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Synopsis

The Supreme Court has said that the Enforcement Directorate or its Director can give instructions to a Public Prosecutor on facts of the case, however, the central agency or its chief cannot give any directions or instructions to the Public Prosecutor about what he ought to do or ought not to do before the court as an officer of the court.

A bench of Justices Abhay S Oka and Augustine George Masih made the observation while dealing with criminal appeals filed against order passed by a special judge in a money laundering case against Zeeshan Haider and others who were accused of investing ill-gotten money of Delhi MLA Amanatullah Khan.

The Enforcement Directorate led by Additional Solicitor General S V Raju invited the court's attention to the order passed by the Special Judge on November 27 while dealing with cases arising out of the Prevention of Money Laundering Act.

"Before parting, with the order, it will be in the interest of justice to draw the kind attention of the legal wing of ED regarding the directions issued by the Apex Court in Javed Gulam Nabi Shaikh case... It is expected of worthy Director that he shall issue appropriate instructions to the SPP’s not to oppose the bail plea where the delay of trial has been occasioned due to the conduct of ED," the Special Judge had observed.

Having gone through the observations, the bench noted, "It is well settled that a Public Prosecutor has to be fair. If a case is covered by a binding precedent, it is his duty to point out the said aspect to the Court. Perhaps what the Judge intended to 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".

"However, the observations 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 the delay of trial. Therefore, this order cannot be read to mean that the Public Prosecutors are not entitled to oppose the bail petitions," the bench said.

The court also noted that the Enforcement Directorate or its Director can give instructions to a Public Prosecutor on facts of the case.

"However, Enforcement Directorate or its Director cannot give any directions or instructions to the Public Prosecutor about what he ought to do or ought not to do before the Court as an officer of the Court," the bench said.

Clarifying the paragraph, the bench held that there was no requirement on the part of Director of Enforcement Directorate to issue directions as contemplated over there.

In its order, the court allowed the appeal by directing the accused to be enlarged on bail in view of undertakings given by them.

The court noted the appellants had been in custody for about one year and one month. Charge had not been framed in the complaint filed under the Prevention of Money-Laundering Act, 2002 (PMLA). In the complaint, 29 witnesses had been cited and about 50 documents were relied upon which ran into 4000 pages approximately.

"The trial is not likely to commence 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 decision of this Court in the case of V. Senthil Balaji versus The Deputy Director, Directorate of Enforcement, (2024) will have to be followed and the appellants will have to be enlarged on bail," the bench said.

The court, however, clarified that if the hearing of the complaint is delayed due to any act or omission on the part of the appellants, it will be open for the respondent to apply for cancellation of bail before the Special Court.

Case Title: Zeeshan Haider Vs Directorate of Enforcement