Above: Karti Chidambaram (file picture)
The Delhi High Court bench of Justices S Murlidhar and Justice I S Mehta on Friday (March 9) granted interim relief to Karti Chidambaram from arrest from the Enforcement Directorate (ED) in the INX Media money laundering case.
The bench granted relief till next date of hearing i.e. March 20.
The bench also issued notice to ED and Union of India to file their reply before the next date of hearing. No coercive action shall be taken against Karti Chidambaram till the next date of hearing, said bench.
Karti had approached the Delhi High Court seeking quashing of summons and all proceedings initiated by the Enforcement Directorate (ED) in the case after Supreme Court had allowed him to do so.
During the course of proceedings, Karti’s counsel Senior Advocate Kapil Sibal said that the petitioner has always cooperated with the investigation and the challenge is his arrest without registration of the FIR. As soon as he returned from foreign on February 28, 2018 he was arrested without acknowledgement.”
To which the bench asked: “When did he leave the country?”
Sibal replied: “He left on February 8 and returned on February 28, 2018. I am neither a shareholder nor a director of the company in question. Let ED point out any money trail. Invoice of 3.5 crore raised in the name of the INX Media by other company. To which we have no knowledge. We have no idea of the payment 3.5 crore which has been alleged by the ED.”
The bench asked: “The payment was towards the management consultancy? Where this company incorporated?”
Sibal replied: “In Chennai. There are two allegations. One is 10 lac allegation and other is 3.5 crore allegation.”
ED’s counsel ASG Tushar Mehta interrupted by saying: “CBI is not the subject matter here in this case.”
“What is the crime? That I influence the official. As far as I am concerned this is the allegation against me. What are they have to investigate if ten lacs is proved by me? For what purpose they want my custody? Unless I have gone to official and persuade them there is no case made against me. As far as 3.5 crore is concerned there has to be some inducement,” said Sibal.
The bench further questioned: “We don’t know whether the ECIR has some information at this stage? Let us see the copy of ECIR dated February 27, 2018 the day before Karti was arrested.
They haven’t furnished that to me until today. They say I am not cooperating because I am not aware. I made a statement before the SC that I will appear before any investigation. The transaction is the same as CBI. 10 lakhs is the same with CBI and ED investigations. I am not fugitive from Justice. Anyway I want to say that in the year 2008, sometimes in April that Vir Sanghvi made a complaint about INX Media. Matter was referred as serious fault investigation by myself.”
The bench asked: “It seems to have taken a lot of time to investigate.”
Sibal replied: “I am concerned that I was the person responsible for the investigation against the INX media. The then Finance Minister referred the investigation to the income tax department. There is no FIR under section 154 and 155. Without reference to FIR there is no power to arrest. If it is a blanket power then how the arrest can be made. Even the ECIR is not a FIR.”
The bench asked: “You mean ECIR is not a FIR and without registering a FIR they cannot arrest?”
Sibal replied: “Yes. The procedure was not followed. If they filed a charge or charge sheet then I can understand to cooperate but without that how can I be cooperating. Either directly or indirectly the attempts were made by them to involve me. What are the facts where they say I am involved in the transactions? They say the invoice was raised by Chest management and the payment was made to INX Media. I am nothing to do with it. The FIR doesn’t even reveal that how can they proceed under section 3 section 8 PMLA under section 120 B conspiracy, under section 420. I want an interim protection. As far as abroad is concern I have no intention to go abroad.”
Senior Advocate Abhishek Manu Singhvi started arguments for Karti and said: “There is a very serious issue arises on the procedure. They completely forgot the Magistrate powers under the procedures. Arrest by ED totally irrelevant. No interrogation done. No arrest can be made by the police officer unless it is lawfully made and it is against the constitutional right. The police officer must have to justify arrest. Here, the arrest part is very weird.”
Mehta countered: “There is a offence of tampering with evidence.”
Singhvi again reiterated: “Karti travelled twice under the court’s order. Karti gave them details and came on time. Second is cooperation, they called me twice in the ED and twice in the CBI. I went there and attended the meeting. Not a summon has issued when my arrest was made by them. In today’s case there is a money trail and tampering with the evidence. There is no trail without a watch. What you cannot do in 2008 you are doing in 2018? Till today there are no physical invoices with them (ED). Second if I send an invoice to pay 100 rupees the transaction is not completed unless the payment made against the invoice. There is no money trail of invoice or the payment made. They haven’t got any money trail in the said invoices if there are any. A lady who is alleged to murder her daughter made a statement under the 164, and they are relying on that. The objectionable part of section 24, the burden of proof is on the prosecution. That’s why they didn’t approach the magistrate. They barred the liberty of the petitioner. Here are the pressing emergencies.”
Mehta retorted: “There are around 3000 cases pending under the PMLA act in the country. My limitation is that investigation is going on and it is under process I may not be able to share many things those were come on record. There is substantial material and relevant material on record. We may produce that and my lords don’t allow any interim protection or relief. 10 lakhs amount was the ‘advantage’ by way of cheque. My friend is right to say that he is neither a shareholder or director. Please allow me to show what is the advantage? The material is on record. Please allow me to show what is ‘advantage’? Gratification may be in 2007 and money trail may be lead till today.”
Sibal objected to the claims of Mehta and said that it is not a case diary.
Mehta said that it is a case diary.
Sibal reiterated: “Under section 172, every police officer must maintain a case diary. It is not evidence.”
Bench interrupted and asked: “Suppose they say they need to make some more discoveries and the court can allow it.”
Sibal replied: “Neither they showed it to me nor to the CBI how can they show to your lordship? I have objections.”
Bench said to Mehta: “You may have material but it is not a stage to pressing it.”
Mehta replied: “The bail application is pending and they want this order to get the bail. We inform them (petitioner) about all our accounts.”
Bench asked: “You have the custodial interrogation for ten days. If you have recovered much more show us. If he offers to assist do you need to arrest?”
Mehta replied: “We are only discussing on the PMLA part. Please examine Section 438 CrPC, I will show it to you why we need his custodial interrogation. Gravity of the accusation. This is Directorate of Enforcement a Central agency showing it to you with all level of sincerity.”
Sibal objected: “Section 438 CrPC is the proposed amendment but not notified.”
Bench interrupted and asked: “Is that a summary of all of that.”
Mehta replied: “Please see which I have recovered during the raid. Come to page 51 where it is cited 5 Lacs US Dollars. The CBI bail is pending and I am yet to oppose that bail. During that investigation all the statement of officials recorded and it is not a witch hunt.”
Mehta replied: “We are only looking at it from the part of PMLA. If the Deputy Director from Central Government has reason to believe that any person has objectionable material then he is authorised to arrest. It’s a voluminous record which we have recovered and made a strong case under the Money Laundering Act.
Mehta stressed: “Today I am seeking his extension of Custody in the CBI Court. Even if this cancelled then also he will remain in judicial custody. Bail application if allowed then he will be released. The presumption is that if today if he released by CBI Custody, then some official from ED come and arrests him.”
Bench asked: “There are numerous conditions on which the court can grants bail.”
Mehta replied: “Allow us to interrogate while he is in the Judicial Custody.”
—India Legal Bureau