HC Stays Order Allowing Lawyer’s Presence During Satyendar Jain's Questioning

The ED had challenged the trial court's order allowing the presence of a lawyer, during Jain's interrogation.

Delhi's Health Minister, Jain, was arrested on 30 May.

(Photo: Chetan Bhakuni/The Quint)

The Delhi High Court has stayed a trial court order allowing the presence of a lawyer at a visible but not audible distance during the interrogation of Delhi Minister Satyendar Jain, arrested by the Enforcement Directorate in a money laundering case.

Justice Yogesh Khanna observed that when there is credible material to indicate the real and live apprehension of a possible threat or coercion being employed at the time of recording of statement, such a direction may be passed but since there is no apprehension raised in the present matter, the direction ought not to have been given as a matter of right.

Election Directorate's Plea

The judge, who had on June 3 reserved its order on the Enforcement Directorate's plea challenging the direction, further noted that since there is neither any FIR nor a complaint against the AAP leader, he cannot as a matter of right claim to have the presence of his lawyers during the course of recording of his statement.

Even otherwise recording of the statement is videographed and audiographed which would dispel the apprehension of any coercion and threat, the court added.

The stay order was passed on a plea by the ED challenging the trial court's May 31 order allowing the presence of a lawyer, at a distance, during Jain's interrogation in its custody from May 31 till June 9.

"In view of the above since there is neither any FIR nor a complaint against the respondent (Jain) thus he cannot as a matter of right claim to have the presence of his lawyers during the course of recording of his statement... Even otherwise, admittedly, his entire recording of statement is videographed and audiographed which certainly would dispel the apprehension of any coercion, threat to the respondent," noted the court in its order released on Saturday.

"If a litigant in a particular case is able to produce credible material to indicate the real and live apprehension of a possible threat, coercion being employed, while recording his statement, this court can always permit at visible, but not an audible range during the course of recording of the statement but since there is no apprehension raised in the present matter, hence as a matter of right such direction ought not to have been given in the recording of statement. Thus, the impugned direction in para No.26 of order dated 31.05.2022 stands stayed," said the court which listed the matter for further hearing on August 24.

Case Background

Jain was arrested on May 30 under the provisions of the Prevention of Money Laundering Act (PMLA) and the trial court on May 31 remanded him to the ED's custody till June 9.

While remanding Jain to the ED's custody, the trial court had allowed his plea that during the time of enquiry/investigation of the accused, one advocate of the accused shall be allowed to remain present at a safe distance where he can see the accused but not hear him.

The ED had assailed the order before the high court on the ground that it was contrary to various decisions of the Supreme Court and the law.

Lawyers representing Jain had opposed the agency's plea and said it was an “extraordinary case” as the prosecution has filed the petition despite the law being against them.

It was argued that the Supreme Court has consistently allowed a system where the lawyer is available at a distance but prosecution was terming them mere orders.

Before the trial court, the investigating agency had submitted that there was a chequered layer of money and it was trying to find out if somebody else's money was being laundered and whether there were other potential beneficiaries.

“The money has not stopped at Rs 4.81 crore. It is beyond. Some facts we don't have, but the accused is aware,” Solicitor General Tushar Mehta had said, adding that the likelihood of tampering with evidence could not be ruled out till the agency ascertained the real trail.

Jain's counsel had opposed the ED application, saying the case dated back to 2015 and that the entire allegation was the reproduction of the charge sheet, and that he had already been summoned five-six times for interrogation by the agency.

He had said there was no requirement for custodial interrogation in the case.

The agency had earlier provisionally attached assets worth Rs 4.81 crore of Jain's family and companies "beneficially owned and controlled" by him as part of a money-laundering probe against him.