DELHI COURT WARNS AGAINST MISUSE OF CBI AND ED PROBES IN ELECTION SPENDING CASES:

A Delhi court on Friday held that investigations by central agencies such as the Central Bureau of Investigation and the Enforcement Directorate should not be permitted to intrude into the political domain solely on allegations of excessive or illegal election spending by political parties. The court cautioned that allowing investigative agencies to act on such allegations alone would risk criminalising electoral competition and equipping the executive with coercive powers capable of shaping political outcomes, thereby undermining the constitutional guarantee of free and fair elections.

The observations were made by Special Judge Jitendra Singh of the Rouse Avenue Courts while discharging Arvind Kejriwal, Manish Sisodia, K Kavitha, and 20 others in the corruption case arising from the alleged liquor policy scam. The court examined the supplementary chargesheets filed by Central Bureau of Investigation, which alleged that a substantial portion of the purported illegal gratification was diverted for election-related expenditure by the Aam Aadmi Party.

According to the prosecution, out of an alleged amount of ₹90–100 crore, approximately ₹44.54 crore was utilised for the party’s Goa Assembly election campaign in 2022. It was claimed that the funds were transferred from Delhi to Goa through hawala or angadiya operators in multiple tranches, using various conduits and cash handlers. The CBI further alleged that Durgesh Pathak, who was in charge of the party’s Goa campaign, exercised supervisory and coordinating control over the election activities during the relevant period.

After closely scrutinising the material on record, the court held that even if the prosecution’s allegations were assumed to be entirely correct, they did not, by themselves, disclose any violation of the election law framework. The court clarified that there is no statutory prohibition on a political party funding or meeting the campaign expenses of its candidates, and such funding does not automatically attract criminal liability. It emphasised that the prosecution had failed to place any concrete material to demonstrate that Pathak provided cash, arranged cash payments, directed such payments, or acted as a conduit for the alleged funds.

The court strongly criticised the attempt to implicate Pathak based solely on his political position and organisational role, noting that criminal liability cannot be imposed on the basis of conjecture, association, or supervisory responsibility. It reiterated that compelling an individual to undergo criminal prosecution without evidence of knowledge, participation, or involvement in a criminal conspiracy is contrary to settled principles of criminal jurisprudence, where the legal process itself cannot be used as a form of punishment.

The judge further underscored that criminal law cannot be deployed as a substitute for remedies available under election law, nor can it be used to convert political accusations into prosecutable offences unless a clear, independent, and cognisable criminal offence distinct from election law violations is prima facie established. On this basis, the court held that investigations by the State police, the CBI, or the Enforcement Directorate cannot be initiated or sustained solely on allegations of election funding irregularities or excess expenditure.

The court also addressed the application of the Prevention of Money Laundering Act, 2002, holding that allegations of excess election spending, cash usage, or undeclared campaign expenditure do not, by themselves, constitute scheduled offences under the Act. It observed that claims of hawala or cash transactions, without independent and legally admissible evidence establishing both the illegality of the source and its nexus with a defined offence, are insufficient to sustain prosecution under the PMLA.

Finally, the court reaffirmed that matters relating to election expenditure fall within the constitutional domain of the Election Commission of India and election courts. Permitting investigative agencies, which are part of the executive, to independently assume jurisdiction over such issues would amount to an impermissible inversion of the constitutional hierarchy, reducing the Election Commission’s role in an area where it is intended to be supreme.