Prolonged Delay in Arrest Does Not Negate ED’s Right to Seek Custodial Interrogation: Delhi HC [Read Order]

The Delhi High Court recently ruled that a prolonged period during which the Enforcement Directorate (ED) chooses not to arrest an accused cannot be construed as a waiver of its statutory right to seek custodial interrogation.

The observation was made by the High Court while hearing anticipatory bail applications filed by Bhaskar Yadav and Ashok Kumar Sharma, arising out of a prosecution complaint filed by the ED.

Two FIRs were registered by the Central Bureau of Investigation (CBI), alleging offences of cheating, criminal conspiracy and technology-enabled fraud. As per the prosecution complaint, the petitioners were alleged to be key members in a large-scale operation run to dupe innocent citizens in the name of investment opportunities and part-time employment, resulting in siphoning of substantial public money.

The ED investigation led to the recovery of Indian and foreign currency from some accused persons, while others were stated to be absconding at the time of filing of the prosecution complaint. Summons were also issued to several individuals under Section 50 of the PMLA, including the present applicants.

The petitioners further stated that from January 2025 till 15.10.2025, despite there being no interim protection from arrest, ED opted not to arrest either of the accused persons, and argued that no useful purpose would be served by denying anticipatory bail at this stage.

Opposing the bail pleas, Vivek Gurnani appearing for the Enforcement Directorate stated that the applicants were actively involved in the alleged laundering of proceeds of crime and that custodial interrogation was required to meet the ends of the investigation.

Justice Girish Kathpalia, that during the initial stages because the department opted not to arrest the accused during the initial stages of investigation it does not mean that the need now expressed by the ED to conduct custodial interrogation is unjustified.

In light of the new evidence and facts, the circumstances have changed; further it was clarified that cannot be said that the accused is entitled to anticipatory bail. Whether or not to arrest, is in the exclusive domain of the investigator.

Observing the lack of reasonable grounds to believe that the petitioners were not guilty of the offence alleged, or whether the petitioners were unlikely to commit any offence while on bail, the Delhi High Court, the Delhi High Court dismissed both anticipatory bail applications.

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