SC mulls over mechanism for transparent, fair investigation in cases involving ED, state officials

SC mulls over mechanism for transparent, fair investigation in cases involving ED, state officials

New Delhi | The Supreme Court on Thursday mulled over formulating a fair and transparent pan-India mechanism for investigation of cases involving officials of the Enforcement Directorate (ED) and state governments to eliminate apprehensions about political vendetta thwarting probes.

A bench of Justices Surya Kant and KV Viswanathan sought a response from the Tamil Nadu government in two weeks on a plea by the ED seeking transfer of the probe in the case against its officer Ankit Tiwari, arrested by the Tamil Nadu Directorate of Vigilance and Anti-Corruption (TNDVAC) on charges of bribery, to the CBI.

The bench asked the Tamil Nadu Police to produce before it on the next date of hearing the material they have collected while probing the bribery case, after Solicitor General Tushar Mehta, appearing for the ED, alleged that files related to investigation against ministers were taken away by the state police.

Justice Kant asked senior advocates Kapil Sibal and Amit Anand Tiwari, appearing for the Tamil Nadu government, to not proceed with the investigation in the bribery case until the next date of hearing.

Justice Kant asked both the Tamil Nadu government and the federal anti-money laundering agency to suggest a fair and transparent mechanism for investigation.

"We don't want criminals in genuine cases to go scot-free amid allegations and counter allegations over investigation in our federal structure," the bench said.

At the outset, Mehta said the ED was not supporting its officer accused of bribery but wanted a fair and proper investigation.

He alleged Tamil Nadu police were not sharing the FIRs of the scheduled offences (of corruption) and virtually stalling the investigation by the ED in money laundering cases against state ministers and officials.

"This is just the starting. If this happens in different states where ED officers are posted, what will happen to this country? Your (ED) offices are there all over India. We are not saying you are vindictive or they are vindictive. But suppose in a given scenario, there is a tit-for-tat reaction. Your officers are sitting in the states. If there is a vindictive action from their side as a tit-for-tat to what they perceive as a vindictive action, what will happen to the country," Justice Viswanathan said.

The bench asked the lawyers of both the sides to sit together and suggest a mechanism to the court as to how investigation involving interstate issues should be conducted or when there are governments of different parties at the Centre and in the state.

"To eliminate the apprehension of political vendetta or actual political vendetta, we need to have a mechanism. Let us find some transparent mechanism where the investigation can commence while these types of situations can be avoided," Justice Kant said.

Sibal alleged the federal structure of the country is continuously being jeopardised and officials in non-BJP ruled states are afraid about taking a decision on any matter.

Mehta claimed the Tamil Nadu Police, on the pretext of investigating the case against Tiwari, raided ED offices and seized several unconnected files related to cases against state ministers under the scanner of the central agency.

"There may be genuine cases where ED may have to go in…We want the best practices to be followed. There has to be a mechanism where a central agency, particularly when the ruling party is different in the Centre and the State, can investigate. Something has to be evolved so that while genuine criminal cases don't go scot-free merely because it is being handled by the central agency, at the same time there is no mala fide witch-hunting," Justice Viswanathan said.

The bench was also critical about the manner in which the plea for a CBI probe in the bribery case was entertained and rejected by the state high court on December 15, 2023.

The bench pulled up the Tamil Nadu government for not sharing the FIRs related to illegal sand mining with the ED, saying those should have been uploaded on the state police's website. Mehta claimed the website having the FIRs was blocked under the orders of the competent authority. Sibal countered the argument and said the ED never asked for FIRs in any other state.

"Aren't the FIRs supposed to be uploaded on the website? Why so much secrecy? If you have registered an FIR against a public servant for corruption or illegal mining or disproportionate assets, what is the state's propriety to say that we will not permit further investigation by the ED?” Justice Kant asked Sibal.

Sibal said for the ED to investigate a case, there has to be a predicate (scheduled or primary) offence, and illegal sand mining was not a scheduled offence under the Prevention of Money Laundering Act (PMLA).

The bench, after issuing the notice, said the court is not observing anything in the order but both the ED and the state government must sit together and explore the possibility of formulating a mechanism for investigation of cases in a fair and transparent manner.

The ED, in its plea, has also sought a direction to the Tamil Nadu government to appoint a nodal officer for sharing with it all FIRs registered in the state as regards scheduled offences under the Prevention of Money Laundering Act (PMLA).

On December 1, 2023, the ED officer was arrested by the Directorate of Vigilance and Anti-Corruption (DVAC) of the Tamil Nadu government for allegedly demanding and accepting a bribe of Rs 20 lakh from a government employee.

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