Excise policy case: HC to hear today ED’s plea seeking to expunge trial court remarks

Delhi HC to hear ED's plea to expunge trial court remarks against it while discharging Kejriwal, Sisodia, and others in excise policy case.

The Delhi high court is scheduled to hear on Tuesday 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, former deputy chief minister Manish Sisodia and 21 others of any wrongdoing in the formulation and implementation of the now-scrapped Delhi excise policy in a case investigated by the Central Bureau of Investigation (CBI).

The agency contended that this amounted to a clear violation of the principles of natural justice as well as judicial propriety (Photo for representation)

On February 27, the trial court, while discharging the accused and pulling up the CBI, observed that investigations by the state police, the CBI or the ED cannot be initiated or sustained solely on allegations of election funding irregularities or excess expenditure. It said criminal laws, particularly the Prevention of Corruption Act and the Prevention of Money Laundering Act, cannot be used as a substitute for election law remedies or to convert political accusations into prosecutable offences.

Special judge Jitendra Singh of the Rouse Avenue courts also observed that in several cases the ED files prosecution complaints mainly to avoid the statutory consequences of default bail, even when the investigation into the scheduled offence has not been completed. The court noted that it had seen a case where proceedings in the money laundering matter had reached the stage of arguments on charges while the investigation into the predicate offence was still underway to determine whether any offence had been committed at all.

In its petition, which will be heard by a bench led by justice Swarana Kanta Sharma, the ED argued that the trial court’s February 27 order contained remarks that were wholly extraneous to the issues before the special court.

According to the agency, the proceedings before the trial court were confined strictly to the case investigated by the CBI, and the observations could cause serious prejudice to its separate money-laundering investigation.

The petition, filed by special counsel Zoheb Hossain, further stated that the ED was not a party to the CBI proceedings in any capacity and was not given an opportunity to present its case before the adverse observations were made. The agency contended that this amounted to a clear violation of the principles of natural justice as well as judicial propriety.

“The aforesaid underlined portions of the extracted paragraphs from the discharge order would cause grave prejudice to the case of the Enforcement Directorate under the PMLA. If such sweeping, unguided and bald observations are permitted to stand, which have been passed behind the back of the Enforcement Directorate based on pure conjectures, without relying on any material gathered by the ED since the court was not concerned with the prosecution complaints filed by the ED while making these observations, grave and irreparable prejudice would be caused to the public at large as well as the petitioner herein,” the petition stated.

The agency’s petition said the observations made against it in 18 paragraphs deserved to be expunged as they amounted to a case of judicial overreach and should be treated as non-est, having been made in flagrant violation of the principles of natural justice.

“For instance, the observations at Para 1124 specifically directed against arrests made under PMLA for the offence of money laundering appear to be a critique of parliamentary wisdom as well as the rigours of the twin conditions under the PMLA, both of which have been upheld by a larger bench of the Hon’ble Supreme Court in Vijay Madanlal Choudhary & Ors. vs Union of India & Ors. (2022 SCC OnLine SC 929), and therefore amount to gross judicial indiscipline and legal bias,” the petition further stated.