Not filing charge sheets against officials without prior sanctions, says ED

The financial crimes probe agency had initially contested that it doesn’t require sanction in parallel probes.

The Enforcement Directorate (ED) has asked all its units across the country to take prior sanction under section 197 (1) of the Criminal Procedure Code (CrPC) before filing prosecution complaints (charge sheets) in money laundering cases, people familiar with the development said on Monday.

Representatonal image.

The decision comes in light of a Supreme Court ruling in November 2024, which stated that section 197 (1) -- the Central Bureau of Investigation (CBI) must mandatorily take prior sanction under this-- would be applicable in prevention of money laundering act (PMLA) cases as well.

“We have started a process to take prior sanction against public servants without prejudice in all PMLA cases. Necessary directions in this regard have been issued to all the units. In fact, for all future prosecution complaints (charge sheets), our investigating officers have already started writing to the concerned ministries/departments,” said a senior ED officer, who asked not to be named.

The people cited in the first instance added that ED has initiated the process for prior sanction in high profile probes including the INX Media case against former finance minister P Chidambaram and the land-for-jobs case involving former railway minister Lalu Prasad Yadav to avoid any legal issues during the trial.

After former Delhi chief minister Arvind Kejriwal challenged a trial court’s decision to take cognizance of ED’s charge sheet in the Delhi excise policy case without prior sanction, the federal agency last month took sanction from the Lt Governor V K Saxena and resubmitted it in the court.

A bench of justices Abhay S Oka and AG Masih ruled on November 6, 2024, that prior sanction is mandatory to prosecute public servants in money laundering cases. “The object of Section 197(1) must be considered here. The object is to protect the public servants from prosecutions. It ensures that the public servants are not prosecuted for anything they do in the discharge of their duties. This provision is for the protection of honest and sincere officers,” the SC said.

Section 197 (1) of CrPC says that when any person who is or was a judge or magistrate or a public servant not removable from his office save by or with the sanction of the Government, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction.

To be sure, 197 (1) CrPC has been replaced by 218 of Bharatiya Nagarik Suraksha Sanhita (BNSS) and has same provisions.

The financial crimes probe agency had initially contested that it doesn’t require sanction in parallel probes where a predicate agency (like CBI) has already got it.

However, after internal discussions, it has been decided that it will seek prior sanction in all relevant cases against public servants instead of waiting for courts to hold cognizance of charge sheets, said a second ED officer who too asked not to be named.

“Yes, it might delay the process for a while but there won’t be any legal setbacks later,” he added.

Out of 7,083 cases filed by ED under PMLA till July 31, 2024, over 5,000 have been registered in the last 10 years. Since 2020, the agency has taken up 800 to 1000 PMLA cases every year while this was average 150 to 190 cases a year before that.