New Delhi: The Delhi High Court on Tuesday said the Enforcement Directorate (ED) will be "bound" by its stand that there would be no coercive action at this stage against D K Shivakumar as it deferred hearing on the Karnataka Congress chief's petition against a money laundering probe by the agency.
The Congress leader had moved the high court last year seeking quashing of entire investigation including summons issued to him in the Enforcement Case Information Record (ECIR) registered by the ED in 2020 following an alleged disproportionate assets case.
Counsel for the investigating agency sought an adjournment on the ground of non-availability of Additional Solicitor General (ASG) S V Raju and emphasised that the petitioner was anyway "protected" in view the stand taken by the agency in the proceedings.
ED lawyer said the ASG was not in Delhi and prayed for "shortest accommodation possible".
Whatever was the "arrangement", will continue, he said.
While asking the agency to state a date on which the ASG would be available for the hearing, a bench headed by Justice Mukta Gupta said, "In the meantime, the respondent will be bound by the instructions given to learned ASG with regard to no coercive action".
"Adjournment slip is moved on account of the fact that learned ASG is not available. Renotify the date on which it is stated that the learned ASG will be available," stated the bench also comprising Justice Poonam A Bamba.
The case was listed for hearing next on May 18.
In his petition, Shivakumar has assailed the money laundering probe against him on several grounds including that the agency was re-investigating the same offence which it had already investigated in a previous case lodged by it in 2018.
In its submissions filed through lawyers Mayank Jain, Parmatma Singh and Madhur Jain, the Congress leader has said that the present investigation constituted a second set of proceedings against him and was an abuse of process of law and a malafide exercise of power.
The senior counsel on his behalf has earlier argued that the money laundering probe initiated against him following a disproportionate assets case cannot be sustained and the ED was taking action after waiting for two years because of the upcoming state elections in May.
It was also stated that neither there was any attachment of property in the case nor there were any proceeds of crime in terms of the Prevention of Money Laundering Act.
"The entire aspect of disproportionate assets allegedly acquired by the petitioner when he was minister/MLA in the state of Karnataka was thoroughly investigated by the respondent in the first ECIR and thus, the initiation of separate proceedings on the same set of facts and ingredients of the offence is impermissible in law and amounts to malafide exercise of power by the respondent," the plea has said.
"The commencement of fresh proceedings under the PMLA on identical facts and covering the same period is "directly infringing the rights guaranteed under the Constitution more particularly Article 20(2) and Article 21...", the plea has added.
The ED has opposed the petition on the ground that the two ECIRs lodged by the agency pertain to different cases with certain overlapping of facts which cannot be termed as re-investigation.
The agency has said in its counter affidavit that the two ECIRs against the petitioner are based on different set of facts and even the scheduled offence in both the cases are different and the quantum of proceeds of crime involved is also different.
“…the allegation made in the complaint of the Income Tax department and FIR of CBI depict different modes of generation of the crime proceeds and that role of different accused persons may come into light, thus the petitioner cannot claim that he has already been investigated of the same offence,” the affidavit has said.
The ED, in its reply, has further said that as per the first ECIR, the scheduled offence is section 120B IPC and the quantum of proceeds of crime recorded in it is Rs 8.59 crore.
Whereas, the present ECIR related to disproportionate assets to the tune of Rs 74.93 crore and emanates from a different FIR of CBI lodged in Bengaluru on October 3, 2020 under the Prevention of Corruption Act, it has stated.
The agency has said that on the basis of preliminary inquiry done by the CBI, ACB, Bengaluru, it was found that Shivakumar and his family are in alleged possession of disproportionate assets of the known source of income during the check period April 1, 2013 to April 30, 2018.
The ED has added it is well settled that at the stage of investigation, it is premature to take the plea of double jeopardy and that it is wholly impermissible in a petition challenging the constitutional validity of certain provisions of the special act to pass the interim orders in the nature of final anticipatory bail.
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