Waqf Board case: Delhi HC seeks response from MLA Amanatullah Khan, wife on ED plea

On November 14, 2024, citing a lack of prior prosecution sanction against Khan, the trial court had released Khan, who an MLA then, on bail. Khan and Siddiqui were implicated in a supplementary prosecution complaint, which is equivalent to a supplementary chargesheet, by the ED on October 29, 2024.

Khan has been accused of misusing his position as chairperson of the Delhi Wakf Board, including illegally leasing out Waqf properties and allegedly making appointments in exchange for illegal gratification.

The ED, through special counsel Zoheb Hossain, has challenged the trial court’s decision primarily on three aspects. Apart from the special trial court refusing to take cognisance in the absence of requisite prior sanction to prosecute, the ED is also challenging Khan’s release on bail by the trial court after the court concluded that the same is necessary in light of the absent sanction. The ED has also challenged one of the trial court’s grounds of refusal to take cognisance – that the central agency’s chargesheet fails to establish that Siddiqui had prior culpable knowledge or mens rea (intention) of the scheduled offence or the proceeds of the crime.

Hossain argued on Tuesday that the offences Khan has been accused of cannot be said to have been done in discharge of official duty, and thus, the prior prosecution sanction was not required. Hossain also added that prior to filing the supplementary prosecution complaint implicating Khan and Siddiqui as accused, the ED had earlier filed the main complaint on which cognisance has already been taken, and thus the trial court ought to have issued summons to Khan and Siddiqui when the supplementary chargesheet was filed, “as cognisance is to be taken of the offence and not the offenders”.

Hossain also added that the ED was not given an opportunity to address arguments on the aspect of requirement of prior sanction to prosecute, and the trial court “failed to appreciate that it is not a case of complete absence of sanction, in fact the sanction was already there in a predicate offence and had the opportunity been afforded to (ED) the said sanction could have been placed before the special judge”.