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.