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SC to revisit arrest shield in 45 cases, could take up more cases
A three-judge SC bench will next week start revisiting interim relief granted to accused in nearly 200 cases, mostly a stay on proceedings or a bar on arrest. The Centre complained relief was
NEW DELHI: The Supreme Court on Friday agreed to revisit its orders in over 45 cases where an interim order staying arrest was granted after the Centre complained that it was hindering the probe being carried out by federal agencies such as the Directorate of Enforcement and the Serious Fraud Investigation Office.
The top court’s decision to review the bar imposed on investigators from taking coercive arrest followed a request from solicitor general Tushar Mehta who submitted a list of 45 cases where such orders have been passed over a period of time. Mehta, who was appearing for the Enforcement Directorate, asked the court to set aside the stay orders granted in these cases.
These were mostly writ petitions filed by the accused challenging the constitutional validity of provisions under the Prevention of Money Laundering Act (PMLA), Companies Act, and Central Goods and Services Tax (CGST) Act. At the first hearing, the court would issue notice and grant ex-parte stay of arrest by ordering “no coercive steps”, Mehta, the Centre’s second senior-most law officer, told the three-judge bench led by Justice AM Khanwilkar.
The bench, also comprising justices Krishna Murari and V Ramasubramanian, said: “Our predicament is that this kind of an order directing no coercive steps has been passed in more than one case. We have to consider this for all cases. It should be a consistent order that is to be passed after hearing the other side. But we are going to revisit it.”
A five-page note submitted on behalf of the ministry of finance along with the ED’s list said: “The list annexed contains such matters in which the interim orders require to be vacated since in many of the cases, the proceedings before the competent courts are stayed and investigations have come to a standstill for the reason that this court has directed ‘no coercive steps to be taken’.”
When the three-judge bench starts the exercise on August 3, it could go beyond the 45 cases listed by the government.
Lawyers appearing for some of the accused have already supplemented the ministry of finance’s list of 45 cases and produced an exhaustive compilation of interim orders in matters relating not just to PMLA but under Customs Act, Companies Act, CGST Act and related laws.
The total cases, compiled so far, come to 198 cases. These petitions involve cases against former Home Minister P Chidambaram’s son Karti Chidambaram, former Religare Enterprises promoter Shivinder Mohan Singh among others.
Earlier, arguing against the practice of accused seeking relief while challenging the constitutional validity of legal provisions, Mehta pointed out a three-judge bench decision in Devendra Dwivedi v Union of India case in January 2021 where the Supreme Court, while dealing with a petition challenging the constitutional validity of provisions of CGST Act, refused to entertain the same.
In this case, the apex court held: “The constitutional challenge can be addressed before the high court, and the grievance with regard to the conduct of investigation can appropriately by addressed before the competent authority (high court) in the exercise of jurisdiction under Article 226, or as the case may be Section 482 or analogous provisions of the Code of Criminal Procedure (CrPC).”
The CrPC provides for the accused to apply for anticipatory or regular bail but this relief cannot be sought under a writ petition, Mehta argued.
On Friday, former Maharashtra home minister Anil Deshmukh also sought similar interim orders of stay of further proceedings and stay of arrest in the PMLA proceedings against him. The bench directed him to supply a copy of his application to the ED and Centre while posting his application on August 3.
