ED) custody for 8 days, subject to the condition that interrogation occur at the hospital. The Habeas Corpus petition led to a difference of opinion within the Madras High Court Division Bench, prompting a reference. The majority opinion ultimately upheld the ED’s power to seek custody and found the Habeas Corpus petition generally not maintainable after the judicial remand.

Issue(s)

1. Whether a Writ of Habeas Corpus is maintainable after a judicial order of remand has been passed by a competent Court.
2. Whether the Enforcement Directorate (ED) has the power to seek custody of an arrested person under the PMLA, 2002.
3. Whether the period of hospitalization and judicial custody, where actual physical custody was not granted to the investigating agency, should be excluded when calculating the 15-day maximum custody period.

Decision of the Supreme Court

The Supreme Court dismissed the appeals filed by the appellant and his wife, thereby upholding the views expressed in the impugned judgments. The Court permitted the respondents (ED) to have actual physical custody of the appellant until 12.08.2023. The Court also directed the Registry to place the larger legal issue concerning the span of the 15-day police custody limit before the Chief Justice of India for reference to a Larger Bench.

Reason for the decision

1. Habeas Corpus Maintainability: A writ of Habeas Corpus will not lie when the arrestee is forwarded to the jurisdictional Magistrate under Section 19(3) of the PMLA, 2002, because the custody becomes judicial. Since the judicial remand orders were reasoned and speaking, they should have been challenged before a higher statutory forum, and not by invoking the extraordinary jurisdiction of a Habeas Corpus writ.
2. Power to Seek Custody: Section 167(2) of the Code of Criminal Procedure, 1973 (CrPC, 1973) is applicable and complements Section 19 of the PMLA, 2002. The words “such custody” occurring in Section 167(2) of the CrPC, 1973 include not only police custody but also that of other investigating agencies, such as the ED. The ED, therefore, has the power to seek custody.
3. Custody Calculation: The term “custody” under Section 167(2) of the CrPC, 1973 shall mean actual custody. Since the appellant was in judicial custody or hospitalized and physical custody was never given to the ED, the 15-day limit for police/agency custody had not expired.
4. Doctrine of Actus Curiae Neminem Gravabit: The curtailment of the 15 days of police custody by an extraneous circumstance or an order of the Court (such as the interim order directing hospitalization) would not act as a restriction on the investigating agency’s right to custody. An act of the court shall prejudice no man, meaning the ED must be allowed the full period of physical custody.
5. Section 41A CrPC: Section 41A of the CrPC, 1973 (requiring notice before arrest) has no application to an arrest made under the PMLA, 2002, which provides sufficient and distinct safeguards under Section 19.

Conclusion

The Supreme Court upheld the judicial orders of remand and confirmed that the ED was entitled to actual physical custody of the appellant for the remaining period. Furthermore, the Court noted its respectful disagreement with the precedent in Anupam J. Kulkarni (1992) and referred the larger legal issue regarding the distribution of the 15-day police custody period over the total investigation time (60 or 90 days) to a Larger Bench for an authoritative pronouncement.