Man first cited as witness, later made accused: Delhi court says ED's conduct disturbing, seeks report

A Delhi court recently took strong exception to the manner in which the Enforcement Directorate (ED) proceeded to a make a person an accused in a money laundering after he was first cited as a witness. .Additional Sessions Judge (ASJ) Dheeraj Mor of the Patiala House Court noted that the investigating officer (IO) of ED who first probed the case had cited one Mangelal Sunil Agarwal as a witness in a money laundering case. However, the officer who replaced the first officer made Agarwal an accused and arrested him.The court termed such incongruities as disturbing."The glaring and disturbing aspect of this case is required to be noted. The hallmark of investigation is its objectivity. Subjective interpretation of IO must be deprecated as it would make a supposed objective investigation dependent upon his uncontrolled whims and fancies," the Court said.In view of the above, it ordered the ED Director to conduct an inquiry against the two investigating officers (IO).The Court also directed ED to furnish a report explaining the procedure followed by its officers while deciding to arrest a person and also explaining what the senior officials of the agency do to monitor those arrests.“Therefore, it is expedient in interest of justice to call upon worthy Director, ED to conduct an inquiry for ascertaining the reasons for adopting absolutely diametrically opposite approach by two I0s confronted with exactly same evidence against the accused. The inquiry report be filed within a month from today with a finding if anyone of them faulted in his duties and what action, if any, is taken against the erring official. In case the opposite views of both of them are found to be justifiable, though doesn't appeal to common sense, it be clarified as to how to reconcile with this distasteful situation,” the Court ordered..The Court passed the order while granting bail to Agarwal in a case related to the siphoning funds of ₹18.8 crore.The ED filed a prosecution complaint (chargesheet) on October 1, 2022, naming eight people as accused in the money laundering case. Agarwal was cited as a witness then.Later, on August 6 this year, the agency filed another chargesheet naming Agarwal as an accused..The Court termed the ED officials’ conduct disturbing as the two officers saw the same evidence and took diametrically opposite views.The Court reasoned that it was apparent that one of the officers was wrong and “either acted upon the considerations extraneous to law for the reasons to be ascertained or he was incompetent to comprehend the facts of the case in proper perspective”.Both the situations are perilous as it may allow an accused going scot-free or result in wrongful confinement of liberty of an individual thereby affecting his cherished fundamental right, the Court said.Judge Mor further observed that while taking cognisance of the first chargesheet, the Court did not find any evidence to consider Agarwal complicit in the crime and by arresting him on the same evidence, the ED officers chose to sit as an appellate forum on the wisdom of the Court.“After arresting the applicant on the same evidence that was available with the I0 and the court at the time of filing of criminal prosecution complaint, the investigating agency has been trying to collect additional evidence against him by evaluating his mobile data and e-mails with a despair hope to hit anything relevant in dark. That is putting a cart ahead of horse and nothing more, but an attempt to justify the arrest," the order said. The Court emphasised that while an IO has the power to arrest or not arrest any person, the said power cannot be exercised in an arbitrary manner."Admittedly, the I0 has prerogative to take a decision to arrest or not arrest any person. However, it cannot be arbitrary and when the evidence available with the I0 and the court are exactly, similar and the court desisted to summon him as an accused, the act of the I0 to arrest him on the same evidence is an apparent overreach of his powers that deserves to be disapproved,” the Court said. Hence, it ordered the ED director to inform the Court whether there is any standard operating procedure (SOP) or regulation in place which is adhered to by the central agency while arresting persons..Special Public Prosecutor (SPP) Simon Benjamin appeared for ED in the case.Mangelal Sunil Agarwal was represented by advocates Vaibhav Suri and Saud Khan..[Read Order]