The Supreme Court indicated it may transfer to the CBI the ED’s plea alleging Mamata Banerjee obstructed its I-PAC search, as her counsel opposed it on maintainability. Hearing on September 2.
New Delhi: The Supreme Court on Tuesday indicated that it was inclined to transfer to the Central Bureau of Investigation (CBI) the investigation into the Enforcement Directorate’s (ED) allegation that former West Bengal Chief Minister Mamata Banerjee obstructed its search of the office of I-PAC — the political consultancy associated with the All India Trinamool Congress — even as counsel for Banerjee resisted the plea and pressed that the matter was not maintainable [Directorate of Enforcement and Anr. v. The State of West Bengal and Others, WP (Crl) No. 16/2026].
A Bench of Justices Prashant Kumar Mishra and N.V. Anjaria heard the matter, which arises from a writ petition by the ED and its officers seeking the registration of an FIR and an investigation against Banerjee and certain police officials who, the agency alleges, abetted the obstruction during a search conducted in January this year.
A change of government shifts the ground
The hearing opened on an unusual note, shaped by the change of government in West Bengal since the petition was filed. Senior Advocate Menaka Guruswamy, appearing for Banerjee, submitted that with a new government now in place, the State police could investigate the matter, and that it was for the government — not the Court — to take a decision on any transfer, her side conceding nothing on the merits.
Justice Mishra initially indicated that, given the subsequent developments, little remained to be decided and the matter could be disposed of by enabling the transfer the ED had sought — “You can refer to CBI, we will enable you,” he observed, before beginning to dictate an order.
The ED insists the Court decide
At that point Solicitor General Tushar Mehta, appearing for the ED, interjected to press that the agency wanted the larger issue decided rather than the petition disposed of on the strength of the political change. He was emphatic that the ED did not want the transfer to rest on the change of government:
“We don’t want to face any allegations that State Government, because of political reasons, has done it. Either we are right or wrong, I want mylords to decide. I don’t wish to fall in the death trap that, subsequent to the changes in the government, the State transferred it to the CBI.”
Additional Solicitor General S.V. Raju framed the question the ED wanted answered as one of principle — the appropriate forum where the person accused holds the highest executive office in the State:
“Therefore, the issue is this, if a sitting Chief Minister, who happens to be the Home Minister, if she commits a crime, is it an appropriate case for the CBI to investigate or not?”
The maintainability dispute
A substantial part of the hearing was consumed by a disagreement over what had actually been argued. When the Bench indicated it would reserve the matter, Guruswamy submitted that the arguments so far had gone only to the maintainability of the ED’s writ petition, and that the merits had not been addressed — a characterisation the Solicitor General disputed, contending that both maintainability and merits had been argued.
The Court declined to bifurcate the hearing, making clear it would decide both questions together rather than in two rounds. Justice Mishra cautioned Banerjee’s counsel that insisting on a separate merits hearing could work against her side:
“There is nothing on merits; if you argue on merits, whatever materials you call it merits, then there will be difficulty for you. If we decide if it’s maintainable, we will refer to the CBI… The moment you want us to decide on merits, we will record something which will harm you. I am telling you, be ready for it.”
He added that the Court would regulate its own procedure — “You can’t compel us to first decide on maintainability and then merits. It’s our call.”
The legal objection to an FIR through a writ
Arguing on maintainability, Guruswamy contended that the ED’s chosen route was impermissible. She relied on a line of authority — including Sakiri Vasu v. State of U.P. — for the proposition that where the police fail to register an FIR or conduct a proper investigation, the aggrieved person’s remedy is to approach the judicial magistrate under Section 156(3) of the Code of Criminal Procedure, rather than to seek the registration of an FIR through a writ petition. She submitted that a writ petition seeking the registration of an FIR was, on the settled law, not maintainable, and that where disputed questions of fact arise — as, she said, they do here — they cannot be adjudicated in writ proceedings.
The ED countered that the Sakiri Vasu line applies where a party seeks investigation by the local police, whereas its case was precisely that the State machinery could not be relied upon, and that the Court could direct a CBI investigation in an appropriate case.
Background: the I-PAC search
The dispute traces to a search the ED says it conducted, in January this year, at the office of I-PAC — the political consultancy widely associated with the Trinamool Congress’s campaigns. The ED’s case is that its officers were obstructed in carrying out that search, and that the then Chief Minister was present and, on the agency’s account, admitted to having gone to the location — a fact the Court observed would be a matter for the investigation to examine. The agency moved the Supreme Court directly under Article 32, seeking an FIR and investigation against Banerjee and the police officials it alleges abetted the obstruction.
It bears emphasis that these are the ED’s allegations, untested and unproven. No FIR has been registered, no charge framed, and no finding recorded against Banerjee or any officer; the Court’s observations go to which agency should investigate, not to guilt. The allegation that the search was obstructed, and the defence that the proceedings are not maintainable, both remain to be adjudicated.
The hearing will continue on September 2, when Guruswamy is to conclude, with Senior Advocates Kapil Sibal and Shyam Divan also expected to address the Court for Banerjee’s side.
For the ED: Tushar Mehta, Solicitor General, with S.V. Raju, ASG
For Mamata Banerjee (R2): Menaka Guruswamy, Sr. Adv. (with Kapil Sibal and Shyam Divan, Sr. Advs., to address on the next date)
CASE: DIRECTORATE OF ENFORCEMENT AND ANR. v. THE STATE OF WEST BENGAL AND ORS. | W.P.(Crl.) 16/2026