Delhi HC notice on ED plea on trial court order discharging Kejriwal, Sisodia

The judge indicated that the ED’s petition would be decided together with the CBI’s appeal challenging the Feb 27 discharge order

The Delhi High Court on Tuesday issued notice in the Enforcement Directorate’s (ED) petition to expunge the observations made by the trial court against the agency while discharging former Delhi chief minister Arvind Kejriwal, former deputy CM Manish Sisodia, and 21 others of any wrongdoing in the Delhi excise policy case probed by the Central Bureau of Investigation (CBI), even as it said that the observations were general in nature and had nothing to do with the present case.

The matter will be next heard on March 19. (PTI photo)

A bench of justice, Swarana Kanta Sharma, observed that special judge Jitendra Singh of the Rouse Avenue court, who had 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 the 22 others.

She also indicated that the ED’s petition would be decided together with the CBI’s appeal challenging the February 27 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 a notice,” Justice Sharma said.

This was after ED’s lawyer, additional solicitor general SV Raju, along with special counsel Zoheb Hossain, submitted that even though the observations were made in 18 paragraphs, which the agency sought to be expunged, were general in nature, the judge “condemned” the agency without allowing it to be heard.

To be sure, on February 27, the trial court, while discharging the accused and pulling the CBI, had observed that the investigations by the state police, the CBI or the ED cannot be initiated or sustained solely on allegations of election funding irregularities and excess expenditure and criminal law, 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 a device to convert political accusations into prosecutable offenses.

Special judge Jitendra Singh of the Rouse Avenue court had also observed that it noticed in several cases that the ED proceeded to file prosecution complaints primarily to obviate the statutory consequences of default bail without the probe in the scheduled offence having attained finality. It was itself a witness to a case where the proceedings pertaining to money laundering reached the final stage of arguments on charge. In contrast, in the predicate offence, the investigation was still underway to determine if an offence had been committed at all.

The law officer added that the order contained allegations against the agency in which it was not even a party, 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 law officer added.

The respondents 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 said that the paragraphs quoted by ED were out of context.

During the hearing, the law officer urged the court, to clarify that the trial court’s observations would have no bearing on proceedings pending before any other court, which was opposed by counsel for the accused, 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 court said that she had not passed an interim order yet and added, “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 will be next heard on March 19.

On Monday, the high court while hearing CBI’s appeal against February 27 order had observed that the trial court’s observations were prima facie erroneous. The judge had also stayed till March 16 the trial court’s February 27 order directing departmental action against CBI’s investigating officer and observations against him, noting that the remarks were “prima facie foundationally misconceived especially when made at the stage of charge itself.” Justice Sharma also requested the trial court to defer the Enforcement Directorate’s money laundering case that had stemmed from the CBI case, and await the outcome of CBI’s appeal against the February 27 verdict.

Kejriwal, Sisodia, and former Rajya Sabha member Sanjay Singh were among prominent AAP leaders arrested in connection to the excise policy, in which the federal agency alleged kickbacks were paid.

The CBI filed five chargesheets, while ED investigated related money-laundering allegations under the Prevention of Money Laundering Act.