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2019 (4) TMI 2031 - HC - Money LaunderingSeeking direction to first respondent, not to cause any physical, mental or verbal harassment to the petitioner during the pendency of investigation in the proceedings - also direction is sought against the first respondent to re-record the statement to be tendered under Section 50 of the Prevention of Money Laundering Act and conduct the proceedings in camera and in the presence of an advocate appointed by the petitioner - Whether the presence of a lawyer is required at the time of enquiry, as sought for by this petitioner? - HELD THAT:- Section 50 make it clear that powers are conferred on the authorities to summon persons whose attendance is necessary to give evidence or produce any record during the course of investigation or proceedings and such persons, so summoned have to appear before the Officer and to state the truth of the subject of the summons. Such authority is also empowered to impound records. Therefore, there is no quarrel about the competency and power conferred on such authority to summon a person and enquire. Sub-Section 4 of Section 50 specifically indicates that every proceedings under Sub-Sections 2 and 3 shall be deemed to be a judicial proceedings within the meaning of Section 193 and section 228 of the Indian Penal Code. Therefore, it is apparent that summoning a person and enquiring him under section 50 of the said Act is in the nature of a judicial proceedings, within the meaning of Section 193 and Section 228 of the Indian Penal Code - it is apparent that the proceedings under Sub-Sections 2 and 3 of Section 50 of the said Act is a judicial proceedings before the Court of justice, though such proceedings is not taking place before the Court of Justice. The respondents have categorically admitted in the counter that the persons who were summoned under Section 50 of the said Act is only for the purpose of collecting evidence and to know the complicity of the persons so summoned to the crime and that, only after collecting evidence and statements from the persons so summoned and if it is established after completion of investigation that the person is involved in the crime of Money Laundering, he will be treated as an accused and prosecution complaint will be filed against him. Therefore, there is no dispute to the fact that at the time of making an enquiry under Sections 50(2) and 50(3) of the said Act, the persons so summoned, unless are found to have been involved in the crime of Money Laundering, cannot be treated as an accused at the stage of enquiry itself. Further, it is to be noted that Section 30 of Advocates Act, 1961, which deals with right of Advocate to practise, specifically entitles every Advocate whose name is entered in the State roll, as of right to practise, including before any person legally authorised to take evidence. When such being the right conferred on the Advocate, the respondents cannot curtail such right, if the petitioner seeks such assistance. But at the same time, it should also be borne in mind that presence of such lawyer should not be a hindrance to the enquiry either by his interference with queries or by his prompting the person, who is being examined, to say this way or that way. If that is permitted then it would defeat the very object and purpose of enquiry. The petitioner must be permitted to have his choice of lawyer to be present along with him at the time of interrogation/enquiry, however, by making it clear that such lawyer should sit within a visible distance but beyond hearing distance. Whether the statement already recorded from the petitioner's have to be eschewed and consequently, whether the first respondent should be directed to re-record the statement from the petitioner in the presence of an Advocate? - HELD THAT:- When retraction has already taken place, the law will have to take its own course to decide about the veracity of the statement already obtained from the petitioner and the effect of such retraction, at the appropriate time, during the proceedings. However, if the petitioner needs to appear for any further enquiry, in view of the facts and circumstances and the findings rendered by this Court, the first respondent shall permit the lawyer to be present with the petitioner at the time of interrogation, however, making it clear that such lawyer should be made to sit at visible distance at the back of the petitioner but beyond hearing distance from the place of interrogation. In other words, the seating arrangement of the petitioner and his lawyer should be made in such a way that both should not have eye contact with each other. Petition disposed off.
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