NEW DELHI: In a setback to former finance minister P Chidambaram, a Delhi Court Friday dismissed his plea to surrender in the money laundering case arising out of the INX Media scam, saying it was the "exclusive right" of the Enforcement Directorate to decide when to arrest a person.
The court said since the ED, an investigating wing under the Ministry of Finance, was not inclined to arrest the 73-year-old Congress leader, "his surrender application will not ipso facto be accepted".
Chidambaram is already in Tihar Jail in connection with the corruption case lodged by the CBI in the INX Media scam.
The CBI had registered an FIR on May 15, 2017, alleging irregularities in the Foreign Investment Promotion Board (FIPB) clearance granted to the INX Media group for receiving overseas funds of Rs 305 crore in 2007 during Chidambaram's tenure as the finance minister.
Thereafter, the Enforcement Directorate had lodged a money laundering case in this regard in 2017.
Special Judge Ajay Kumar Kuhar said the court cannot interfere in the decision of the ED, which has preferred not to arrest him at the moment and also there was no process issued against him by the court.
The court further said that it would be wrong to assume that since his anticipatory bail application has been rejected, there was no option but to arrest him forthwith.
"There was no dispute with the proposition that the investigation was the exclusive right of the investigating agency. The arrest of an accused was also part of investigation. The investigating agency has to decide when to arrest a person," the court said.
"It would be wrong to assume that if application for anticipatory bail has been rejected there was no option but to arrest the applicant forthwith. The position of law was settled that the investigation was the prerogative of the investigating agency. Thus, in the matter which are in the domain of the investigating agency exclusively, the interference from the court is to be avoided," it added.
The court said that in the money laundering case, Chidambaram has not been arrested nor has the court taken cognisance of any offence on any complaint or charge sheet.
"Neither a complaint nor the charge sheet was pending before this court. At this stage, when the investigating agency was not inclined to arrest the accused and there was no process issued against the accused by the court, the surrender by an accused in the court will not ipso facto be accepted by the court and he will be deemed to be in custody of the court."
"In the present case, the applicant has not been arrested nor this court has taken cognisance of any offence on any complaint or charge sheet. Therefore, the applicant cannot be remanded to custody," the court said.
It said Chidambaram had only moved an application to surrender and he was not taken into custody in the ED's money laundering case.
"There is not even a notional surrender because the court has not taken the applicant into custody in this case though he happens to be in custody in the other case by the CBI," the court said.
Solicitor General Tushar Mehta, appearing for ED, had earlier told the court that it was completing the investigation pertaining to some aspect of money laundering which needs to be addressed before an effective and meaningful custodial interrogation of Chidambaram can take place.
"Since September 6, 2019, six persons have been summoned for interrogation and three are under interrogation which was still going on. Only after the background investigation was completed, the interrogation of Chidambaram would be meaningful. Since he was in judicial custody, he was not in a position to tamper evidence or hamper the investigation," said Mehta, who was accompanied by advocate Nitesh Rana.
Mehta further said that the probe agency would seek Chidambaram's arrest at an appropriate time.
Mehta had said that there was no change in the "reason to believe" to arrest the accused from the time the probe agency went to arrest him and today.
The investigative agency cannot be directed to arrest the accused at any given particular point of time, he said.
Senior advocate Kapil Sibal, appearing for Chidambaram, said that though the ED was pressing earlier for his arrest, they are now saying it was not required at this stage.
Sibal had said that ED had come to the Congress leader's house to arrest him on August 20 and 21 but now they do not want to do so just to ensure that he remains in judicial custody.
He further claimed that the purpose behind the stand taken by the ED now was to harass the applicant and to prolong his incarceration one way or the other.
"The ground taken by the ED that they were interrogating some persons as of now is just a plank to avoid Chidambaram's arrest," he said.
On September 5, Chidambaram was remanded to 14-day judicial custody in the corruption case by the CBI till September 19.
On the same day, the court had issued notice to the ED on Chidambaram's plea seeking to surrender in the money laundering case lodged by the agency in which the Supreme Court had dismissed his plea against the August 20 order of the Delhi High Court denying him pre-arrest bail.