Delhi HC grants ED time to file response in former CM Kejriwal’s plea challenging absence of sanction to prosecute

Solicitor General of India Tushar Mehta, appearing on behalf of ED virtually before the court on Thursday, submitted at the outset, “It is my case that there’s a sanction, I need to put it on record by way of an affidavit… there’s a sanction, I’ll file with my affidavit.”

However, senior advocates N Hariharan and Rebecca John on behalf of Kejriwal, pointed out before the court that while there is sanction to prosecute in the CBI proceedings against Kejriwal in relation to the alleged excise scam, they were not aware of any such sanction in the ED case.

Addressing SG Mehta and the court, Hariharan said, “Because it (prosecution sanction) was not supplied to us, if there’s an ED sanction… Issue is that, when chargesheet (the seventh supplementary prosecution complaint filed by the ED which names Kejriwal as an accused) was filed or otherwise, there was no sanction under CrPC Section 197. Subsequently only panchnama was filed.”

Hariharan and John added that apart from the absence of prosecution sanction while taking cognisance of the complaint, Kejriwal’s plea is also challenging two other aspects: “One is, this particular chargesheet is the 7th prosecution complaint. There’s nothing afresh which has been investigated, it is the same prosecution complaint as the 6th prosecution complaint, including witnesses.”

SG Mehta, however, rebutted, saying, “This is factually incorrect, additional investigation was taken up and this same argument has been rejected by trial court.” Kejriwal’s counsels contended that the trial court “never went” into this aspect.

Meanwhile, Kejriwal’s counsels also pressed the court for a stay on the trial court proceedings in the interim, which the court declined. The court also refused to grant Kejriwal’s oral request to grant exemption from personal appearance before the trial court on the next date of hearing and instead suggested that Kejriwal seek relief before the trial court itself.

Kejriwal, in his petition, has submitted that the 7th supplementary prosecution complaint dated May 17 this year which named him as an accused, has been filed without adducing any additional material on record.

It has also been pointed out that the “majority of the material relied upon” in the supplementary chargesheet of ED against Kejriwal “was already available while filing the previous prosecution complaint and (prior) supplementary chargesheets” and thus the same material could not have been the basis to file the chargesheet against Kejriwal.

Relying on a 2024 SC verdict, Kejriwal has contended in his petition that summoning of an accused “without any fresh/additional evidence in the supplementary chargesheet… is nothing but a review of the original order of summoning and as such abuse of the process of Court.”

Kejriwal is seeking the quashing of the trial court’s order from July 9 this year where it had taken cognisance of the 7th supplementary chargesheet.