Delhi HC issues notice in ED plea seeking to expunge remarks by trial court in excise policy case

Delhi High Court issues notice in ED's petition to expunge trial court remarks against it in the Delhi excise policy case involving Kejriwal.

New Delhi

The matter would be next heard on March 19. (Representative photo)

The Delhi High Court on Tuesday issued notice in a petition filed by the Enforcement Directorate (ED) seeking to expunge observations made by a trial court against the agency while discharging former Delhi chief minister Arvind Kejriwal and 22 others of any wrongdoing in the Delhi excise policy case probe of the Central Bureau of Investigation (CBI).

A bench of justice Swarana Kanta Sharma observed that special judge Jitendra Singh of the Rouse Avenue court, who delivered the February 27 discharge order, might have given the observations since he felt that the CBI’s probe was “unfair.” The judge, however, sought responses from the CBI, Arvind Kejriwal, and 22 others.

She also indicated that the ED’s petition would be decided together with the CBI’s appeal challenging the discharge order, noting that the judgment was already under challenge before the court.

“This shows that whatever the judge said, he was not saying in the context of this case, but he felt that this (CBI’s probe) was an unfair investigation and thus he made remarks… these are general observations which some judges, including me, make. Now these are general observations and have nothing to do with the case. This entire judgement is anyway under challenge. When I will be deciding that case too, I will be reading this (observations against ED) too. We’ll decide both the cases (CBI’s appeal and ED’s petition) together. I’ll issue notice,” justice Sharma said.

The court made the comments after ED’s lawyer, additional solicitor general (ASG) SV Raju, and special counsel, Zoheb Hossain, submitted that even though the observations made in 18 paragraphs which the agency sought to be expunged were general in nature, the judge “condemned” the agency without giving it an opportunity of being heard.

To be sure, the trial court, while discharging the accused and pulling up the CBI, observed that the investigation by the state police, the CBI or the ED could not be initiated or sustained solely on allegations of election-funding irregularities, excess expenditure and criminal law. It said that particularly, the extraordinary and coercive regimes of the PC Act and the Prevention of Money Laundering Act cannot be employed as a substitute for election law remedies or as a device to convert political accusations into prosecutable offences.

Special judge Jitendra Singh of the Rouse Avenue court had also observed that in several cases, the ED proceeded to file prosecution complaint primarily to obviate the statutory consequences of default bail without the probe in the scheduled offence having attained finality.

The ASG said that the order contained allegations against the agency in which it was not even a party, as the proceedings were confined strictly to the case investigated by the CBI and the trial court had no business to make such remarks. “These are direct allegations against the ED in a matter where ED is not a party, ED is not concerned and where ED’s case is a standalone, different offence. In some third party matter, where ED is concerned, the court has no business to make such remarks. General allegations also affect us. The ED is condemned without hearing,” the ASG said.

The respondent’s lawyers, N Hariharan and Vikram Chaudhary, opposed the petition. While Chaudhary asserted that the observations were made on the merit of the matter and were not personal remarks, Hariharan, who appeared for Kejriwal, said that the paragraphs quoted by ED were out of context.

During the hearing, the ASG urged the court, to pass an order saying that the trial court’s observations would have no bearing on proceedings pending before any other court, which was opposed by counsel for the respondents, who argued that observations made by a trial court are not treated as binding precedent and sought time to file a reply opposing the plea.

However, the judge said that she had not passed an interim order yet. “Nobody can stop me from passing an order. No one can dictate to me what order to pass. I will pass an order that I want to pass and what I think is right...Just see how much strain you put on the judge.”

The matter would be next heard on March 19.