Supreme Court Adjourns ED's Plea In Senthil Balaji Case; Decides To Wait For Madras High Court's Final Verdict

The Supreme Court on Wednesday adjourned the hearing in the petitions filed by Enforcement Directorate against the Madras High Court entertaining a habeas corpus petition filed against the arrest of Tamil Nadu Minister Senthil Balaji and allowing him to be shifted to a private hospital for medical treatment.

A vacation bench comprising Justices Surya Kant and Justice MM Sundresh adjourned the hearing of the petitions in view of the fact the Madras High Court is set to hear the matter tomorrow. The bench refrained from passing any substantive orders today, despite strong persuasion by the Solicitor General of India, and decided to await the outcome of the matter in the High Court.

Arguments of ED

Solicitor General of India Tushar Mehta, appearing for ED, took objection to the High Court passing the interim order in a habeas corpus petition filed by the wife of Senthil Balaji. He argued that habeas corpus petition is not maintainable against arrest by an authority in accordance with law. He pointed out that the argument of the petitioner before the High Court was that the arrest was illegal as notice under Section 41A CrPC was not served. However, the Supreme Court in Vijay Madanlal Choudhary case held that Section 41A CrPC is not applicable to proceedings under the Prevention of Money Laundering Act.

SG said that the High Court entertaining the habeas corpus petition itself was illegal. In response, the bench said that the High Court is yet to hold that the petition is not maintainable. Entertaining the petition should not be confused as holding the petition as maintainable, the bench pointed out.

Justice Kant asked if the Supreme Court can pass a "pre-emptive order" assuming that the High Court has held the petition to be maintainable. When the SG argued that the High Court's approach is contrary to Supreme Court's settled precedent in Rahul Modi case, the bench said that the ED can raise these issues before the High Court.

"The High Court has merely issued notice in the habeas corpus petition. You have a right in law to urge before the High Court that the habeas corpus petition is not maintainable. All those judgments you can cite and we have no doubt that the High Court will consider them and pass appropriate orders", Justice Kant said.

The SG then came to his second point regarding the interim order which allowed Balaji to be shifted to a private hospital. He argued that the interim order has in effect meant that the ED's remand is meaningless.

"The point is should you get police remand only after the medical board declares the man to be fit and healthy. The question is should it be postponed till a point till he recovers. That is the only point", Justice Kant said. However, the SG said that the Supreme Court has held in Anupam J. Kulkarni case that police remand cannot be given beyond the first 15 days of arrest. Pointing out that this view was doubted in a later decision, the SG urged for a clarification to be passed that the days spent in hospital treatment will not be counted in the first 15 days period. However, the bench said that the matter is now under the consideration of the High Court.

"The High Court will have to follow the judicial principles. And in case of any error by the High Court, we will examine it...",Justice Kant said.

"I am happy that the Court has held that a habeas is maintainable against a remand, I hope all citizens avail this remedy. But some are more equal than others. This sets a bad precedent", SG said with a sarcastic tone. But the bench was quick to respond that the High Court is yet to decide on the maintainability. It also pointed out that the High Court has granted liberty to the ED to form a Specialists' Panel to determine the health of the accused.

The SG repeated his plea that the period of hospitalisation be excluded from the first 15 days. But the bench refrained from considering this plea, saying that the High Court is considering the matter. The bench also pointed out that ED could have requested the Special Court to defer the period of remand till the hospitalisation period is over.

"The trial court says that it will not consider since the High Court is examining. The Supreme Court also says it will not examine as the High Court is examining. Kindly say our predicament. We are left remediless", the SG pleaded. He also asked how can the ED raise the plea for exclusion of period in the habeas petition filed on behalf of the accused. However, the bench said that the ED can raise all these issues before the High Court.

Senior Advocate Neeraj Kishan Kaul, appearing for Balaji, said that the High Court has left all the issues open. He underlined that Balaji had four cardiac blockages and he is now in post-operative stage. "A bogey is raised that I got myself admitted. I was taken by them and was examined by a panel of government doctors", Kaul stated.

After the hearing, the bench passed the following order :

"Since the High Court is yet to render its final opinion on the issues -(i) maintainability of the habeas corpus petition, (ii) the exclusion of the period of treatment undergone by the detenu from the period of custodial interrogation - and since both these issues are likely to be examined by the High Court on the date fixed i.e June 22 or any other subsequent date , we deem it appropriate to post these special leave petitions for hearing on 4th July. We request the High Court to proceed with the matter on merits. It is clarified that the pendency of these special leave petitions shall not be taken as a ground to adjourn the hearing before the High Court. The observations made by the High Court in the interim order or any oral observations made by this Court shall have no bearing on the merits of the case."