‘Why pick-and-choose policy?’: Judge asks ED why Jacqueline Fernandez was not arrested before filing chargesheet

Hearing the bail application of actor Jacqueline Fernandez in a Rs 200 crore money laundering case, a Delhi judge on Thursday warned the Enforcement Directorate (ED) not to implement a “pick-and-choose policy”, questioning why the agency did not arrest her and why it was using different yardsticks in this case.

Fernandez has been accused of enjoying the proceeds of a crime in which conman Sukesh Chandrashekhar had allegedly extorted Rs 200 crore from Aditi Singh, the wife of former Fortis Healthcare promoter Shivinder Singh.

Additional Sessions Judge Shailender Malik is expected to pronounce his order on Fernandez’s bail plea on Friday after both sides complete their arguments. The court is also expected to hear arguments on charges in this case on November 24.

Senior advocate Sidharth Aggarwal, on behalf of Fernandez, began his arguments by tackling the ED’s contention that she was a flight risk and had tried to flee the country in the past. Aggarwal told the court that Fernandez had appeared for questioning twice and was not named as an accused. He said that she had not been intimated that a lookout notice had been issued against her when she tried to travel abroad in 2021.

Subsequently, he said, when she wanted to visit her mother on two occasions, she wrote an email to the agency seeking permission to travel abroad only to be met with silence because of which she did not travel. Aggarwal also apprised the court of a subsequent court order that allowed her to travel for professional engagements.

Aggarwal pointed out that the supplementary chargesheet in the case had been filed without her arrest and asked if there was a need to alter the status now. The “prosecutor agency has me without any protection” and has the “freedom to ask me any question”, he told the court.

Special Public Prosecutor Shailesh N Pathak began his rebuttal to the bail plea by stating that Fernandez cannot take benefit of the provisions under the Prevention of Money Laundering Act, which gives relaxation in case the accused is a woman, by stating that “criminal jurisprudence is gender neutral”.

Pathak argued that there are other provisions that state that the economic offence in question must be less than Rs 1 crore.

The judge told the ED to show the criteria to support its arguments and asked why the agency did not arrest the accused and why it filed a chargesheet without her arrest but chose to oppose her bail now.

“Existence of power to arrest is one thing and exercise of the power to arrest is another thing,” Pathak told the court.

To this, the judge said, “You can’t have a pick-and-choose policy. Lookout notice (LOC) can still be kept open. Why are you putting different yardsticks? There can’t be a pick-and-choose policy. There must be some reason for not arresting.”

The SPP told the court that it was the “prerogative of the investigating officer to arrest”.  Pathak also told the court that the agency was investigating a money laundering case to the tune of Rs 200 crore and had so far attached Rs 7.1 crore in this case.

“She has enjoyed, used, and was in possession of a huge amount of Rs 7.15 crore. In my entire life (I have) not seen this amount…Once she is sound enough financially, she will influence witnesses, flee the country by hook or crook because she is financially sound,” Pathak argued.

Pathak also told the court that Fernandez did not cooperate with the investigation. “The accused was charge-sheeted without arrest is true but she has not cooperated with the investigation. When she was confronted with evidence, only then she revealed (further details),” the SPP said.

Wrapping up his arguments, Pathak told the court, “Despite knowing Sukesh she was so desperately involved and tempted by the financial strength of Sukesh and continued in those criminal activities and enjoyed the process of crime. We have attached Rs 7.1 crore. (There is) Every chance that we can attach more and more property.”

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