ED Can Instruct Prosecutors On Facts, But Cannot Instruct How Prosecutors Should Act In Court: Supreme Court

“We may also note here that the Enforcement Directorate and its Director can give instructions to public prosecutors on facts of the case. However, the Enforcement Directorate or its Director cannot give any instructions to the public prosecutor about what he ought to do before the court as an officer of the court”, the Court held.

A bench of Justice Abhay Oka and Justice Augustine George Masih clarified the trial court's order directing the Director of the ED issue instructions to public prosecutors not to oppose bail applications when trial delays were caused by the ED's actions.

The Court clarified that this order should not be interpreted to prevent public prosecutors from opposing bail applications when delays are not the fault of the ED.

“However, this observation will not prevent public prosecutors from opposing a bail petition on the ground that act or omissions on the part of Enforcement Directorate are not responsible for delay of trial. Therefore, this order cannot be read to mean that the public prosecutors are not entitled to oppose the bail petitions”, the Court held.

The trial court had criticized the ED for delaying trial while granting bail to Kausar Imam Siddiqui, an accused in the Delhi Waqf Board money laundering case. Justice Oka had earlier described the trial court's direction to the Director of ED as “drastic.”

“It is well settled that the public prosecutor has to be fair. If a case is covered by a binding precedent, it is his duty to point out the same to the court. Perhaps the learned special judge intended to say was that when the public prosecutor is satisfied that the trial has been delayed on account of default or conduct on the part of Enforcement Directorate, the public prosecutor should take a fair stand”, the Court said in its order today.

The Supreme Court also granted bail to Siddiqui's co-accused Zeeshan Haider and Daud Nasir. The Court noted that both Haider and Nasir had been in custody for over a year without charges being framed in the complaint filed under the Prevention of Money Laundering Act (PMLA). The complaint cites 29 witnesses and relies on around 50 documents, totaling approximately 4,000 pages. Given the delay in the trial, the Court accepted the undertakings provided by the accused not to delay the trial further.

The bench stated that, in light of the delay in trial and the undertakings, the principles from its earlier judgment granting bail to Senthil Balaji would apply, and the appellants were entitled to be released on bail subject to appropriate conditions, including adherence to their undertakings.

“The trial is not likely to commence soon as even charges have not been framed. Therefore, in the facts of the case and in view of the undertakings furnished by the appellants, what is held in paragraphs 25 to 28 of the judgement of this court in the case of V. Senthil Balaji v. Deputy Director will have to be followed and appellants will have to be enlarged on bail”, the Court held.

The Court further made it clear that if the trial is delayed due to any act or omission on the part of the appellants, the ED may apply for the cancellation of bail.

Background

The case involves allegations against AAP MLA Amanatullah Khan, who, as Chairman of the Delhi Waqf Board, allegedly engaged in illegal recruitments that generated proceeds of crime. These funds were allegedly used to purchase properties through associates. Khan was granted bail earlier after the trial court did not take cognizance of the ED's supplementary chargesheet due to a lack of requisite sanction under Section 197(1) of the CrPC.

Case no. – SLP(Crl) No. 9374/2024

Case Title – Zeeshan Haider v. Directorate of Enforcement