ED to appeal order in case against Gandhis, to file fresh complaint

“The special PMLA court has not made any observation on the merits of the case but raised a technical issue that the ED case is based on a private complaint [by former BJP MP Subramanian Swamy] and not a predicate offence by another agency. It has also said we can add to the probe that Delhi Police is conducting. Once Delhi Police files a chargesheet, we will file a fresh prosecution complaint incorporating the findings of their probe,” a senior ED officer said.

Sources said a legal question was hanging over the case since the beginning as the pre-requisite of the existence of a predicate offence under the Prevention of Money Laundering Act (PMLA) had not been fulfilled. Under the PMLA, ED can register a case only if another agency has registered an FIR under offences listed in the PMLA schedule.

At the time of registering an ECIR (parallel to FIR under PMLA) in the case in 2021, the ED had argued it was authorised to register a case if there is a court order specifying a crime has been committed. The ED case was based on a trial court order that allowed the Income Tax Department to probe the affairs of National Herald and even make a tax assessment of then Congress president Sonia Gandhi and party leader Rahul Gandhi.

“This was also argued in the special court and it was hoped the court would accept the argument. However, since the court has refused to interpret the law in the manner that we understood, we will file a fresh complaint,” another ED officer said.

Sources said the agency understood that a case based on a private complaint was vulnerable to the complainant withdrawing the charges at a later stage. “That is why a reference in the matter was sent to Delhi Police which registered a case last month,” the officer said.

While refusing to take cognizance of the ED prosecution complaint, Special Judge Vishal Gogne of Rouse Avenue Court said, “Since the present prosecution complaint pertaining to money laundering is founded on cognizance and summoning order upon a complaint by a public person, namely Dr Subramanian Swamy, and not upon an FIR, cognizance of the present complaint is impermissible in law.”

“An investigation pertaining to the offence of money laundering is not maintainable on the basis of a complaint under Section 200 CrPC (examination of complainant)… cognizance when such complaint is filed by a public person, and not upon an FIR, is not permissible in law,” Judge Gogne said.

The I-T probe against the Congress leaders arose from the investigation into the private criminal complaint filed by Swamy before a trial court in Delhi in 2013. The complaint had alleged cheating and misappropriation of funds on part of Gandhis in acquisition of the newspaper. Swami had alleged that the Gandhis acquired properties owned by National Herald by buying over the newspaper’s erstwhile publishers through Young Indian in which they have 86 per cent stake.

Sonia and Rahul were granted bail in the case by the trial court on December 19, 2015. The ED’s chargesheet in the case was filed on April 9 this year.

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