This article on ‘Supreme Court says ‘ED Can’t Be Vindictive, Grounds Of Arrest Must Be Furnished In Writing To Accused At The Time Of Arrest’ was written by Shashanki Kaushik, an intern at Legal Upanishad.
On October 3, 2023, the Supreme Court of India issued a landmark judgement in the case of Pankaj Bansal v. Union of India, holding that the Enforcement Directorate (ED) must furnish the grounds of arrest to the accused in writing at the time of arrest. The Court also observed that the ED should not be vindictive in its conduct.
This judgement is significant because it upholds the fundamental rights of the accused under Article 22(1) of the Constitution of India, which guarantees the right to be informed of the grounds of arrest. It also serves as a check on the ED’s power, which has been criticized for being misused in some cases. The author will discuss this judgement of the Apex Court in detail in this article.
Facts of the case
The ED is a central government agency responsible for investigating and prosecuting cases of money laundering. It has wide powers to arrest, search, and seize property. In recent years, the ED has been increasingly used to investigate and prosecute high-profile cases, including those involving politicians and business leaders.
In the present case, Pankaj Bansal and his brother Basant Bansal, directors of the Gurugram-based realty group M3M, were arrested by the ED in connection with a money laundering case. The Bansals were not provided with the grounds of their arrest in writing at the time of arrest.
The Bansals challenged their arrest in the Punjab and Haryana High Court, which upheld the ED’s action. The Bansals then appealed to the Supreme Court.
Judgment
The Supreme Court bench, comprising Justices AS Bopanna and Sanjay Kumar, set aside the High Court’s order and ordered the release of the bansals. The Court held that the ED must furnish the grounds of arrest to the accused in writing at the time of arrest, without exception.
The Court observed that the right to be informed of the grounds of arrest is a fundamental right guaranteed under Article 22(1) of the Constitution. This right is essential to ensure that the accused can prepare a defence and seek bail.
The Court further observed that the ED is not above the law and cannot be vindictive in its conduct. The Court said that the ED must act with the utmost probity and fairness.
Implications of the judgment
The Supreme Court’s judgement is a significant victory for the rights of the accused. It serves as a reminder that even the ED, a powerful agency with wide-ranging powers, is subject to the law.
The judgement also has important implications for the ED’s investigative and prosecutorial practices. The ED must now be more careful in exercising its powers of arrest and search. It must also ensure that the rights of the accused are respected at all times.
Analysis
The Supreme Court’s judgement is a welcome step in the right direction. It upholds the fundamental rights of the accused and serves as a check on the ED’s power.
The judgement is also significant in the context of the ongoing debate on the ED’s alleged misuse of power. The Court’s observation that the ED cannot be vindictive in its conduct is a timely reminder to the agency to act with the utmost probity and fairness.
Recommendations
In light of the Supreme Court’s judgement, the following recommendations are made:
- The ED should issue clear guidelines to its officers on the procedure to be followed when arresting a person. These guidelines should emphasise the importance of furnishing the grounds of arrest to the accused in writing at the time of arrest.
- The ED should also train its officers on the rights of the accused and the need to respect those rights at all times.
- The government should consider establishing an independent oversight mechanism to monitor the ED’s investigative and prosecutorial practices.
Conclusion
Supreme Court’s judgement is a significant development in the Indian criminal justice system. It upholds the fundamental rights of the accused and serves as a check on the ED’s power. The judgement also has important implications for the ED’s investigative and prosecutorial practices. The government and the ED should take steps to implement the recommendations made in this article to ensure that the Supreme Court’s judgement is upheld and that the rights of the accused are protected.
List of references
- The Constitution of India, art. 22(1)
- ‘ED not expected to be vindictive in its conduct, must furnish grounds of arrest to accused: SC’, The Economic Times, 4 October 2023, available at: https://economictimes.indiatimes.com/news/india/ed-not-expected-to-be-vindictive-in-its-conduct-must-furnish-grounds-of-arrest-to-accused-sc/articleshow/104167751.cms?from=mdr
- ‘ED Can’t Be Vindictive, Grounds Of Arrest Must Be Furnished In Writing To Accused At The Time Of Arrest : Supreme Court’, LiveLaw, 3 October 2023, available at: https://www.livelaw.in/top-stories/ed-cant-be-vindictive-grounds-of-arrest-must-be-furnished-in-writing-to-accused-at-the-time-of-arrest-supreme-court-239238
- AnathaKrishnan G, ‘ED must give grounds of arrest in writing to accused: SC’, The Indian Express, available at: https://indianexpress.com/article/india/ed-must-give-grounds-of-arrest-in-writing-to-accused-sc-8967241/