'Not a happy situation', Supreme Court on Bengal CM Mamata Banerjee interrupting ED raids

New Delhi: The Supreme Court (SC) on Wednesday said West Bengal Chief Minister Mamata Banerjee, interrupting raids conducted by the Enforcement Directorate (ED) at I-PAC office in Kolkata in January this year, was not a "happy situation," and the central investigating agency cannot be left remediless when its functioning is interrupted.

Taking a up a writ petition filed by the ED for a CBI probe into alleged obstruction of public duty by Banerjee and other top officers, a bench of Justices Prashant Kumar Mishra and N V Anjaria declined to adjourn the hearing on a request by the state government counsel, saying they cannot "dictate" to the judiciary on how to proceed in a case.

Senior advocate Shyam Divan, for one of the respondents, sought time to file a response to a rejoinder affidavit filed by the ED.

Solicitor General Tushar Mehta, for the ED, opposed the move, calling it a delaying tactic, as the rejoinder had been filed four weeks earlier.

“If you want to delay the matter, at least have a decent ground,” Mehta quipped.

Divan contended that the rejoinder contained fresh allegations beyond the case’s scope. Senior advocate Menaka Guruswamy, who was representing the state government, supported the contention.

However, the bench said it will continue to hear the matter. It said that ED can begin the arguments, and the state government can respond later.

Divan argued that if court was to proceed by ignoring the ED's rejoinder, there would not be any objection.

"Why should we ignore anything? You cannot dictate and decide how we go about the case. We will consider everything which is on record," the bench said.

Divan said it is a sensitive matter which requires detailed response. The bench made it clear that it is not inclined to adjourn the matter.

Divan contended that the state's preliminary objection to the maintainability of the ED's petition must be heard first.

To this, Mehta said it can be considered along with the merits. After this, the bench allowed Divan to argue on preliminary objections.

The bench also told the state that its Chief Minister interrupting raids conducted by the ED, is not a "happy situation," and the central investigating agency cannot be left remediless when its functioning is interrupted.

"What happened is not a happy situation," the bench said to the ED's allegation that Banerjee "barged" into the IPAC office while a money laundering probe was on.

The state counsel said the ED has no power to move the high court under Article 226 or the apex court under Article 32.

The bench said, "Someday some other CM may enter some other office, then who will decide? We decide issues when a new situation emerges, there can't be a vacuum in such situations."

Divan argued that the ED lacked juristic personality, as it was only a government department, and allowing a central department to file a writ petition against a state government would be dangerous to the federal structure.

It was also contended that Article 32 is fundamentally designed to secure the enforcement of fundamental rights, which only persons, whether natural or juristic, may invoke. It was also submitted that since the ED does not possess such a status, it cannot claim any violation of fundamental rights.

In its plea, the ED sought the CBI probe against the CM, DGP, and the Kolkata police commissioner, claiming that they have obstructed a lawful money laundering probe, forcibly snatching digital devices and documents, and wrongfully confining ED officers during search operations at the political consultancy firm I-PAC

Mehta submitted that the ED was not asking the CBI to investigate the PMLA offence, but rather the offence committed by the chief minister and others.

Senior advocate Kapil Sibal, for the chief minister, said the ED does not come into the picture unless there is a predicate offence.

The bench, however, said it is not about a PMLA offence that the ED has moved before the apex court.

"What we have understood from reading the petition is that the ED are claiming fundamental right qua their safety. Their safety while investigating the offence…their main plea is that while investigating the offence under PMLA they have been threatened," the bench said.