Delhi High Court deletes adverse observations by trial court against ED

The Delhi High Court recently expunged certain adverse observations made by a trial court against the Enforcement Directorate (ED) [Directorate of Enforcement vs. Lakshay Vij & Ors.]..Justice Anup Jairam Bhambhani found that the trial court's comments regarding ED's Investigating Officer (IO) and ED's functioning were unjustified.“It needs no emphasis, that adverse remarks made by a court against government servants have a serious deleterious impact on their official record and on their careers, especially if such remarks are unwarranted or unjustified,” the Court added..The ED had challenged orders dated October 5 and October 19, 2024 passed by the trial court while deciding on taking cognizance of a prosecution complaint by the ED in a money laundering case. In the first order dated October 5, the trial court had observed that ED’s investigation to take sufficient coercive steps to ensure that a prime accused in the case was not traced indicated “foul play." The ED had informed that this person was absconding and that they could not trace him despite its best efforts, including the issue of several summons. The trial court opined that there was enough time to initiate coercive steps against the said accused.“No doubt arrest and investigation is the sole prerogative of investigating agency but the manner in which it is conducted should reflect fairness and not arbitrariness or whimsical attitude,” the trial court added, while directing the Director of ED to file a detailed report.In the second order dated October 19, the trial court pulled up ED for not filing the report.“All this reflects poorly upon the ED. Such lackadaisical approach on the part of the ED is absolutely unacceptable. ED is showing complete apathy to the observations of this court and absence of the IO today is ample proof of the same," the trial court added..This was challenged by the ED before the High Court. Special Counsel for the ED, Zoheb Hossain submitted that the trial court’s observations were unfounded and misconceived.He explained that the ED had not only issued summons to the absconding person on multiple occasions, but also undertook a physical verification of various available addresses of the said accused. The IO also issued requisite intimation to the Bureau of Immigration to open a Look-Out-Circular against the accused, he added. He further pointed out that the Director of ED has no role in the day-to-day investigation and therefore there is no reason why his personal presence was required by the trial court. .The High Court agreed with ED’s submission that it does not need to wait for the presence of an absconding accused to file a charge-sheet against him. The Court added that no adverse inference against the ED's prosecution complaint (equivalent to chargesheet in police cases) once it shows the main accused as an “absconder.” It also reiterated the Supreme Court's word of caution against routinely summoning public servants to courts.“In light of the extant position of law as enunciated by the Supreme Court inter-alia in Dinesh Dalmia (supra) and Tarsem Lal (supra), the court is persuaded to agree with the submissions made on behalf of the petitioner, namely that merely because the prosecution complaint has been filed by the ED without tracing or arresting Karan Chugh, that is in itself ground for assuming that the ED has been derelict in investigating the case. Furthermore, the law is also clear, that custody of an accused can be sought even after filing of a chargesheet or complaint,” the Court said..Accordingly, the High Court expunged the trial court's adverse comments, while clarifying that it is not commenting on the proceedings being conducted by the trial court. “The observations made by the learned Special Judge in orders dated 05.10.2024 and 19.10.2024, to the extent they have been extracted above, shall stand expunged," the High Court ordered. .The ED was represented by Special Counsel Zoheb Hossain, Special Public Prosecutor Manish Jain, Panel Counsel Vivek Gurnani with advocates Pranjal Tripathi and Suradhish Vats.Advocate Vanya Gupta appeared for a respondent..[Read order]