Madras High Court tie-breaker judge rules against release of Senthil Balaji in money laundering case

The Madras High Court Friday ruled against the release of Dravida Munnetra Kazhagam (DMK) minister, V Senthil Balaji, who was arrested last month by the Enforcement Directorate (ED) in a money laundering case..Justice CV Karthikeyan passed the ruling in a habeas corpus petition filed by Balaji's wife for his release after two judges of the High Court earlier found themselves unable to agree on the matter..Justice Karthikeyan held that while a habeas corpus petition can be filed even after an order of remand is passed, and that such plea can be entertained under special circumstances, in the present case, since Senthilbalaji's arrest by the Enforcement Directorate (ED) was legal, there was no question of quashing such arrest and releasing the minister from custody..The judge also held that though ED officers were not police officials, they had every right to seek the custody of an arrested accused for the purpose of their investigation, or, inquiry.Justice Karthikeyan thereby, agreed with the opinion earlier rendered by Justice Bharatha Chakravarthy on these two aspects.."It has been held in Vijay Madanlal that ED are not police officials, but nowhere it is said that they cannot take custody. If investigation requires custody, then custody can be sought as a matter of right. When arrest is possible, then seeking custody is also possible. Once the arrest is legal and the remand is legal, I have to concur with the view taken by Justice Bharatha Chakravarthy that the HCP though maintainable, cannot be allowed", Justice Karthikeyan said..In his order, the judge stated,"If investigation requires custody then custody is to be given as a matter of right. The accused has a right to prove innocence during trial but no accused has a right to frustrate inquiry. Even prior to his Ill health, the accused refused to accept grounds of arrest and then claimed he was not provided grounds of arrest. This cannot be considered by this Court. It must be declared a falsity ... When arrest is possible, then seeking custody is also permissible.".On the question of whether the period that Senthilbalaji has spent in hospitals following his arrest should be excluded from the period of the first 15 days of his remand, Justice karthikeyan again concurred with the view taken by Justice Chakravarthy.He held that soon after his arrest, the Minister had complained of ill health and hence, was taken to the government hospital by ED itself. Since the central agency had been unable to question Senthilbalaji owing to the Hospital protocol, despite having been granted permission for his custodial interrogation, such period of hospital stay should be excluded from the period of remand, Justice Karthikeyan held.However, the judge left it to the wisdom of the division bench to determine the starting date from which such period of exclusion should be calculated. ."But, as a statement of law, I would hold that exclusion of time is permissible," Justice karthikeyan said..The judge proceeded to ask the Registry to place the matter before the Chief Justice's bench so that the matter can be placed once again before the division bench and a final order can be passed after taking his opinion into consideration..Justice Karthikeyan passed the order after also considering the Supreme Court's ruling in Y Balaji v. Karthik Desai, wherein the top court had refused to discharge Balaji in the cash-for-jobs scam in May this year. In the said judgment, the Supreme Court had observed that when the accused and the complainant arrived at a compromise, they also compromised on "justice, fair-play, good conscience and the fundamental principles of criminal jurisprudence.".Referring to the said observation, Justice Karthikeyan observed,"The Supreme Court's observations are very telling. They go to the root of the matter to show why the June 13 search was conducted by ED. This Supreme Court judgment was not pointed out before the division bench by either side. I will be failing in my duty if I didn't examine this judgment as that is what led to the ED proceedings.".The Court proceeded to outline the various powers conferred on the ED before concluding that the plea for Balaji's release should be dismissed. .The judge observed that the issue arose because of complaints that the process of Balaji's arrest and detention had affected his well-being. He took note of the submission that Balaji was not intimated of the grounds on which he was being arrested, thereby violating his Constitutional rights. .However, he proceeded to highlight the ED's contention that Balaji did not cooperate with the probe agency and threw tantrums, threatened officials, and also refused to sign the memo of grounds of arrest..In his order, the judge held,"The respondents were at his (Balaji's) doors since June 13. He should have known why. He can't claim innocence ... If the reasons to grant remand outweigh the objections to remand, then certainly such remand will have to be granted.".The minister was arrested last month in connection with a cash-for-jobs scam after undergoing questioning by the ED in the case.The case arose from alleged irregularities in the appointment of bus conductors in the State transport department and the appointment of drivers and junior engineers.All of these appointments were made during Balaji's tenure as Transport Minister in the AIADMK government between 2011 and 2015.Balaji was placed under judicial custody after he was remanded by a sessions court. However, instead of prison, he was eventually shifted to a private hospital where he was admitted for bypass surgery.Meanwhile, his wife moved a habeas corpus petition before the High Court for his release. .In the split verdict passed last month, the High Court division bench held that a habeas corpus plea would be maintainable even after an order of remand is passed by the magistrate if there is absolute illegality in the arrest of the concerned person.However, while the two judges on the bench - Justices Nisha Banu and D Bharatha Chakravarthy - agreed on the aspect of maintainability, they differed on the issue of the powers of the ED to seek custody of an arrested person.While Justice Banu ruled that the Minister’s arrest by the ED was illegal and Senthilbalaji should be released from custody, Justice Chakravarthy differed and held that there had been no illegality or misuse of law in Balaji’s arrest and, therefore, there was no question of releasing the minister.After both judges pronounced their respective orders, Justice Banu had directed the Registry to place the matter before the Chief Justice for further orders.The matter was then heard by Justice Karthikeyan, who dictated his judgment in open court today after hearing arguments over the course of this week..Senior Advocates Kapil Sibal and NR Elango appeared for Balaji's wife. Solicitor General Tushar Mehta and Senior Advocate AR L Sundaresan appeared on behalf of the ED..[Read Live Coverage of the Hearing]