New Delhi Nov 23 (PTI) The ED on Wednesday opposed in the Delhi High Court a plea by Karnataka Congress chief D K Shivakumar challenging a money laundering probe against him, saying the two ECIRs lodged by the agency pertain to different cases with certain overlapping of facts which cannot be termed a re-investigation. Shivakumar, in his plea, has sought quashing of the entire investigation, including summons issued to him in the (Enforcement Case Information Report) ECIR registered by the ED in 2020, on several grounds like the agency was re-investigating the same offence which it had already probed in a previous case lodged by it in 2018.
However, the Enforcement Directorate said in its counter affidavit that both the ECIRs are based on different set of facts and even the scheduled offence in both the cases are different. The quantum of proceeds of crime involved is also different, it said.
“…the allegation made in the complaint of the Income Tax department and FIR of CBI depict different modes of generation of the crime proceeds and that role of different accused persons may come into light, thus the petitioner cannot claim that he has already been investigated of the same offence,” the affidavit said.
On Wednesday, a bench of Justices Mukta Gupta and Anish Dayal granted a week’s time to Shivakumar, who was represented through senior advocate Kapil Sibal and lawyer Mayank Jain, to file a rejoinder to ED’s reply.
The high court also asked the parties to file their written submissions in the case before the next date of hearing on December 2.
The ED, in its reply, further said as per the first ECIR, the scheduled offence is section 120B IPC and the quantum of proceeds of crime recorded is Rs 8.59 crore.
The second ECIR is related to disproportionate assets to the tune of Rs 74.93 crore and emanates from a different FIR the CBI lodged in Bangalore on October 3, 2020 under the Prevention of Corruption Act.
It alleged on the basis of the preliminary enquiry done by the CBI, ACB, Bangalore, it was found that Shivakumar and his family are in possession of assets disproportionate to their known sources of income during the check period April 1, 2013 to April 30, 2018.
“It is well settled that the same set of action may give rise to separate offences and if the ingredients of the offences are distinct then there is no question of the principle of double jeopardy getting attracted,” ED said.
The ED added it is well settled that at the stage of investigation it is premature to take the plea of double jeopardy and that it is wholly impermissible in a petition challenging the constitutional validity of certain provisions of the special act to pass the interim orders in the nature of final anticipatory bail.
“The present petition is highly premature and it is well settled that the courts do not interdict the powers of investigating agencies conferred upon by the statutes,” ED said, adding that the petition was liable to be dismissed for being devoid of merits.
In jurisprudence, double jeopardy is a procedural defence that prevents an accused person from being tried again on the same charges.
The high court had earlier issued a notice on the MLA’s plea assailing the constitutional validity of the inclusion of the offence pertaining to disproportionate assets under the Prevention of Corruption Act as a "scheduled act" under the Prevention of Money Laundering Act (PMLA).
The petitioner’s counsel had earlier argued that there can be no case for the offence of money laundering on allegations of disproportionate assets.
"Once you have come to the conclusion that the assets are disproportionate to the known sources of income, there cannot be money laundering after that," he had said.
In the plea, the petitioner submitted that the second set of proceedings is a "complete abuse of process of law and malafide exercise of powers" and also violates the constitutional provisions relating to double jeopardy.
"The entire aspect of disproportionate assets allegedly acquired by the petitioner when he was minister/MLA in the state of Karnataka was thoroughly investigated by the respondent in the first ECIR and thus, the initiation of separate proceedings on the same set of facts and ingredients of the offence is impermissible in law and amounts to malafide exercise of power by the respondent," the plea said.
The commencement of fresh proceedings under the PMLA on identical facts and covering the same period directly infringed the rights guaranteed under the Constitution, more particularly Article 20(2) and Article 21, the plea said.
“Furthermore, the inclusion of Section 13 of the Prevention of Corruption Act in the Schedule of PMLA is ultra vires the Constitution as the ingredients of the offence under the said provision is same as the ingredients required to attract the offence under Section 3 of the PMLA," it stated.
The plea submitted that Section 13 of the Prevention of Corruption Act is a complete code which envisages the aspect of laundering of ill-gotten wealth by a public servant in the form of assets and there cannot be any further activity of laundering the proceeds again.
It is also alleged that the Delhi office of ED has no territorial jurisdiction to conduct the present investigation and summon the petitioner who is a permanent resident of Bengaluru. PTI SKV SKV SK