ED an 'uncommon species', can't be allowed to 'brow beat' judges, AAP's Satyendar Jain tells Delhi HC

The AAP leader said institutions needed to be protected against the excesses of central agencies

Delhi Minister Satyendar Jain on Wednesday told the Delhi High Court the Enforcement Directorate (ED), which is an "uncommon species ruling the country", cannot be allowed to “brow beat” a judge and seek transfer of a money laundering case on the basis of a "bias" without any basis.

The AAP leader, while assailing a lower court order transferring the money laundering case against him from one special court to another following an application by the ED, said institutions needed to be protected and the judiciary should say such “tactics” are unacceptable.

Senior advocate Kapil Sibal, appearing for Jain, told the high court that not interfering with the ED's conduct will bring anarchy, and asserted that “bias suddenly dawned” on the agency after the special court judge did not agree at that stage to its request for constituting an independent board for Jain's medical examination.

“Your lordship will have to decide whether the (special court) judge is to be protected or the ED is to be protected. It is time for the judiciary to stand up and say these kinds of tactics cannot be accepted. You cannot allege bias against a judge,” the senior lawyer told Justice Yogesh Khanna.

The ED had sought transfer of the case to another special judge alleging "bias" against the one who was hearing it.

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Asserting that there was no reason to allege bias against the special judge who was hearing Jain's bail plea since August, Sibal added, “If ED says something it has to be accepted (otherwise) it is bias. Judge can't be browbeaten like this.”

The impact of the transfer will be that judges would think that "every time ED asks something and I don't give it, ED will seek transfer. It will have a chilling effect. Judges will be afraid to pass orders. It will bring anarchy if ED is allowed to do this,” he argued.

Jain has challenged before the high court the order passed on September 23 by Principal District and Sessions Judge Vinay Kumar Gupta transferring the case to Special Judge Vikas Dhull from Special Judge Geetanjali Goel who was hearing his bail plea.

Additional Solicitor General SV Raju, appearing for ED, argued the district court order warrants no interference as in spite of “sufficiently demonstrating” that the jail officials as well as doctors of LNJP were “managed” and were assisting the minister in “feigning” sickness for the purpose of interim bail, the special judge “looked the other way”.

He, however, clarified the agency was not casting any aspersions on the judge as it was “nobody's case that bias has been proved”.

“We demonstrated live to (special) court (that Jain was feigning sickness), yet the court was not alive to the situation. Instead of allowing evaluation (by an independent hospital), the (special) judge allowed him to not travel,” said the ASG, as he contended that “high dignitaries and politicians take advantage of their clout".

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Asserting the transfer was sought after a “cumulative assessment”, he said, justice should not only be done but also seen to have been done.

Justice Khanna said he will list the case for consideration next on October 1 in case any further clarification is needed; else, he will pronounce the verdict on Jain's challenge.

Senior advocate Rahul Mehra, also appearing for Jain, contended there was no occasion to cast aspersions on the judge when the allegations of manipulation were in relation to the jail and LNJP staff, and insisted cost should be imposed on ED for “worst kind of forum shopping".

“We have to protect our institutions and ED cannot be allowed to pick and choose… Even Ajmal Kasab got a fair trial. Surely, I am not worse than that,” he said.

Sibal told the court there has never been any order by the special judge favouring Jain, and added there has to be substantiated evidence of a genuine apprehension of bias for seeking a transfer.

He said nothing was done outside the scope of jail rules and, if ED had any concerns, it should have raised them earlier.

“Eureka had dawned upon them and they did not want the judge to kill the matter any further… Judge is not vicariously liable for my conduct. There is no reason to allege bias against the judge,” Sibal said.

"ED is not common man. It is an uncommon species ruling the country," he remarked.

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Jain's counsel argued it was the district judge who had marked the matter to Goel and, when he found that the special judge was an upright officer, there was no reason to transfer the case.

The district court had allowed ED's plea for transfer of the case on the basis of apprehension of a "probable bias".

"In my considered opinion, the judge is a very upright officer. However, all the circumstances taken together are sufficient to raise a reasonable apprehension in the mind of the petitioner as a common man, not of any actual bias, but a probable bias," the district court had stated while transferring the case.

The ED had arrested Jain and two others in the money laundering case based on a Central Bureau of Investigation (CBI) FIR lodged against the AAP leader in 2017 under the Prevention of Corruption Act.

Jain, currently in judicial custody, is accused of having laundered money through four companies linked to him.