New Delhi, March 24 The Supreme Court on Tuesday questioned the West Bengal government over its objection to the maintainability of the Enforcement Directorate's plea regarding the alleged obstruction by Chief Minister Mamata Banerjee during a raid, asking about the fundamental rights of ED officers.
The top court remarked that some officers of the ED have filed petitions in their individual capacity seeking to know whether they cease to be citizens of India merely because they are officers of the agency.
The West Bengal government has questioned the maintainability of the ED's plea, which alleged obstruction by Banerjee and other state authorities during its January 8 search of the office of political consultancy firm Indian Political Action Committee's (I-PAC) in Kolkata. The search was in connection with a money-laundering probe.
A bench of Justices Prashant Kumar Mishra and N V Anjaria was told by senior advocate Kapil Sibal, appearing for Banerjee, that a person who moves the court under Article 32 of the Constitution has to specifically set out which fundamental right of his has been violated.
"Please concentrate on the fundamental rights of the officers of the ED with whom the offence has been committed. If you only concentrate on ED, ED, ED and forget the second petition which is preferred by the individual officers who were the victims of that offence, you may miss the point and you will be in difficulty," Justice Mishra observed.
Sibal argued that the person (Deputy Director Robin Bansal) who filed the writ petition has not claimed a violation of any fundamental right.
"Not only that, assuming he has a fundamental right, then the petition must state which fundamental right has been violated," he said adding that in this particular case the ED is not even a person.
Sibal said any obstruction in the performance of a statutory duty is not a violation of a fundamental right.
"If someone obstructs a police officer, he can't file a petition under Article 32. He also can't file a 226 petition. There will be a prosecution launched for the obstruction of violating his right to discharge his functions," Sibal said.
At this juncture, Justice Mishra remarked, "If the CM barges into an ED investigation and commits an offence, your idea of remedy for the ED is to go to the state government which is headed by the CM and inform them about it and seek remedy?"
Responding to the question, Sibal said, "Your lordships are assuming that the chief minister has committed an offence."
"If ED is investigating under the Prevention of Money Laundering Act and some other offence has come to the notice of the officers, then the concerned agency, in this case the state government, should be informed as per Section 66 of PMLA," Sibal said.
Justice Mishra then said, "We are not assuming anything. That is the allegation.
"Do not mistake us. Every allegation is based on some facts, if there are no facts, there is no need to be investigated. That is what they are praying for, for CBI to investigate."
Questioning the maintainability of the ED's plea over alleged obstruction by Chief Minister Banerjee during a raid, Sibal said a deputy director mentioned in the cause title was not present while the raids were being conducted.
Senior advocate Kalyan Banerjee, also appearing for the chief minister, argued that the state has to give consent for a CBI investigation and the constitutional court has the power in other cases.
The hearing remained inconclusive and will continue on April 14.
On January 15, the top court said the West Bengal chief minister's alleged obstruction in the ED's probe is "very serious" and agreed to examine if a state's law-enforcing agencies can interfere with any central agency's investigation into any serious offence as it stayed FIRs against the ED officials who raided I-PAC.
The ED has alleged interference and obstruction by the state government, including by Banerjee, in its probe and search operation at the I-PAC office and the premises of its director, Pratik Jain, in connection with an alleged coal-pilferage scam.
The top court, while staying the FIRs filed in West Bengal against the ED officials, had also directed the state police to protect the CCTV footage of the raids.
It had issued notices to Banerjee, the West Bengal government, former state DGP Rajeev Kumar and top cops on the ED's petitions seeking a CBI probe against them for allegedly obstructing its raids.