Custody Of Accused Can Be Sought Even After Filing Of Chargesheet Or Complaint: Delhi HC Expunges Negative Remarks Made By Trial Court Against ED

The ED had appealed against two orders issued by the trial court on October 5 and October 19, 2024, related to a money laundering prosecution complaint. In the first order, the trial court suggested that the ED's failure to trace a key accused in the case hinted at “foul play,” criticizing the agency for not taking sufficient coercive measures despite having ample time to do so. The trial court insisted that while the arrest and investigation authority lies with the investigating agency, the process must be conducted fairly rather than in an arbitrary or whimsical manner, subsequently requesting a detailed report from the Director of ED.

In its second order, the trial court expressed dissatisfaction with the ED for not providing the requested report. It stated,“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,".

A Bench of Justice Anup Jairam Bhambhani ruled that the trial court's comments regarding the ED's Investigating Officer (IO) and the agency's operations were unwarranted.

The Court said, “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,”

In response, the ED challenged these remarks in the High Court. Special Counsel for the ED contended that the trial court’s comments were both unfounded and misconstrued. He outlined the ED's efforts, which included multiple summons to the absconding accused, a physical verification of various addresses associated with the accused, and notifying the Bureau of Immigration to issue a Look-Out-Circular against him.

He also clarified that the Director of ED does not participate in daily investigations, thereby questioning the necessity of the Director's presence in court.

The High Court agreed with the ED's arguments, affirming that the agency is not required to wait for the arrest of an absconding accused to file a charge-sheet. The Court highlighted that no adverse implications should arise against the ED’s prosecution complaint simply because the primary accused remains untraced.

Reiterating principles established by the Supreme Court, the High Court underscored that the filing of a prosecution complaint by the ED should not be interpreted as a sign of negligence, and noted that custody of an accused could still be sought even after a charge-sheet has been filed.

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.

Ultimately, the High Court ordered the expunging of the trial court’s adverse comments, while clarifying that it was not making any judgments regarding the ongoing trial court proceedings. The ruling specified, “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.”

Cause Title: Directorate of Enforcement v. Lakshay Vij & Ors.

Appearance:

Petitioner: Special Counsel Zoheb Hossain, Special Public Prosecutor Manish Jain, Panel Counsel Vivek Gurnani, along with advocates Pranjal Tripathi and Suradhish Vats.

Respondents: Advocate Vanya Gupta