National Herald case: ED moves Delhi HC against trial court order

New Delhi, Dec 19 (PTI) The Enforcement Directorate (ED) has petitioned the Delhi High Court challenging a trial court order refusing to take cognisance of its chargesheet against Congress leaders Sonia Gandhi, Rahul Gandhi and others in the National Herald money laundering case.

The agency claimed the trial court order amounts to "judicial legislation".

The plea is likely to be listed for hearing next week.

The ED filed its petition on December 17 challenging trial court Judge Vishal Gogne's December 16 order which held that cognisance of the agency's complaint in the case was "impermissible in law" as it was not founded on an FIR.

Calling the court's refusal to take cognisance of the chargesheet "erroneous", the ED sought an ex-parte stay on the judgement that was hailed by the Congress.

The Congress called the agency's action "political vendetta undertaken against the Gandhis at the behest of the BJP government".

The ED prayed to the HC that the stay was essential to "prevent irreparable loss" to the ongoing money laundering investigation and to secure the attached proceeds of crime worth Rs 752 crore.

"The impugned judgement creates two impermissible classes of scheduled offences leading to complete manifest arbitrariness wherein a person who commits a scheduled offence will not be prosecuted for generation and laundering of proceeds of crime only because it is based on a private complaint to a magistrate of which cognisance is taken by applying judicial mind," the ED said in its petition, according to official sources.

It also said that the effect of the said judgement is "to amend or rewrite the statute, especially Section 2(1)(u) and Section 2(1)(y) of the PMLA, and to add words to the expression 'scheduled offence' to mean 'scheduled offence only registered by a law enforcement agency', which is impermissible and amounts to judicial legislation".

The trial court said an investigation and the consequent prosecution complaint (equivalent to chargesheet) pertaining to the offence of money laundering was "not maintainable" in the absence of an FIR for the offence mentioned in the schedule to the Prevention of Money Laundering Act (PMLA).

It said the agency's probe stemmed from a private complaint and not an FIR.

It also said that cognisance upon the complaint being liable to be declined on a question of law, other arguments relating to the merits of the allegations were not required to be adjudicated upon.

The special PMLA court further said that despite receiving the complaint made by BJP leader Subramanian Swamy and the consequent summoning order in 2014, the CBI refrained from registering an FIR in relation to the alleged scheduled offence.

"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.

The ED has accused Sonia and Rahul Gandhi along with Suman Dubey, Sam Pitroda, and a private company, Young Indian, of conspiracy and money laundering in its chargesheet.

The ED complaint alleged that the Gandhis "abused" their position for personal gains and Young Indian, a private company "beneficially owned" by the mother-son duo, "acquired" Associated Journals Ltd. (AJL) properties worth Rs 2,000 crore for a mere Rs 50 lakh, significantly undervaluing its worth. PTI SKV/NES DIV DIV