Why ED didn’t seek sanction to file charge sheet against Gandhis

Even though the Enforcement Directorate (ED) has been ordered by the Supreme Court to take a prior sanction before filing charge sheets against public servants, the agency has charged former Congress president Sonia Gandhi and leader of opposition in the Lok Sabha, Rahul Gandhi, without such a move as the alleged irregularities in Associated Journals Limited (AJL) and Young Indian (YI) case have no link with their role as parliamentarians, said an officer of the agency, who did not want to be named

In a November 2024 ruling, the Supreme Court said that section 197 (1) of the criminal procedure code (CrPC) -- under which currently the Central Bureau of Investigation (CBI) must mandatorily take prior sanction - would be applicable in prevention of money laundering act (PMLA) cases as well.

To be sure, 197 (1) CrPC has been replaced by section 218 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) and has same provisions.

As reported by HT in January, ED director Rahul Navin, following the apex court ruling, issued a directive to all the units of the financial crimes probe agency to mandatorily take sanction “without prejudice” against public servants before filing prosecution complaints (ED’s equivalent of charge sheets).

In fact, ED has already taken sanction in its probes against Lalu Prasad Yadav (in its land-for-jobs probe), Arvind Kejriwal and Manish Sisodia (in alleged irregularities in Delhi’s excise policy), and P Chidambaram (in the INX Media case).

Explaining why the agency didn’t need a sanction from the Lok Sabha speaker and the Vice President in the case of Rahul Gandhi and Sonia Gandhi, respectively, an officer said :“The AJL irregularities pertain to their role as private persons – as directors of Young Indian (YI). The allegations have nothing to do with their status as members of parliament, thus the sanction was not needed”.

The charge sheet was filed before the court of Principal district and sessions Judge (Prevention of corruption act) at Rouse Avenue, which is a practice. This judge then marks the charge sheet to the judge concerned. In this case, the principal judge marked it to the special judge for MP/MLA cases – Vishal Gogne-- who listed the charge sheet for cognizance on April 25.

The ED probe is based on a cognizance order issued on June 26, 2014 by a Delhi court based on a private complaint filed by BJP leader Subramanian Swamy. The predicate offence (primary crime from which the proceeds of crime have been probed)matter –– pertaining to Indian Penal Code sections of cheating and criminal conspiracy –– is currently under trial before the additional chief judicial magistrate-03, Neha Mittal, at Rouse Avenue courts.

The proceedings in the predicate offence were stayed following a February 2021 Delhi high court order and the next hearing in the matter is on August 2 this year.

ED has alleged that the Gandhis are the “beneficial owners” of all the properties of AJL – estimated to have current market value of ₹5,000 crore - after it was taken over in 2010-11 by YI, in which they are the majority stakeholders. The mother and the son have been named as accused numbers 1 and 2 in the charge sheet filed under sections 3 and 4 (which deal with the money laundering and its punishment) of the PMLA.

Congress has termed the charge sheet “political vendetta”. Party MP Abhishek Singhvi said, “Several judgments have held that sanction is required in case of public servants. The Congress leaders involved in the case are not only active public servants but also senior party functionaries. The courts have not specifically decided on the issue of sanctions for MPs as the earlier cases have been mostly against bureaucrats. but the lack of sanction from the competent authority will definitely be a major point in our argument.”

A bench of justices Abhay S Oka and AG Masih ruled on November 6, 2024, that prior sanction is mandatory to prosecute public servants in money laundering cases. “The object of Section 197(1) must be considered here. The object is to protect the public servants from prosecutions. It ensures that the public servants are not prosecuted for anything they do in the discharge of their duties. This provision is for the protection of honest and sincere officers,” the SC said.

The financial crimes probe agency had initially contented that it doesn’t require sanction in parallel probes where predicate agency (like CBI) have already got it. However, after internal discussions, it was decided that it will go prior sanction in all relevant cases against public servants instead of waiting for courts to hold cognizance of charge sheets, said the officer cited above.