ED concludes arguments before Supreme Court in plea against Mamata Banerjee for obstructing I-PAC raids

The Enforcement Directorate (ED) on Tuesday concluded its arguments before the Supreme Court in its plea alleging that former West Bengal Chief Minister Mamata Banerjee and State officials interfered with the agency’s investigation and search operations at the Kolkata offices of political consultancy firm I-PAC and its co-founder.

A Bench of Justices PK Mishra and NV Anjaria posted the matter for September 2 after Solicitor General Tushar Mehta and Additional Solicitor General SV Raju concluded their submissions on behalf of the ED.

Senior Advocate Menaka Guruswamy, appearing for Banerjee, is to continue her arguments in the matter on the next date of hearing.

At the outset of today's hearing, Guruswamy argued that the change in government in West Bengal meant that the present government could now consider whether the matter should be referred to the Central Bureau of Investigation (CBI). The Bench noted that the State could now take such a decision.

Mehta, however, said the ED was pressing its petition and did not want a subsequent CBI transfer to be attributed to political considerations.

“I don’t want to face allegation that the State government has done it because of political reasons. I don’t want to fall into that trap. That subsequently accused will say state government transferred to CBI etc because of change in government,” he said.

Raju then submitted that the Court would have to decide whether a CBI investigation could be ordered where a sitting Chief Minister, under whose government the State police functions, is accused of committing an offence.

“What happens to a sitting CM if she goes and commits a crime. Then can CBI investigate? That is the issue which is to be decided” Raju said.

The Court then continued hearing the matter on merits.

Background

The ED approached the Supreme Court under Article 32 of the Constitution alleging interference by Banerjee and State officials with its search operations at the Kolkata offices of I-PAC and its co-founder, Pratik Jain.

The agency has alleged that the interference resulted in the removal of physical and electronic material connected with its investigation.

The agency said there should be a CBI investigation into the incident.

During earlier hearings, the agency had argued that there was a pattern of failure of law and order in West Bengal and that State machinery had been used to obstruct investigations by central agencies.

Banerjee and others State officials have continuously opposed the maintainability of the ED’s Article 32 plea and questioned the agency’s locus to approach the Supreme Court for enforcement of fundamental rights.

Arguments today

Raju, appearing for ED officers, submitted that taking away records during the search amounted to theft and reiterated the agency’s case for a CBI investigation.

“Once they take possession of records, offence of theft is also made out. I’ve given a list of offences committed. We have said that CBI investigation is warranted in the facts of this case. The cross FIR should also be transferred to the CBI. This is the substance or my argument,” he said, concluding his arguments.

The Bench told Guruswamy that it did not want to continue hearing the case on maintainability and asked her to begin her submissions on merits.

Guruswamy continued to argue that the petition was not maintainable and relied on a series of Supreme Court judgments, including Sakiri Vasu, Doliben Kantilal Patel v State of Gujarat, Sudhir Bhaskarrao Tambe v Hemant Yashwant, and M Subramaniam v S Janaki.

She argued that the ED was effectively seeking registration of an FIR through a writ petition despite the availability of an alternative remedy under the Code of Criminal Procedure.

“This is not just on maintainability. This is all their prayers that I am answering through case laws,” she said.

She also argued that the State government had had four months since the change in government to register an FIR and seek consent for a CBI investigation, but had not done so.

The Bench pointed out that Guruswamy’s arguments on merits were necessary because the ED was also seeking relief on the merits of its case.

Guruswamy then relied on the provisions permitting a Magistrate to direct investigation under Section 156(3) of the CrPC and argued that disputed questions of fact could not be decided in writ proceedings.

“When questions of facts are highly disputed, they can’t be adjudicated in writ petitions. And we dispute their facts,” she said.

She referred to Gulab Das v Commissioner of Customs and Hindustan Construction Company v Union of India in support of her submissions.

Guruswamy argued that the CrPC provides a mechanism for investigation by the police and that the ED was seeking to bypass that mechanism by approaching the Supreme Court.

At the end of the hearing, the Court recorded that Mehta and Raju had concluded their arguments on merits, while Guruswamy and others were to continue on the next date.

The matter will be heard next on September 2.

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