ED Moves Delhi High Court To Expunge Trial Court's Remarks While Discharging All Accused In Excise Policy Case

The Directorate of Enforcement (ED) has moved the Delhi High Court seeking expunging of certain adverse observations made by a Special Court while discharging all accused persons, including AAP leaders Arvind Kejriwal and Manish Sisodia in the excise policy corruption case.

The matter is listed before Justice Swarana Kanta Sharma tomorrow.

ED has said that it was not a party to the CBI proceedings in any capacity, and was not afforded any opportunity to be heard before the adverse observations were recorded. As per the agency, the situation is “flagrantly violating the fundamental principles of natural justice and judicial decorum.”

“If such sweeping, unguided, bald observations are permitted to stand, which have been passed behind the back of the Enforcement Directorate based on pure conjectures, without anchoring itself on any material or evidence gathered by the Enforcement Directorate since the Court was not concerned with the prosecution complaints filed by the Enforcement Directorate while making these observations, grave and irreparable prejudice would be caused to the public at large as well as the petitioner herein,” the plea states.

For context, the trial court had observed that if investigative agencies such as the CBI or ED were permitted to enter the electoral arena merely on allegations of “cash spending”, “illegal funding”, or “unaccounted expenditure”, the inevitable consequence would be the criminalisation of electoral competition.

“The position is no different, and indeed more restrictive, under the PMLA. The statute cannot be set in motion in a vacuum. It is predicated on the prior existence of a scheduled offence and the generation of “proceeds of crime” therefrom,” the trial court had said.

It had also said that investigations by the State police, the CBI, or the Enforcement Directorate cannot be initiated or sustained solely on allegations of election-funding irregularities and excess expenditure.

The trial court had also observed that PMLA, amongst other enactments, cannot be employed as a substitute for election-law remedies, nor as a device to convert political accusations into prosecutable offences, unless a clear, independent, and cognisable criminal offence, wholly distinct from election-law violations, is prima facie disclosed in accordance with law.

ED says that the paragraphs which concern the investigation independently conducted by the ED under the PMLA deserve to be expunged as it amounts to a “clear case of judicial overreach.”

The agency has said that the observations were made by the special judge without looking at the evidence gathered by it and without even affording it an opportunity of hearing.

The agency has argued that the Special Court was only concerned with whether charges were made out in the CBI case and had no occasion to comment on the separate PMLA investigation.

It has submitted that such remarks, if allowed to remain, would cause serious prejudice to the ED's ongoing proceedings and amount to judicial overreach.

For context, Justice Sharma today issued notice on CBI's plea against the discharge of the accused persons.

While doing so, the Court said that the observations regarding statements of witnesses and the approvers, at charge stage, are “prima facie erroneous and need consideration.”

The Court further said that scathing remarks made against the CBI IO and that he abused his official position to conduct unfair investigation, are prima facie “foundationally misconceived especially when made at the stage of charge itself.”

Accordingly, the Court has stayed the trial court observations limited only qua the IO, including the direction recommending departmental action against him.

In the meantime, the Court has also requested the Trial Court dealing with PMLA case to adjourn the matter to a date, later than the date fixed before the High Court, and await the outcome of CBI's plea.

On February 27, the trial court discharged all the 23 accused persons in the case, including political leaders Kejriwal, Sisodia and K Kavitha.

All who have been discharged are Kuldeep Singh, Narender Singh, Vijay Nair, Abhishek Boinpally, Arun Pillai, Mootha Gautam, Sameer Mahendru, Manish Sisodia, Amandeep Singh Dhall, Arjun Pandey, Butchibabu Gorantla, Rajesh Joshi, Damodar Prasad Sharma, Prince Kumar, Arvind Kumar Singh, Chanpreet Singh, K Kavitha, Arvind Kejriwal, Durgesh Pathak, Amit Arora, Vinod Chauhan, Ashish Chand Mathur and Sarath Reddy.

TItle: ED v. Kuldeep Singh & Ors