Senthil Balaji Case: Madras High Court Frames Points Of Difference In Split Verdict, To Hear Arguments On July 11

Justice Karthikeyan heard senior counsel NR Elango, appearing for Megala and Solicitor General Tushar Mehta assisted by Additional Solicitor General ARL Sundaresan and Special Public Prosecutor N Ramesh for the Enforcement Directorate and said that it would begin hearing of the arguments on July 11 and July 12.

The Judge emphasized that as per Clause 36 of the Madras High Court Letter Patent Act, the third judge to whom the split verdict was referred could hear arguments only on points of difference of opinion. In cases where one of the Judges had not expressed any opinion and the other judge had expressed an opinion, the court noted that whenever points of difference were not framed by the judges, the third judge could cull out those points and answer them.

In the present case, the court noted that Justice Banu had not given any opinion with respect to application of Section 41A CrPC vis-à-vis the Prevention of Money Laundering Act whereas Justice Chakravarthy had given his opinions. Since the entire issue revolved around arrest, the court deemed it fit to let the parties raise arguments on this aspect also.

The court thus framed the below three points of difference on which the arguments could be advanced by the parties:

Whether Enforcement Directorate has powers to seek custody of person arrested?

The court noted that on this particular aspect, while Justice Banu concluded that ED did not have such power, Justice Chakravarthy said that ED was vested with such powers to seek custody. Since such divergent views existed, the court said that it would permit arguments on this aspect to reach a definite conclusion

Whether HCP is maintainable after a judicial order of remand is passed by court of competent jurisdiction?

The court noted that this issue comprised of two aspects – maintainability and entertainability. The court noted that while Justice Banu opined that the petition was maintainable, Justice Chakravarthy noted that HCP was maintainable only in exceptional cases and in the present case, no such situation arose.

The ED also submitted that since there was an order of remand, the authorities did not have custody of the detenu and thus could not be directed to produce the body of the detenu and thus the HCP could not be put into effect. On the other hand, the petitioner argued that since the arrest itself was vitiated for not following due process, the order of remand was also questionable and therefore the HCP was maintainable.

Whether ED would be entitled to seek exclusion of time for period of hospitalization beyond first 15 days?

With respect to this issue, the court noted that since the detenu was now in hospital, the point of consideration would be whether, upon his recovery, custody would be effective from the first day on which actual physical custody is handed over to the ED or whether the period would automatically lapse consequent to the expiry of first 15 days of remand.

Case Title: Megala v State

Case No: HCP 1021 of 2023