V Senthil Balaji split verdict: Madras High Court says Habeas Corpus maintainable even after remand if there is blatant illegality

A plea before High Court for issuance of Habeas Corpus writ 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, the Madras High Court said on Tuesday..This ruling came in the High Court's split verdict in the petition filed for release of Tamil Nadu Minister V Senthil Balaji who was arrested by the Enforcement Directorate (ED) in a money laundering case. 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 ED was illegal, Justice Chakravarthy differed and held that there had been no illegality or misuse of law in Senthil Balaji’s arrest and, therefore, the Habeas Corpus petition (HCP) was not maintainable.In arriving at their respective conclusions, both judges considered a common question - whether a writ of Habeas Corpus can be entertained by the appellate court after an order of remand has been passed in the matter?.Both the judges agreed that once an order of remand is passed following the arrest of a person, the same can be challenged only through an appeal against the remand order. However, the exception to such rule is when the arrest is totally illegal in which case an HCP would lie, the Court said.Therefore, while considering the HCP in Senthil Balaji’s case, what has to be examined is the nature of detention at the time of hearing of the HCP, the judges said..In this regard, the two judges differed..The judges noted that the HCP was filed on June 14 at around 10.30 am and the plea claimed that Senthil Balaji’s arrest was illegal since ED had failed to issue notice of appearance under Section 41A of the CrPC before resorting to arrest. The HCP was listed before a Bench of Justices M Sundar and R Sakthivel on the same day, the Court noted.However, Justice Sakthivel recused himself from hearing the case and by that time, Principal Sessions Judge S Alli visited the government hospital and around 3.45 pm on June 14 and remanded the Minister to judicial custody. When the HCP was later listed before the bench led by Justice Banu on June 15, it ordered shifting the Minister to the private hospital while clarifying that Balaji will continue to be in judicial custody even while continuing at the hospital.ED, however, went back to the Sessions judge on June 16 and sought Balaji’s custody, which was granted for eight days..Justice Banu said that such permission for custodial interrogation should not have been granted to the ED considering the High Court’s June 15 interim order and the fact that ED was not equivalent to an SHO. Section 167 of the Criminal Procedure Code (CrPC) permits the officer in charge of a police station or the Station House Officer (SHO) to seek custody of an arrested person.However, Senthil Balaji has been charged under the Prevention of Money Laundering Act (PMLA) and the ED did not have the powers of a police officer under PMLA, Justice Banu said.It is an admitted and settled position that no custody of any kind is permissible under the constitutional and statutory scheme except through the procedure established by law, she ruled."So, in our view, unless the ED Officers are conferred with the powers of the Officer in Charge of a Police Station under PMLA, 2002 within the meaning of Sec 167 and 2 (o) of CrPC, police custody to ED under PMLA is impermissible,” Justice Banu said.This vitiated the whole process and made Balaji’s custody illegal, she ruled.“For the reasons discussed in detail in para 8.11and 8.12 of the order ibid, ED is not entitled to custodial interrogation of the accused under the PMLA, 2002. Therefore, the order of custody dated 16.06,2023 passed by the learned PSJ is without jurisdiction and without authority of law and therefore is illegal. The order fails the test of legality both of law and omission to follow judicial discipline and we have no hesitation to hold that the detention at the time of hearing the Habeas Corpus Petition is illegal,” Justice Banu said while allowing the HCP and holding that the minister should be set free..Justice Chakravarthy agreed that the ED seeking Balaji’s custody despite the High Court’s June 15 interim order was “disturbing”.However, he said that the Minister’s custodial interrogation was essential given that public money was involved in the case.."In this case, the learned Senior Counsel are not arguing that Section 167 Cr.P.C., will not be applicable and the accused cannot be produced before the appropriate Court for authorising the proper custody being the judicial custody or Police custody. The only contention which is made is that when once the language used in section speaks of Police custody and since it is the contention of the Enforcement Directorate that they are not Police officers, then they are not even entitled to seek Police custody. I am not able to accept these submissions because firstly, under Section 167(2) of Cr.P.C., the phrase used is “authorise detention of the accused in such custody as the Magistrate thinks fit”. Therefore, the word “Police” is not even specifically used at the first instance. In any event, when Section 65 of P.M.L.A expressly makes it clear that the provisions in the Code of Criminal Procedure relating to investigation will apply to P.M.L.A, then Section 167 Cr.P.C., should be applicable to mutatis mutandis and therefore, the word “Police” has to be read as Investigating Agency or the Enforcement Directorate. Therefore, the first contention that the Enforcement Directorate cannot seek for Police custody is without any merits,” Justice Chakravarthy said..After both judges pronounced their respective orders, Justice Banu directed the Registry to place the matter before the Chief Justice for further orders.It is likely that Chief Justice SV Gangapurwala will assign the matter to a third judge to hear the matter. .[Read Judgment]