Can’t sustain ED laundering probe in absence of FIR in Herald case: CourtThe court also turned down the plea by the Gandhis that they be given a copy of the police FIR, saying they were not entitled to it at this stage of the probe.
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Special Judge Vishal Gogne ruled that an investigation and the consequent prosecution complaint related to the offence of money laundering cannot be sustained in the absence of an FIR.The court further observed that “in the present origin of the allegations, a public person, namely Subramanian Swamy, instituted the complaint under Section 200 of the CrPC (Code of Criminal Procedure). He is not a person authorised to investigate the offence mentioned in the schedule (Section 420 of IPC)”, thereby underlining the legal infirmity in ED’s prosecution complaint. So, the court said, “It is now premature and imprudent for the court to decide the submissions made by ED as well as the proposed accused in relation to the merits of the allegations.”The court also took strong note of the way ED initiated proceedings in the matter. It noted that despite receiving Subramanian Swamy’s complaint and the summoning order in 2014, CBI has not registered an FIR in relation to the alleged scheduled offence till date. However, ED “simply inverted the template of money laundering being consequential to the predicate offence by recording its own ECIR (enforcement case information report) on June 30, 2021.”Judge Gogne said ED overreached into CBI role and violated PMLA framework. “This act was not a mere expression of the independent nature of ED as an agency to probe proceeds of crime” but instead reflected a “unilateral overreach of the other law enforcement agency viz. CBI on one hand and an ill-advised out pacing of the scheme of the PMLA itself”.The court also noted that money laundering cases cannot be initiated unless an FIR is registered by the “law enforcement agency concerned”, pointing out that such complaints “by public persons bring forth a limited spectrum or volume of evidence” and an even more “constricted tool kit for facilitating investigation” of the allegations. In effect, the court clarified that a complainant under Section 223 of the BNSS (Bharatiya Nagarik Suraksha Sanhita) cannot conduct any investigation akin to police or other probe agencies.The case pertains to the acquisition of Associated Journals Limited (AJL), publisher of the now-defunct National Herald newspaper.
