Concurring with Justice Bharatha Chakravarthy, Justice Karthikeyan observed that though a habeas corpus petition is maintainable, it is not entertainable in the current case.
Published Jul 14, 2023 | 8:49 PM ⚊ Updated Jul 14, 2023 | 8:49 PM
The Madras High Court ruled that whatever the case has been laid against anyone punishable under Section 4 of PMLA has to be tried by the special court for PMLA cases. (Commons)
In a setback to Minister V Senthil Balaji, a third judge of the Madras High Court held that his arrest by the Enforcement Directorate (ED) was legally valid.
The Chief Justice of the Madras High Court appointed Justice CV Karthikeyan as the third judge after a division bench of justices Nisha Banu and Bharatha Chakravarthy delivered a split verdict on the matter.
After hearing the arguments of Solicitor General Tushar Mehta, who represented the ED, senior counsel Kapil Sibal who appeared for the minister, and NR Elango, who represented Balaji’s wife Megala, the judge also held that the central agency has the power to keep the minister in its custody.
The ED arrested Balaji on 14 June under the Prevention of Money Laundering Act (PMLA) in connection with a cash-for-jobs case when he was a minister in the AIADMK government.
Justice Karthikeyan held that if the investigation of ED requires the minister’s custody, then it could be sought as a matter of right.
“The concept of custody cannot be extended even if further materials are collected, but the fact that respondents can take custody for further investigation cannot be denied. The respondent, in this case, has a right to get custody,” Justice Karthikeyan ruled.
Rejecting the arguments that the grounds of the arrest were not informed to the minister, the judge said that money laundering was not a standalone offence that did not have any background.
“The respondents (ED) were at his doors since June 13. He (Balaji) should have known why. He can’t claim innocence,” the court said.
The judge also held that the detenu has to abide by the law and that every accused has a right to prove innocence during the trial but not the right to frustrate an inquiry or investigation.
On the ED’s argument that a Habeas Corpus Petition (HCP) was not maintainable, the judge said, “If the reasons to grant remand outweigh objections to remand, then certainly such remand will have to be granted.”
Balaji’s wife Megala had filed the petition.
“After the remand, the accused himself had applied for bail. That means he has submitted himself to the procedure of arrest. There can’t be bail without arrest,” the court said.
“Once the arrest and remand are made legal, an HCP will not lie. In this matter, I concur with the opinion of Justice Bharatha Chakravarthy that though an HCP is maintainable, in this case, certainly, it is not entertainable,” Justice Karthikeyan held.
Referring to a Supreme Court judgement in the case, the judge said, “It took judicial note of a peculiar fact and, according to them, in May 2021, the political climate in the state changed, but still, though the principle actors changed, the script remained the same for the victims and the political fortunes of the minister continued, as he got a place in the Cabinet, even in the new dispensation.”
“This judgement of the Supreme Court was not brought to the notice of the division bench by either side. But I will be failing my duty if I were not to examine this judgement which is the crux that led to ED proceedings,” the judge further said.
“In the instant case, the predicate offense was that the detainee or persons working under him, either directly or indirectly, with his knowledge or without his knowledge or in whatever manner, had received a bribe amount from various individuals holding out a promise that they would be given employment in the Transport Department,” he pointed out.
“This court has not forgotten their woes. Even if they are hidden and even if it is to be taken that they had willingly partaken with those whom they are now categorised as accused in the various calendar cases, still, it shouldn’t be forgotten that such money would have been given by selling off the bangles of the lady in the house or by mortgaging the house itself,” the judge said.
“The person so arrested will have to subjugate himself to the laws of trial and such trial must be under the process of CrPC,” he added.
On the question of excluding the period of Balaji’s hospitalisation, while calculating the period for custodial interrogation, Justice Karthikeyan held, “I once again align with the judgement of Justice Bharatha Chakravarthy and hold that the period of 15 days from the date of arrest.”
Further, the judge said the bench of justices Banu and Chakravarthy should decide the first day of custody since it was dealing with HCP.
“But as a statement, I would hold that exclusion of time is permissible,” he stated.
Further, the judge directed the court registry to place the HCP along with a copy of his order before the Chief Justice so that it could be forwarded to the division bench for further procedure.
A day after Balaji’s arrest, Megala filed a habeas corpus petition before the high court, requesting an order to produce her husband and set him at liberty.
In an interim direction, the court directed Balaji be shifted to a private hospital. He was initially admitted to the Government Multi-Super Specialty Hospital (GMSSH) at Omandurar Estate in Chennai after he complained of chest pain after the arrest.
Following the court’s directive, Balaji was shifted to the Kauvery Hospital, where he underwent a bypass surgery.
Meanwhile, the Principal Sessions Court allowed ED to take custody of Balaji for eight days.
The ED approached the Supreme Court against the maintainability of the habeas corpus petition and the high court order allowing Balaji to undergo treatment at a private hospital. The central agency argued that the days Balaji would spend in the hospital should not be considered as a custody period.
The apex court refused to interfere in the high court order and said it would hear the plea after the final verdict of the high court.
Megala questioned the ED’s right to take Balaji into custody for interrogation and prayed the court rule the arrest illegal.
The case against Balaji dates back to November 2014, when the Metropolitan Transport Corporation advertised a recruitment drive to fill up various vacancies. Soon, allegations of corruption surfaced.
Balaji was then the transport minister in the AIADMK government. He joined the DMK only in 2018.
The first complainant was one Devasagayam, who claimed in October 2015 that he gave ₹2.6 lakh to Palani, a bus conductor, who promised his son a job in the transport corporation. Devasagayam claimed the conductor did not fulfil the promise nor returned his money. However, Balaji’s name did not figure in the complaint.
Balaji came into the picture when another man, Gopi, filed a similar complaint in March 2016.
The complainant said he had paid ₹2.4 lakh to two individuals, reportedly related to Balaji, for a conductor’s job. Gopi later approached the high court, accusing the police of inaction.
The court ordered the Crime Branch Assistant Commissioner to probe the case. The probe report, however, implicated only the 12 individuals mentioned in Devasagayam’s complaint. The report, submitted in 2017, excluded the minister and his relatives.
Meanwhile, more people came up with complaints. Transport Department employee V Ganesh Kumar alleged that the transport minister and three others had directed him to collect ₹95 lakh from job aspirants.
After he became a minister in the DMK-led government, his personal assistant Shanmugam and another man, R Sahayarajan, approached the victims with a compromise formula. However, the compromise move was seen as an admission of bribery, which caught the ED’s attention.
