HC seeks Gandhis’ reply on ED challenge to trial court order

The Delhi High Court on Monday asked Congress leaders Sonia Gandhi, Rahul Gandhi and others to respond to a plea by the Enforcement Directorate (ED) challenging the order of the trial court that refused to take cognisance of its chargesheet against them in the National Herald case. Justice Ravinder Dudeja issued notice to the Gandhis and others on the main petition as well as on the ED’s application seeking a stay on the December 16 trial court order, which held that cognisance of the agency’s complaint in the case was “impermissible in law” as it was not founded on an FIR. The high court listed the matter for further hearing on March 12, 2026.

Besides Gandhis, the High Court issued notices to Suman Dubey, Sam Pitroda, Young Indian, Dotex Merchandise Pvt Ltd and Sunil Bhandari on the ED’s plea. While Solicitor General Tushar Mehta represented the ED in the case, senior advocates Abhishek Singhvi and RS Cheema represented the Gandhis.

In its order, the trial court had said that an investigation and the consequent prosecution complaint (equivalent to a chargesheet) pertaining to the offence of money laundering is “not maintainable” in the absence of an FIR for the offence mentioned in the schedule to the Prevention of Money Laundering Act (PMLA).

It said the agency’s probe stemmed from a private complaint filed by BJP leader Subramanian Swamy and not an FIR. During the hearing on Monday, Mehta contended that the trial court has gone “horribly wrong” with its view and this would affect other cases.  

He said that after investigation, the ED officials gather evidence and other material, and, like the police files a report, the ED files a prosecution complaint.

Singhvi disputed the submissions made on behalf of ED but said he will accept notice and file a reply in the matter. “I want to say something. I am only saying that there is a perspective which is contrary to what my friend is saying,” he said. The ED, in its plea, said the trial court order has in effect given a hall pass to a category of money launderers only on the ground that the scheduled offence is reported by a private individual by way of a complaint to a magistrate.

“The sole ground given for declining cognisance is that a prosecution complaint filed by an authorised officer under the PMLA cannot be based on a scheduled offence emanating from a private complaint filed by a private individual and such scheduled offence must be registered only by a law enforcement agency, that is, either by way of an FIR by the police or a complaint by a person authorised to investigate the scheduled offence,” the plea said.

The ED said the special judge has failed to appreciate that cognisance taken by a competent court on a private complaint filed by Subramanian Swamy stands on a much higher footing than a mere FIR registered by police, wherein there is a possibility that cognisance may be declined after filing of a chargesheet by police. “In the present matter, cognisance of the private complaint constituting the scheduled offence had already been taken by the competent court. Hence, the scheduled offence stood on a much higher pedestal than a mere FIR lodged by police,” it added.

The plea said the trial court judgment created two impermissible classes of scheduled offences leading to complete manifest arbitrariness in which a person who commits a scheduled offence will not be prosecuted for generation and laundering of proceeds of a crime only because it is based on a private complaint to a magistrate, of which cognisance was taken by applying judicial mind. The ED said the anomaly created by the trial court’s order would mean that a person convicted of cheating based on a private complaint would suffer no consequences under the PMLA and the proceeds of crime generated would be freely used and integrated into the economy.

The agency added that at the time of cognisance, the scope of inquiry is very narrow and the court has to strictly restrict itself to the averments in the complaint and has to only see whether there are sufficient grounds to initiate the process.