No one can dictate to me what order to pass: Delhi High Court in ED plea to expunge remarks in Excise Policy discharge order

The Delhi High Court on Tuesday sought replies to a plea filed by the Enforcement Directorate (ED) to expunge adverse remarks made against it by a trial court while discharging Arvind Kejriwal, Manish Sisodia and all the others accused in the Delhi Excise Policy case.

At the outset of the hearing, Justice Swarana Kanta Sharma said,

"It has nothing to do with the case in question. I will decide this. I am going through this. I do need to call for a reply in this. I will see if they [observations] are right or wrong."

Appearing for the ED, Additional Solicitor General (ASG) SV Raju argued,

"There are direct allegations against the ED in a matter in which ED is not a party, ED is not concerned...the judge has no business to make such observations."

However, Justice Sharma replied,

"Whatever the judge has said was not in respect to this case. These are general observations that some judges, including me, make."

ASG Raju insisted,

"He could have heard and made the observations. Even general allegations affect us...These observations would be used against me when my matter comes. The ED is condemned without even hearing."

Appearing for Kejriwal, Sisodia and other respondents, Senior Advocate Vikram Chaudhari said,

"Yesterday, they got an order that ED case will be adjourned. Was the ED before the court?"

Also appearing for the respondents, Senior Advocate N Hariharan said,

"They have taken the observations out of context."

Justice Sharma then said,

"This entire judgement anyway is under challenge so when I will be deciding that case, I will be reading this [judgment]. What I want to do is, I will issue notice in this matter and keep it on the same day as the other case [the CBI challenge to trial court order]."

ASG Raju urged the Court to pass an order that the observations may not be relied upon in any further proceedings. When counsel on the opposite side protested against any interim order, Justice Sharma said she had not passed any order yet. She added,

"Nobody can stop me from passing an order. No one can dictate to me what order to pass. I will pass an order that I want to pass and what I think is right...Just see how much strain you put on the judge."

The matter will be heard next on Thursday, March 19.

The ED sought directions to expunge the remarks made by Special Judge (PC Act) Jitendra Singh in paragraphs 109, 1048, 1049, 1050, 1051, 1052, 1062, 1083, 1106, 1124, 1125, 1126, 1127, 1128, 1129, 1130, 1131 and 1132 of his order passed on February 27, 2026.

It is the agency's case that the remarks are "sweeping and unwarranted " and were passed behind its back based on "pure conjectures".

"The Petitioner was not a party to the said CBI proceedings in any capacity, and was not afforded any opportunity to be heard before the said adverse observations were recorded, thereby flagrantly violating the fundamental principles of natural justice and judicial decorum," the ED has said.

It has been argued that the judge's observations disclose a "pre-determined approach" where observations "imbued with notes of finality" have been made with respect to the offence of money laundering without looking at the evidence gathered by the ED or hearing the agency.  

The ED has stressed that these observations would cause grave prejudice to the agency's case under the Prevention of Money Laundering Act (PMLA) as well as the public at large.

In a detailed order passed on February 27, the trial court had expressed concern over the ED's practice of making arrests and filing prosecution complaints in money laundering cases even before the facts of the corresponding predicate offence cases undergo judicial scrutiny.

Judge Jitendra Singh had noted that the cases under PMLA imperil an individual’s liberty based on a presumption of “proceeds of rime” arising out of the scheduled offences.

Referring to the settled legal position that money laundering offences do not survive in the event of closure of the predicate offence, the Court observed,

“Despite this settled legal position, the prevailing practice reveals a disturbing inversion of the statutory scheme, wherein coercive powers of arrest and prolonged custody are invoked even before the foundational facts relating to the scheduled offence are judicially tested. This results in a situation where an individual is deprived of personal liberty on the strength of an allegation whose legal sustainability remains uncertain  and contingent upon a future outcome in a parallel investigation.”

Further, Judge Singh had said that the ED often proceeds to file prosecution complaints without the completion of an investigation into the scheduled offences by the other agency.