After HC delivers split verdict on Senthilbalaji’s arrest, SC refuses ED petition to take over case

Madras HC Division Bench produces a split verdict, with one judge ruling the Minister’s arrest as illegal and the other dissenting; SC asks Madras HC Chief Justice to constitute larger Bench to hear case

Updated - July 05, 2023 08:20 am IST

Published - July 04, 2023 05:15 pm IST - NEW DELHI/CHENNAI

The hearing in the Supreme Court came within hours of the High Court delivering the split verdict on July 4. File

The hearing in the Supreme Court came within hours of the High Court delivering the split verdict on July 4. File | Photo Credit: S. Siva Saravanan

The Supreme Court on July 4 refused to entertain a plea by the Enforcement Directorate to immediately transfer and decide the question of custody of Tamil Nadu Minister V. Senthilbalaji in a money-laundering case linked to the cash-for-jobs scam following a split verdict by the Madras High Court.

Instead, a Bench of Justices Surya Kant and Dipankar Datta requested the Madras High Court Chief Justice to expeditiously constitute a larger Bench to hear the case.

Also Read | On the arrest of Tamil Nadu Minister V. Senthilbalaji and its aftermath

The hearing in the top court came within hours of a Division Bench of the Madras High Court delivering a split verdict on a habeas corpus petition filed by Mr. Senthilbalaji’s wife, with one judge declaring that the Minister’s June 14 arrest in a money-laundering case was illegal, and ordering him to be released, and the other holding that the petition was not maintainable. After the pronouncement of the diametrically opposite verdicts, the matter was ordered to be placed before High Court Chief Justice S.V. Gangapurwala to name a third judge who will hear the case afresh, and whose decision will finally tilt the verdict by a majority of 2:1.

The Minister remains in a private hospital now, in judicial custody.

‘Risk of evidence tampering’

In the Supreme Court, Solicitor General Tushar Mehta, for the central agency, urged the Bench to authoritatively decide the “neat questions of law” as to whether a habeas corpus petition would stand after a judicial order of remand, and if the time spent by Mr. Senthilbalaji under medical treatment in a private hospital should be excluded from the period of custody allowed to the ED.

Watch | Tamil Nadu Minister Senthilbalaji’s arrest: What does it mean for the Stalin-led T.N. government? 

“He is an influential person. Every day that passes increases the risk of tampering of evidence in the case. The damage would be irreversible,” Mr. Mehta stressed vehemently.

‘Cannot bypass HC’

Appearing for Mr. Senthilbalaji, senior advocate Kapil Sibal and advocate Amit Anand Tiwari objected to Mr. Mehta’s suggestion to transfer the case to the Supreme Court. “How can you bypass the High Court? How can this request even be entertained? A three-judge Bench has to be constituted. They have to decide first,” they submitted.

Agreeing with Mr. Sibal, the top court asked the High Court Chief Justice “to place the matter before a larger Bench at the earliest and further to request the assigned Bench to decide the case as early as possible”. The Bench then adjourned the case to July 24, noting that the “pendency of the special leave petition will have no bearing on the proceedings before the High Court”.

Habeas corpus petition timeline

On June 21, the Supreme Court had left it entirely to the Madras High Court to decide whether the Tamil Nadu Minister’s move to a private hospital had thwarted the central agency’s “right to remand” and interrogate him on the money-laundering charges. The ED had approached the top court against the Madras High Court’s decision to entertain the habeas corpus petition filed by Mr. Senthilbalaji’s wife the day after he was arrested and remanded to police custody on June 14. The central agency had alleged that the High Court had allowed the Minister to be shifted to a private hospital, denying the ED its right to custodial interrogation.

The Supreme Court had then explained that mere entertaining of the habeas corpus petition by the High Court did not mean that it had found the plea “maintainable”, and noted that the High Court had already suggested that the ED could form its own specialist board of doctors to examine Mr. Senthilbalaji at the private hospital to see if he was fit for interrogation.

Earlier, on May 16, the top court had paved the way for the investigation to continue against Mr. Senthilbalaji, who is accused of taking bribes in exchange for jobs in the Metro Transport Corporation. The Supreme Court had set aside a Madras High Court order of October 31 last year, directing de novo or fresh investigations against the Minister, to be wrapped up in two months.

That judgment, authored by Justice V. Ramasubramanian (since retired), had also given the green signal for the the Enforcement Directorate to start proceedings in related money laundering charges against the Minister. That May judgment had eventually led to the arrest of the Minister.

Split verdict

In the Madras High Court on Tuesday, Justice J. Nisha Banu of the Division Bench held the petition to be maintainable, declared the Minister’s detention to be illegal, and consequently ordered his release, but Justice D. Bharatha Chakravarthy disagreed with the conclusions as well as reasons given by the senior judge on the Bench. He dismissed the petition and held it to be not maintainable.

Explaining the reasons for her conclusions, Justice Banu wrote that the relevant date for deciding whether a person’s detention was legal or not would be the date when the petition related to his detention was heard by the court. In the present case, the Minister was in the custody of ED when the petition was heard on June 22 and such custody was illegal, she said.

The judge pointed out that the Division Bench led by her had passed an order on June 15 to shift the Minister from a government hospital to a private hospital to perform a heart surgery. Then, the Bench made it abundantly clear that the Minister would remain in judicial custody even after being shifted to the private hospital.

Despite such a categorical order, the ED had approached the Principal Sessions Court in Chennai seeking permission to take the Minister in their custody for interrogation. The Sessions Court had granted permission for eight days on June 16,, though in law ED officials have no authority whatsoever to take any person in their custody, Justice Banu said.

‘Illegal custody’

She noted that Parliament had consciously not empowered ED officials to keep an accused in a money laundering case in custody beyond 24 hours of arrest, possibly because the evidence in such cases is predominantly documentary in nature and can be collected easily from banking channels using the sweeping powers conferred on the investigators.

“Therefore, the order of custody dated June 16, 2023 passed by the sessions judge 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 I have no hesitation to hold that the detention at the time of hearing of this HCP [habeas corpus petition] is illegal,” Justice Banu concluded.

She did not deal with the petitioner’s other grounds, such as the failure of ED officials to follow procedures at the time of arrest.

‘No exceptional circumstance’

In his dissenting verdict, Justice Chakravarthy cited a slew of Supreme Court verdicts and stated that a HCP could be entertained after the passing of a judicial remand order only in cases of absolute illegality, or total non-application of mind on the part of the detaining authority, or lack of jurisdiction, or wholesale disregard to fundamental rights.

No such exceptional circumstance had arisen in the present case, since the ED had categorically stated that the Minister refused to receive the grounds of arrest at 1:39 a.m. on June 14, though a perusal of the document clearly showed the details of the money laundering case registered against him as well as the reasons for resorting to arrest.

‘Arrest drama’

“From the very nature of the allegations in this case that there was non-cooperation and threat and allegation of manhandling leading to a drama at the time of arrest, it can be prima facie concluded that there is no ground to discard the veracity in the averment made on behalf of the respondent (ED) officials,” the judge wrote.

After perusing the SMS and e-mails sent by the ED officials to the Minister’s family members intimating his arrest and the judicial remand order wherein the sessions judge had recorded that she intimated him about the grounds of arrest, Justice Chakravarthy was convinced that the procedures were followed scrupulously.

He went on to state: “On a perusal of the counter affidavit, it would be clear that the accused behaved in a manner so as to intimidate the Investigating officer and did not furnish particulars necessary to trace out the money trail relating to the offence. He was also hampering the investigation. Therefore, on more than one ground, the arrest was necessary.”

Justice Chakravarthy, however, agreed with Senior Counsel N.R. Elango, representing the petitioner, that the Principal Sessions Judge ought to have considered the objections raised by the Minister before remanding him to judicial custody on June 14, instead of remanding him first and then citing that as a reason to reject the objections.

Custodial interrogation

Observing that unearthing the money trail was a difficult task in view of advancement of technology which paves way for wire transfers and off-shore investments, the judge made it clear that the ED would be entitled to subject the Minister to custodial interrogation after he became medically fit to undergo such interrogation.

Taking into consideration that the Minister had already undergone surgery on June 22, the judge ordered that he could continue to be in the private hospital only for 10 more days or until discharge, whichever was earlier, and thereafter, he must be treated only in a prison hospital where his physicians could visit and continue the follow- up treatment.

Before concluding his verdict, Justice Chakravarthy expressed displeasure over the ED officials having approached the sessions judge on June 16 seeking to subject the Minister to custodial interrogation, although Justice Banu and he had, on June 15, ordered that the Minister be shifted to a private hospital where he underwent beating heart coronary artery bypass surgery on June 22.

“I leave the respondents (ED) with the question as to whether it was fair and proper?” he wrote.

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