SC extends Karti’s relief from arrest till 26 March

The Supreme Court on Thursday extended the interim relief from arrest granted by the Delhi High Court to Karti Chidambaram in the INX Media money laundering case till 26 March and said it would clear the "confusion" which has crept in due to divergent views of different high courts on the Enforcement Directorate’s power of arrest.

The apex court also transferred to itself the matters pending before the Delhi High Court relating to the power of the ED to make arrests in money laundering cases and also a plea filed by Karti seeking protection from arrest in ED's case.

A bench comprising Chief Justice Dipak Misra and justices A M Khanwilkar and D Y Chandrachud said it would hear the matter on March 26 and the top court would answer questions regarding the interpretation of Section 19 of the Prevention of Money Laundering Act (PMLA) relating to ED's power to arrest and also deal with the issue whether high courts can grant protection from arrest in a plea under Article 226 of the Constitution, which deals with high court's power to issue writs and orders.

The top court's order in the INX media case came hours after the high court extended Karti Chidambaram's protection from arrest in the ED case from 20 to 22 March.

Karti Chidambaram is in custody in connection with the INX Media corruption case lodged by the Central Bureau of Investigation.

"There is some kind of confusion in the high courts. The Delhi High Court has referred it (issue pertaining to ED's power to arrest) to its larger bench but it will not be binding for other courts," the bench, which also comprised Justices A M Khanwilkar and D Y Chandrachud, said.

The court made this observation after Additional Solicitor General Tushar Mehta, appearing for the Centre, referred to the orders passed by different high courts, including Delhi and Bombay, on the issue.

When the apex court was informed that the Delhi High Court has extended till 22 March the interim protection from arrest to Karti in the money laundering case, the bench said it would transfer to itself the matters pending there and hear the arguments on them on 26 March.

"We are directing so (transfer of pleas pending in high court), as there are conflicting views of various high courts. Registry is directed to intimate the registry of the High Court of Delhi to call for the papers of the above mentioned case(s)...," it said.

"The interim relief granted by the High Court in writ petition (criminal) number 739 of 2018 (filed by Karti) shall remain in force till the next date of hearing, that is 26 March," the bench said.

In his plea before the high court, Karti has questioned ED's power of arrest under section 19 of the PMLA, besides seeking quashing of the enforcement case information report (ECIR) and the probe being carried out by the agency.

He has also sought striking down the presumption codified in Section 24 of the PMLA which says that when a person is accused of having committed an offence under Section 3 (money laundering), the burden of proving that proceeds of the crime are untainted property shall be on the accused.

During the hearing before the top court, Mehta referred to sequence of events in these matters including the issues pending before the high court, and said the high court had on 9 March granted relief to Karti in ED's case while hearing his plea under Article 226.

He said that on 19 February, a division bench of the high court had made a reference to a larger bench on questions pertaining to arrest by ED, the need to supply the grounds of arrest to an accused and whether the offence was cognisable or non-cognisable under section 45 of the PMLA.

"There are over 1000 plus cases where we (ED) have reached the stage of Section 19 throughout the country," Mehta said, adding "my difficulty is that even if the larger bench of the Delhi High Court gives a finding, it will not bind other courts. So this court has to give a finding on it, otherwise people will come to Delhi High Court only.

"All will rush to the Delhi High Court for ad-interim protection and we will not be able to do anything," he told the bench and referred to cases like the Punjab National Bank fraud and the Kingfisher Airlines case.

"Are we not even entitled to investigate," he asked.

Senior advocate Kapil Sibal, appearing for Karti, told the bench that they have filed a plea before the high court saying there was neither an FIR, nor a complainant in ED's case.

He said the top court had on 8 March asked Karti, who is in judicial custody till 24 March in the CBI's case, to approach the high court for relief after which they had filed the plea in the high court.

The bench, after hearing the submissions, said it would not go into the merits but interpret the provision related to ED's power to arrest under PMLA and deal with the issue whether high courts could grant such relief under Article 226.

A First Information Report filed by the CBI on 15 May last year had alleged irregularities in the Foreign Investment Promotion Board (FIPB) clearance to INX Media for receiving Rs305 crore in overseas funds in 2007 when P Chidambaram was Union finance minister.