In a setback to former finance minister P Chidambaram's move for an early exit from Tihar jail, a Delhi Court on Friday dismissed his plea to surrender before the Enforcement Directorate(ED) in the money laundering case in the INX Media scam. The court order giving the ED the "exclusive right" to decide when to arrest a person for custodial interrogation effectively meant that Chidambaram will continue to be in jail till September 19. On September 5, the 73-year-old Congress veteran was remanded to 14-day judicial custody in a related corruption case filed by the Central Bureau of Investigation(CBI).
Special Judge Ajay Kumar Kuhar said the court cannot interfere in the decision of the ED, which has preferred not to arrest Chidambaram at the moment and also there was no process issued against him by the court. Therefore "his surrender application will not ipso facto be accepted," the judge said. Solicitor General Tushar Mehta, appearing for the ED, earlier told the court that the agency was completing its investigation pertaining to some aspects of the money laundering which are required to be gone into before an effective and meaning custodial interrogation of Chidambaram can take place.
"Since September 6, 2019, six persons have been summoned for interrogation and three are under interrogation which was still going on. Only after the background investigation was completed, the interrogation of Chidambaram would be meaningful. Since he was in judicial custody, he was not in a position to tamper evidence or hamper investigation," said Mehta and advocate Nitesh Rana. Mehta further said the probe agency would seek Chidambaram's arrest at an appropriate time.
Senior advocate Kapil Sibal, appearing for Chidambaram, on his part said though the ED was pressing earlier for his arrest, they are now saying it was not required at this stage. He further claimed that the purpose behind the stand taken by the ED now was to harass Chidambaram and to prolong his incarceration one way or the other.
"The ground taken by the ED that they were interrogating some persons as of now is just a plank to avoid Chidambaram's arrest," he said. Sibal had said that ED had come to the Congress leader's house to arrest him on August 20 and 21 but now they do not want to do so just to ensure that he remains in judicial custody.
The CBI had registered an FIR on May 15, 2017, alleging irregularities in the Foreign Investment Promotion Board (FIPB) clearance granted to the INX Media group for receiving overseas funds of Rs 305 crore in 2007 during Chidambaram's tenure as the finance minister. Thereafter, the ED lodged a money laundering case in the same matter in 2017.
"There was no dispute with the proposition that the investigation was the exclusive right of the investigating agency. The arrest of an accused was also part of investigation. The investigating agency has to decide when to arrest a person. "It would be wrong to assume that if application for anticipatory bail has been rejected there was no option but to arrest the applicant forthwith. The position of law was settled that the investigation was the prerogative of the investigating agency. Thus, in the matter which are in the domain of the investigating agency exclusively, the interference from the court is to be avoided," said judge Kuhar.
The court said that in the money laundering case, Chidambaram has not been arrested nor has the court taken cognisance of any offence on any complaint or charge sheet. "Neither a complaint nor the charge sheet was pending before this court. At this stage, when the investigating agency was not inclined to arrest the accused and there was no process issued against the accused by the court, the surrender by an accused in the court will not ipso facto be accepted by the court and he will be deemed to be in custody of court.
"In the present case, the applicant has not been arrested nor this court has taken cognisance of any offence on any complaint or charge sheet. Therefore, the applicant cannot be remanded to custody...." it added. It said Chidambaram had only moved an application to surrender and he was not taken into custody in the money laundering case.
"There is not even a notional surrender because the court has not taken the applicant into custody in this case though he happens to be in custody in the other case by the CBI," the court said.
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