National Herald case: Cognisance of ED complaint not founded on FIR ‘impermissible in law’, says Delhi court

New Delhi, Dec 16 (PTI) Holding that cognisance of the ED's complaint in the National Herald case was "impermissible in law" as it was not founded on an FIR, a Delhi court has declined to take cognisance of the complaint against Congress leaders Sonia Gandhi, Rahul Gandhi and five others.

Special Judge Vishal Gogne said an investigation and the consequent prosecution complaint (equivalent to chargesheet) pertaining to the offence of money laundering is “not maintainable” in the absence of an FIR for the offence mentioned in the schedule to the Prevention of Money Laundering Act (PMLA).

“Since the present prosecution complaint pertaining to the offence of money laundering is founded on cognisance and summoning order upon a complaint under section 200 CrPC (examination of a complaint) filed by a public person, namely Dr Subramanian Swamy and not upon a FIR, cognisance of the present complaint is impermissible in law,” the judge said in his 117-page order.

The court said cognisance upon the complaint being liable to be declined on a question of law, other arguments relating to the merits of the allegations are not required to be adjudicated upon.

“In view of the ongoing further investigation by the ED in consequence of the FIR registered by the EOW (Economic Offences Wing) Delhi on October 3, 2025, it is now premature and imprudent for the court to decide the submissions made by the ED as well as the proposed accused in relation to the merits of the allegations,” it said.

The court said an investigation pertaining to money laundering offence is not maintainable on the basis of a complaint under section 200 CrPC and consequent order of cognisance and summoning when such complaint has been filed by a public person.

“Cognisance of the offence defined under section 3 (offence of money laundering) and punishable under section 4 (punishment for money laundering offence), read with section 70 (offences by companies) of the PMLA, in the present complaint is declined. The complaint is dismissed,” the judge said.

The court said it has now become premature and imprudent for it to decide the submissions made by ED as well as the proposed accused in relation to the merits of the allegations, especially so when cognisance is liable to be declined on a “pure question of law”.

“Other arguments possibly live to fight another day,” the judge said.

The court said it finds the investigative potential of an FIR regarding the scheduled offence to be qualitatively superior to the proceedings of a complaint case under section 200 CrPC.

It said the guidance from the statutory provisions under the PMLA is in favour of an FIR being registered for investigation of a scheduled offence as the jurisdictional trigger for the ED to commence probe by registration of an ECIR (Enforcement Case Information Report) and to then file a prosecution complaint.

The court referred to a Supreme Court judgement and said the law laid down in that verdict designates an FIR in the predicate offence as the sine qua non for investigation into allegations of money laundering under the PMLA.

“The objects of the PMLA and the FATF (Financial Action Task Force) reports unambiguously recognise the FIR in the predicate offence as the basis for an investigation relating to money laundering under the PMLA,” it said.

The judge said requirement of an FIR in the scheduled offence has been the consistent stance of the ED before various authorities.

The court said despite receiving the complaint made by Swamy and the consequent summoning order in 2014, the CBI has refrained from registering an FIR in relation to the alleged scheduled offence till date.

“However, the ED went ahead with recording an ECIR relating to money laundering on June 30, 2021 when no FIR (with the CBI or any other law enforcement agency) existed in relation to the scheduled offence,” it said.

In a relief to Sonia Gandhi, Rahul Gandhi and five others, the court refused to take cognisance of the Enforcement Directorate's money laundering charge against them in the case, holding that the agency's probe stemmed from a private complaint and not an FIR.

The ED has accused Sonia and Rahul Gandhi, as well as late Congress leaders Motilal Vora and Oscar Fernandes, along with Suman Dubey, Sam Pitroda, and a private company, Young Indian, of conspiracy and money laundering.

It has been alleged that they acquired properties worth approximately Rs 2,000 crore belonging to Associated Journals Limited (AJL), which publishes the National Herald newspaper. PTI MNR ABA MNR KVK KVK