Supreme Court order to ED to furnish reasons in Arvind Kejriwal case applies prospectively: Delhi High Court

The Delhi High Court has held that the Supreme Court’s directions to the Enforcement Directorate (ED) to supply ‘reasons to believe’ to an arrested person apply prospectively [Manideep Mago v Union of India & Ors]..Justice Anup Jairam Bhambhani agreed with a co-ordinate bench of the High Court, stating that the requirement for furnishing ‘reasons to believe' is an additional requirement which arose, for the first time, when the Supreme Court pronounced its judgment in Kejriwal’s case. “This court would only observe that since what the Supreme Court articulated in Arvind Kejriwal was an additional requirement, and the Supreme Court was not interpreting an existing statutory requirement, such additional requirement could only be prospective in its operation as of the date that requirement was laid down by the Supreme Court,” the Bench said. .The Court also said that the enactment of the Foreign Exchange Management Act (FEMA), 1999 does not grant a person immunity from offences under the Indian Penal Code (IPC), even if the offences alleged arise from the same underlying actions or omissions that led to infractions of FEMA.Justice Bhambhani explained that an infraction under FEMA does not imply that any underlying acts and omissions leading to that infraction also stand decriminalised. “To be absolutely clear, the offences of criminal conspiracy, cheating, forgery and related offences of which the petitioners are accused under the IPC, do not get obliterated or subsumed or cease to be penal offences, merely because they were the underlying actions for the infractions of foreign exchange regulations. Pertinently, the penal offences were complete in themselves before the infraction of the provisions of FEMA took place.”The Court added that FEMA does not repeal the IPC, either expressly or by implication, and they both address different and distinct infractions of the law. .The Bench rendered these findings while rejecting the petitions filed by two accused, Manideep Mago and Sanjay Sethi, challenging their arrests by the ED and Delhi Police. They also sought the quashing of their remand. .After considering the case, the Court upheld their arrest by the ED. However, it quashed Delhi Police’s actions of arrest, noting that it was in violation of the Supreme Court’s judgement in the case of Prabir Purkayastha..Senior Advocate Vikram Chaudhri with Advocates Raktim Gogoi, Arveen Sekhon, Rishi Sehgal, Shivam Pal Sharma, Anuj Kumar and Ishaan Sahai appread for Manideep Mago. Sanjay Sethi was represented by Advocates Raktim Gogoi, Arveen Sekhon, Rishi Sehgal, Shivam Pal Sharma, Anuj Kumar and Ishaan Sahai. ED was represented through Special Counsel Zoheb Hossain, Panel Counsel Vivek Gurnani as well as Advocates Pranjal Tripathi and Kartik Sabharwal. Additional Standing Counsel (ASC) Amol Sinha along with Advocates Kshitiz Garg, Ashvini Kumar and Nitish Dhawan represented the Delhi Police. Central Government Standing Counsels (CGSCs) Dr B Ramaswamy and Amit Tiwari with advocates Hussain Taqvi, Ayush Tanwar and Ayushi Srivastava appeared for the Central government. .[Read Judgment]