SUMAN K SHRIVASTAVA
Ranchi, Jan. 18: The Supreme Court’s order on December 16 on the ED role in probing the Barharwa toll plaza scam involving Rural Development Minister Alamgir Alam and Chief Minister Hemant Soren’s MLA representative Pankaj Mishra was a mixed bag for the Jharkhand government. On the one hand, it stayed the Jharkhand high court’s December 6 order by which the ED was directed to be added as a party in a case filed by Shambhu Nandan Kumar in the Jharkhand high court, it dismissed the petition filed to stop summons to DSP Pramod Kumar and other state officials, on the other.
Upbeat, the ED has issued summons to the Sahibganj DC and is preparing fresh summons to DSP Pramod Mishra, while the Jharkhand Government is preparing to challenge the ED action now in the Jharkhand high court.
Kumar had filed the case in 2020 for a CBI probe challenging the Sahibganj police clean chit to Alam and Mishra. He alleged that on 21.06.2020 both Alam and Mishra threatened him not to participate in the tender process floated for the allotment of collection of rent/toll.
Q: What was the Jharkhand High Court order on December 6 2022?
A: The court said that the ED was a necessary party to be heard in this petition and directed the petitioner to add it as a party in the case.
The ED was directed on December 6 to make one of the respondents in the writ petition only to know what has come in the investigation of the ED, and was called upon to file the counter affidavit.
It is made clear that this Court has not directed to take over the investigation by the ED, as the ED has already taken of the investigation and to know the correctness of the prayer in the writ petition, the ED has also been called upon to file the counter affidavit, pursuant to that, a counter affidavit has been filed on behalf of the ED. In view of the ED affidavit, prima facie, it appears that the investigation of the case in hand has not been done in the right direction and with clean hands.
The court also stayed the trial in connection with Barharwa PS case no. 85 of 2020.
Q: What were the Jharkhand government pleas in the Supreme Court?
A: There were two petitions. First, the State challenged the ED summons to then Barharwa DSP Pramod Kumar Mishra in the toll plaza scandal, saying the ED has no jurisdiction to summon the State police officials in a criminal case.
Second, the Jharkhand Government challenged the high court order issued on December 6 2022 by which it had instructed to add the ED as a party in the case filed by Shambhu Nandan Kumar.
Q: What did the Supreme Court say?
A: On the question of jurisdiction of the ED to grill the State police officers, the Supreme Court dismissed it as not entertained and left it open for the government to approach the high court. The Apex court did not comment on the merit of the case.
On the question of the ED being added as a party in the case, the court stayed the December 6 order and issued notice to it and others to file a reply. The tentative date for the next hearing is March 3.
Q: What is the implication of the SC order for the ED?
(a) Says Additional Solicitor General Anil Kumar:
- There is a stay on the ED to be impleaded as a party in the case in the high court. Since the ED was already probing it for money laundering, it is free to continue its probe. The ED is also free to summon the State officers and whoever it believes will help its probe.
- The petitioner (Shambhu Namdan Kumar) can still argue in the case before the high court on January 24 saying that he should be heard for a CBI enquiry keeping aside the ED findings.
- However, it depends on the high court to proceed or not keeping in view the pendency of the case related to it in the Supreme Court.
- The high court had also stayed the trial in the Barharwa toll case. There is another order subsequent to December 6 on December 22 by which the court had said that the interim order, granted earlier, shall remain in force till the next date of listing. I don’t know the issues challenged by govt in the Supreme Court or if it is just the December 6 order. So, I can’t comment on whether the stay on the trial continues or not.
Q: What next for the Jharkhand Government?
Says Advocate General Rajiv Ranjan:
The state government will move the Jharkhand high court challenging the ED notices to DSP Pramod Mishra as well as DC Ram Niwas Yadav. The ED has no locus standing to probe a criminal case and should limit its probe to money laundering. Since the Apex court has asked us to move the high court, the ED should not show its urgency and wait till the issue is adjudicated. Since, the case has arisen out of the FIR lodged by Shambhu Nandan Kumar, the ED should not interfere in it.
Q: What will the toll plaza petitioner do?
Petitioner’s lawyer Abhay Mishra says:
A: I will plead the high court to hear my case keeping aside the issue of adding the ED as a party respondent in the case. My plea was for a probe by an independent agency. If the police papers say that the investigation by the police was malafide, a probe by the CBI is the only way out.
Q: What did ED say in its affidavit filed in high court?
A: The ED, in its counter affidavit, disclosed that I.O. of Barharwa P.S. Case No. 85 of 2020, Md. Sarfuddin was summoned for providing the evidence collected by the police under the PML Act, 2002 on 05.12.2022. Md. Sarfuddin appeared and informed that he was directed by the then DSP, Sahibganj, Pramod Kumar Mishra not to do investigation against the above two persons namely Pankaj Mishra and Md. Alamgir Alam. He was also directed not to collect and examine the digital evidence including the call records of the accused persons in FIR No. 85 of 2020. He has further disclosed before the ED that the said DSP Pramod Kumar Mishra had instructed him only to conduct investigation against the other accused persons. He has also stated that it was beyond his capacity to investigate/interrogate such influential persons. It has further been disclosed that Pramod Kumar Mishra, the then DSP was called upon by the ED by way of summon, but he did not appear. It has further been stated that even the office of the DGP, Jharkhand has directed the said Pramod Kumar Mishra, the then DSP to appear before the ED, but he has not appeared.
The influence of Pankaj Mishra has been disclosed at length in the counter affidavit how he has talked with the higher officials of the State, even the Divisional Commissioner of Dumka, Jharkhand has not been spared by him. The conversation of Pramod Kumar Mishra, the then DSP and Pankaj Mishra has also been investigated by the ED and it has been disclosed that nearly 275 calls between period 01.01.2021 to 07.06.2022 have taken place.