Power to arrest is proportional to its checks, balances: Delhi court to ED

Judge noted that court had in November 2022 opted not to summon Sunil Agarwal as it did not find the evidence collected on record against him to be sufficient to consider him an accused

A Delhi court has pulled up the Enforcement Directorate (ED) while granting bail to an accused in a money laundering case and said that the power to arrest must be directly proportional to its checks and balances coupled with unambiguous regulations.

Granting bail to Mangelal Sunil Agarwal, Additional Sessions Judge (ASJ) Dheeraj Mor noted that in a "very unpleasant situation", while the previous investigating officer had cited him as a witness, the next IO chose to arrest him based on the same evidence available on record.

"The hallmark of investigation is its objectivity. Subjective interpretation of IO must be deprecated as it would make a supposed objective investigation dependent upon his uncontrolled whims and fancies, who has been conferred extreme power of arrest that leads to curtailing liberty of an individual," the judge said in the order passed on August 31.

"In these circumstances, it is apparent that one of the lOs was/is wrong and either acted upon the considerations extraneous to law for the reasons to be ascertained or he was incompetent to comprehend the facts of the case in proper perspective.

"Both the situations are perilous as it may allow an accused getting (away) scot-free or result in unlawful curtailment of liberty of an individual thereby impinging his cherished fundamental right of liberty," the order stated.

The judge noted that the court had in November 2022 opted not to summon Agarwal as it did not find the evidence collected on record against him to be sufficient to consider him an accused.

"It appears that the IO, while arresting the applicant on the basis of the same evidence, chose to sit as an appellate forum on the wisdom of the court which desisted to summon the applicant for the offence based upon the same evidence," the court said.

It further noted that after arresting the applicant, the ED has been trying to collect additional evidence against Agarwal by evaluating his mobile data and emails.

"That is putting a cart ahead of horse and nothing more but an attempt to justify the arrest," it said.

The court said that admittedly, the IO has the prerogative to take the decision to arrest or not arrest any person.

"However, it cannot be arbitrary... the act of the IO to arrest him on the same evidence is an apparent overreach of his powers that deserves to be disapproved. The power to arrest must be directly proportional to its checks and balances coupled with unambiguous regulations or Standard Operating Protocol (SOP)," it said.

Accordingly, the ED director is requested to apprise this court if there is any SOP or regulation for affecting arrest and what process is adopted by seniors to monitor the arrest of an accused, the order stated.

"If these systems are evolved and are in place, this case is classic example of its violation. Therefore, it is expedient in interest of justice to call upon worthy Director, ED to conduct an inquiry for ascertaining the reasons for adopting absolutely diametrically opposite approach by two IOs confronted with exactly same evidence against the accused," it said.

The court also directed the ED to file an inquiry report within a month, stating if either of the IOs faulted in his duties and what action, if any, was taken against the erring official.

"In case the opposite views of both of them are found to be justifiable, though (it) doesn't appeal to common sense, it be clarified as to how to reconcile with this distasteful situation," it said.

According to the prosecution, the case was filed against Phoenix International FZC and other accused, including Agarwal, in connection with an alleged conspiracy to cheat Ligare Aviation Ltd. by siphoning of its funds to the tune of Rs 18.88 crore using fake invoices.