ED Challenges Trial Court Order In National Herald Case In Delhi High Court

The Enforcement Directorate (ED) has approached the Delhi High Court challenging a trial court order that declined to take cognisance of the prosecution complaint in the National Herald case against former Congress presidents Rahul Gandhi and Sonia Gandhi.

The plea is expected to be taken up for hearing next week.

In its revision petition, the ED said the December 16 judgment by special judge Vishal Gogne had effectively granted a “hall pass” to a category of money launderers merely because the scheduled offence in the case was reported by a private individual, Subramaniam Swamy.

Arguing that the order “suffers from the vice of judicial legislation”, the agency said the court had “erroneously declined” to take cognisance of the money laundering offence.

The ED contended that the verdict amounted to an attempt “to amend or rewrite the statute”, particularly Section 2(1)(u) — which defines proceeds of crime — and Section 2(1)(y), which defines a scheduled offence, under the Prevention of Money Laundering Act (PMLA), 2002. It said that adding words to the expression ‘scheduled offence’ to mean ‘scheduled offence only registered by a law enforcement agency’ was “impermissible” and amounted to “judicial legislation”.

According to the petition, the sole ground cited for declining cognisance was that a prosecution complaint filed by an authorised officer under the PMLA cannot stem from a private complaint by a private individual, and that such a scheduled offence must be registered only by a law enforcement agency through an FIR or a complaint by an authorised investigator.

The ED alleged that Judge Gogne failed to appreciate that cognisance taken by a competent court on a private complaint — in this case filed by Swamy — stands on a much higher footing than a mere FIR lodged by the police, where cognisance may still be declined after a chargesheet is filed.

The agency also pointed out that in the present case, cognisance of the private complaint constituting the scheduled offence had already been taken by a competent court and upheld all the way to the Supreme Court.

“Hence, the scheduled offence stood on a much higher pedestal than a mere FIR lodged by police,” the ED said.

It further argued that the court overlooked the fact that the investigation and prosecution complaint under the PMLA were based on scheduled offences under Sections 420 (fraud) and 120B (criminal conspiracy) of the IPC, for which cognisance had already been taken by the concerned magistrate and upheld by the Delhi High Court and the Supreme Court.

In view of these developments, the ED maintained that once cognisance of the scheduled offence had been taken by a competent court, Judge Gogne could not have concluded that the agency was barred from acting on a scheduled offence originating from a private complaint.

The plea added that the judgment failed to consider that the Criminal Procedure Code provides for two distinct modes of proceeding in respect of offences under the IPC or special laws — either through police action or by way of a complaint.

The agency also accused the court of drawing “an artificial distinction” between scheduled offences investigated by the police and those reported to a magistrate through a complaint, despite the law making no such differentiation.

By doing so, the judge, the ED said, created “two impermissible classes of scheduled offences”, leading to “manifest arbitrariness”, where a person committing a scheduled offence would escape prosecution for laundering the proceeds of crime simply because the offence arose from a private complaint.

Senior advocates Abhishek M Singhvi and R S Cheema, along with advocates Tarannum Cheema, Sushil Bajaj and others, appeared for the proposed accused. Additional Solicitor General S V Raju represented the Enforcement Directorate.

(inputs from The Indian Express)