Kejriwal prosecution row: Why ED did not apply for sanction earlier

Following the new political war of words over Delhi L-G VK Saxena giving the nod to the Enforcement Directorate’s (ED) proposal to prosecute former chief minister Arvind Kejriwal in the Delhi excise policy case, the basic question arises: why did the probe agency not apply for the sanction earlier.

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It all started on November 20 when Kejriwal approached the Delhi High Court seeking to quash a local court’s July 9 order taking cognizance of the 200-page charge sheet filed by the ED.

Kejriwal challenged the trial court's order on grounds of lack of sanction to prosecute him and subsequently sought a pause on the trial court proceedings in the money-laundering case.

The AAP leader's sudden plea came in the wake of the November 6 Supreme Court ruling that the requirement for prior government sanction to prosecute public servants, as mandated under the Code of Criminal Procedure (CrPC), also applies to complaints involving money-laundering cases.

The SC order came on the ED’s petition challenging the high court decision quashing an order of the trial court that had taken cognisance of the ED’s prosecution complaint on money-laundering charges against the two senior bureaucrats of Andhra Pradesh - Bibhu Prasad Acharya and Adityanath Das.

The Enforcement Directorate had contended that considering the object of the PMLA, the requirement of obtaining a sanction under Section 197(1) of CrPC will be inconsistent with Section 71 of the PMLA.

Section 197 (1) says, “When any person who is or was a judge or magistrate or a public servant not removable from his office save by or with the sanction of the government, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no court shall take cognisance of such offence except with the previous sanction.”

The object of Section 197 (1) of the CrPC was to protect public servants from prosecutions and it ensured they were not prosecuted for anything they did in the discharge of their duties.

According to ED sources, before SC's ruling it was not mandatory for them to take sanction for prosecution.

In the latest prosecution sanction document, accessed by The Tribune, the ED mentions that the Supreme Court had, in the case of ED vs Bibhu Prasad Acharya & others clarified, that the Provision of CrPC applied to Section 65 of the PMLA and Section 71(1) “cannot override the provision of CrPC which applies to the PMLA” vide its judgment dated November 6.

“In view of the above fact and circumstances, sanction may be required for prosecution to Sh Arvind Kejriwal, former CM, Govt of NCT of Delhi, for offence of Money Laundering under Section 4 of PMLA…” the sanction added.

On the official document, the Department of Vigilance also made some observations in which it stated that they found the matter "grave in nature" and directed that a proposal be submitted to the L-G for his recommendations before referring it to a competent authority, ie, the Ministry of Home Affairs.