The Enforcement Directorate (ED) has challenged a trial court order that refused to take cognisance of its chargesheet against AAP MLA Amanatullah Khan in the Delhi Waqf Board money laundering case and granted him bail.
The court instructed ED to place on record the order of the trial court and posted the matter next for consideration on January 13 next year.
Citing lack of prosecution sanction against Khan, the trial court order, dated November 14, had released the arrested MLA on bail.
ED primarily argued on two grounds: one, at the time of the trial court deciding on the cognisance of its chargesheet against Khan, arguments on the prior prosecution sanction were not canvased; and two, the probe agency will be covered by the prior sanction obtained to prosecute Khan in the predicate offence that forms the basis of the case.
According to ED’s revision plea, taken up before the court of Justice Manoj Kumar Ohri Monday, the agency argued that “assuming the Bibhu Prasad Acharya judgment (of the SC that mandates prior sanction to prosecute public servants in discharge of their official duties, applies to the case), it is a curable defect.”
The aspect of whether to take cognisance of ED’s chargesheet or not “could’ve been kept pending” in the absence of a sanction, submitted Zoheb Hossain, on behalf of ED. Further placing reliance on PMLA Section 45 that provisions for the prosecutor being provided with an opportunity to oppose the bail of a money laundering accused, he added that Khan could have only been released by way of a decision on a bail application. “The public prosecutor has to be given an opportunity to oppose bail…that was denied…(the cognisance of the chargesheet) could have been kept pending,” Hossain said.
Justice Ohri, however, orally remarked, “(SC judgment in) Bibhu Prasad Acharya says this is only a technicality…but it (taking cognisance of chargesheet) cannot remain in limbo…can it be said that he (trial court) cannot proceed but (the case) can be kept in limbo forever?… Issue is, bail would come into picture provided there is a case (where cognisance of the chargesheet is taken)…once it (cognisance of chargesheet) is declined, there is no case,” the judge further remarked.
Hossain went on to submit that sanction in the predicate offence was taken and highlighted that during the arguments on the cognisance of the chargesheet, the court had not raised the question of sanction. ED also noted that Khan was booked in a case of disproportionate assets.
The ED case stems from two FIRs: one filed by the CBI concerning alleged irregularities in Waqf Board appointments; and another by the Delhi Anti-Corruption Branch (ACB) regarding an alleged case of disproportionate assets.
