TMI Blog2019 (4) TMI 2031X X X X Extracts X X X X X X X X Extracts X X X X ..... ummon 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 complain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her. Petition disposed off. - W.P. Nos. 33158, 33163 of 2018, W.M.P. Nos. 38470 and 38480 of 2018 - - - Dated:- 4-4-2019 - K. Ravichandrabaabu, J. For Appellant: V.C. Janardhanan For Respondents: Hema, Special Public Prosecutor ORDER K. Ravichandrabaabu, J. 1. W.P. No. 33158/2018 is filed for a Mandamus directing the first respondent, not to cause any physical, mental or verbal harassment to the petitioner during the pendency of investigation in the proceedings in File No. ECIR/CEZO/05/2016. 2. W.P. No. 33163/2018 is filed for a Mandamus directing 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 File No. ECIR/CEZO/05/2016 in camera and in presence of the Advocate appointed by the petitioner. 3. The petitioner in both the writ petitions is one and the same. 4. The case of the petitioner in both the writ petitions is as follows: He is the Director in M/s. Best Crompton Engineering Projects Limited, engaged in the business of Engineering, procurement, construction and trading. The Central Bureau of Investigation, Bangalore, registere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct the statement which was obtained from him on 19.11.2018. The act of the first respondent is expressly illegal and unconstitutional. The facts enunciated above would reveal that the first respondent was not only biased but also detriment in making false case so as to secure the convention as per their desire for the reasons best known to them. The act of the first respondent in torturing the petitioner and causing mental treatment is grossly in violation of Article 21 of the Constitution of India and the Prevention of Money Laundering Act. The statement made by the petitioner on 19.11.2018, on threat and duress, cannot be used against him in any other proceedings. Therefore, the present writ petitions are filed with the reliefs as stated supra. 5. A counter affidavit is filed by the respondents wherein it is stated as follows: i) Criminal cases in RC No. 4(E)/2016/CBI/BS FC/BLR dated 01.02.2016, RC No. 04/2017/CBI/BS FC/BLR dated 03.02.2017 and RC No. 14/2018/CBI/BS FC/BLR dated 16.07.2018 were registered by CBI, BS FC, Bangalore, under Section 120-B r/w 420, 468 471 of IPC against Shri Kalyan Srinivasa Rao, Managing Director, M/s. Best Crompton Engineering Projects L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his voluntary statement on the same day before the respondent No. 1 herein. iv) In furtherance to the search conducted on 08.10.2018, in the residential premises of the petitioner, the petitioner was summoned to appear before the Respondent No. 1 herein on 16.11.2018, but upon considering the petitioner's request, he was asked to appear on 19.11.2018 as per his convenience. The petitioner herein had appeared on 19.11.2018 and during his appearance he had given a voluntary statement in his own handwriting, after understanding the provisions of Section50 of the PMLA, 2002. In his statement dated 19.11.2018 he had explained about his functions as Director in BCEPL in a detailed manner. On perusal of documentary evidences collected during the searches, the petitioner herein had explained about their relevance. The petitioner herein had written the said statement in his own handwriting and specifically stated that it was rendered on voluntary basis without any threat, force or coercion under the provisions of Section 50 (2) (3) of PMLA, 2002. The petitioner has been issued with Summons under Section 50(2) (3) of PMLA, 2002 only on the basis of materials available on records, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion of Money Laundering Act, 2002 shall be deemed to be a judicial proceeding within the meaning of Section 193 and Section 228 of the Indian Penal Code, 1860. 6. Learned counsel for the petitioner contended as follows: Under the guise of enquiry, the Investigating Officer cannot harass the petitioner physically, mentally and verbally. The power to investigate does not mean power to harass. Even at the stage of enquiry, the petitioner cannot be treated as an accused and inflicted with physical and mental harassment, that too, for the purpose of extracting statement against his will. Fundamental rights provided under Articles 20 and 22 of the Constitution of India to the petitioner as a citizen of this country, cannot be thwarted under the guise of enquiry. The proceedings under section 50 of the provision of Money Laundering Act, 2002 is deemed to be a judicial proceedings within the meaning of Sections 193 and 223 of the Indian Penal Code as found under sub clause 4 of Section 50 itself. Therefore, such judicial proceedings cannot be conducted without the assistance/presence of a lawyer on the side of the petitioner. Explanation 2 to Section 193 of Indian Penal Code contem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssistant Director) ii) MANU/AP/0339/2014 (Kolakalapudi Brahma Reddy v. Union of India Ors) iii) W.P.(Crl.)856/2016 Crl.M.A. Nos. 4702, 4704, 10527, 12181/2016) Virbhadra Singh anr. Vs. Enforcement Directorate anr.) iv) The order made in W.A. No. 1168 and 1169/2018 by this Court dated 10.07.2018. c) In support of her submission that the counsel cannot be accompanied with the noticee during summon proceedings, the learned counsel relied on the following two decisions: i) MANU/TN/0458/2010 (E. Giribabu vs. Deputy Director of Enforcement) ii) Crl.O.P. No. 30066/2011 dt. 01.08.2013 (Haji Ali Vs. Deputy Director, Directorate Enforcement) 9. Heard the learned counsel for the petitioner and the learned counsel appearing for the respondents. I have given my careful consideration to the facts and circumstances of the case and the submissions made by both sides in support of their respective case. 10. Both these writ petitions are filed for Mandamus. In the first Writ Petition, a direction is sought for to the first respondent, not to cause any physical, mental and verbal harassment to the petitioner during the pendency of investigation. In the second Writ Peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the said Act reads as follows: 50. Powers of authorities regarding summons, production of documents and to give evidence, etc- (1) The Director shall, for the purposes of section 13, have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:- (a) discovery and inspection; (b) enforcing the attendance of any person, including any officer of a reporting entity and examining him on oath; (c) compelling the production of records; (d) receiving evidence on affidavits; (e) issuing commissions for examination of witnesses and documents; and (f) any other matter which may be prescribed. (2) The Director, Additional Director, Joint Director, Deputy Director or Assistant Director shall have power to summon any person whose attendance he considers necessary whether to give evidence or to produce any records during the course of any investigation or proceeding under this Act. (3) All the persons so summoned shall be bound to attend in person or through authorised agents, as such officer may direct, and shall be bound to state the truth upon any subject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree years, and shall also be liable to fine. Explanation 1: A trial before a Court-martial is a judicial proceeding. Explanation 2: An investigation directed by law preliminary to a proceeding before a Court of Justice, is a stage of a judicial proceeding, though that investigation may not take place before a Court of Justice. 16. Perusal of Explanation 2 to Section 193 IPC would clearly indicate that an investigation directed by law is a stage of judicial proceedings before a Court of Justice though that investigation may not take place before the Court of Justice. In other words, as per Explanation 2, it is to be presumed that such investigation is taking place before the Court of Justice. Consequently, 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. 17. 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30 of the Act deals with the rights of Advocates to practise and the same is as follows- Subject to the provisions of this Act, every Advocate whose name is entered in the State roll shall be entitled as of right to practise throughout the territories to which the Act extends- (i) in all Courts including the Supreme Court; (ii) before any tribunal or person legally authorised to take evidence; and (iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise. As per the above section, an investigating officer, being a person not authorised to take evidence, is not a forum before which an advocate has got a right of audience. Learned counsel for the petitioners submits that it is customary on the part of advocates to present bail applications, etc., on behalf of the accused and the right of advocate to appear before the police officers had become recognised. Whatever may be the practice, under the Advocates Act, an advocate is not entitled to any right of audience before any forum other than those set out in S. 30. The Supreme Court in Nandini Satpathi's case, MANU/SC/0139/1978 : AIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in certain cases. The real applicable Article in the present case is Article 21. As per Article 21 no person shall be deprived of his life or personal liberty except according to procedure established by law. This is not an idle formality. If such Article is read alongwith Article 19(1)(g) which is made for the right of the citizens in any profession, or to carry on any occupation, trade or business, the true import will come court. Therefore, the basic feature of the Constitution cannot be ignore or flunged away from the river of protection. The Supreme Court judgment is categorical in respect of Article 22 about consultation with a legal practitioner. Whether legal practitioner can or cannot be present as an Observer was the prime question at the time of enquiry or investigation. However, the judgment is anterior to the Act come into force. Such Act gives protection of 'human rights' reiterating the right protected under Article 21 of the Constitution of India and on the basis of the International conventions. Therefore presently a test under such Act is required to be made if at all any complaints are made. ...................... ...................... 19. Accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, the law relating to accused in a custody has to be expressly or impliedly, applicable. If accused can get all benefits under Article 21 of the Constitution a person in such informal custody can say that he is also entitled to get relief under Article 21 of the Constitution of India. It cannot be said that the authority will behave in violation of Article 21 without declaring one as accused and Court will give premium to such illegality. This is not true interpretation of the ratio of the judgment reported in MANU/SC/0339/1992 : 1992 Cri LJ 2761 (supra). 20. Now a days, custodial violence is not unknown to the people and Court cannot refrain from taking any Judicial notice. If such violation exceeds the personal right and liberty as given under Article 21 of the Constitution of India, the writ Court is justifiable entertain, the writ petition and pass an appropriate order. It is significant to note that custodial violence is not an ordinary violence even if one has been taken in the custody as against any criminal charges. The declaration has to be made whether the person concerned is formally accused or not. It is not be misused for extracting statements by force. It is, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d before commencing or continuing with the questioning. We think that Article 20(3) and Article 22(1) may, in a way, be telescoped by making prudent for the police to permit the advocate of the accused, if there be one, to be present at the time he is examined. Overreaching Article 20(3) and section 161(2) will be obviated by this requirement. We do not lay down that the police must secure the services of a lawyer. That will lead to police-station-lawyer system, an abuse which breeds other vices. But all that we mean is that if an accused person expresses the wish to have his lawyer by his side when his examination goes on, this facility shall not be denied, without being exposed to the serious reproof that involuntary self-crimination secured in secrecy and by coercing the will was the project. 64. Not that a lawyer's presence is a panacea for all problems of involuntary self-incrimination, for he cannot supply answers or whisper hints or otherwise interfere with the course of questioning except to intercept where intimidatory tactics are tried, caution his client where incrimination is attempted and insist on questions and answers being noted where objections are not other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... njab National Bank (supra), to hold that when the consequences of an enquiry or investigation are severe and drastic, the right of a person to be accompanied or represented by an advocate cannot be extinguished, stands to reason and cannot be faulted with. 23. At the same time, this Court is alive to the concerns raised by the CCI that if parties are allowed to be accompanied or represented by advocates in investigations before the DG, the efficacy of the investigation may be hampered and the collection of evidence may become onerous or cumbersome. The concern of CCI, furthermore that during the course of investigation and recording of evidence of a witness, the active participation of a counsel may not be conducive to the larger public interest in promoting competition, because the likelihood of a counsel cautioning (either orally, or through non verbal communication) a witness from making or refraining from making a statement. In that regard, the Commission or the DG, as the case may be, lay prescribe, in the order, during the course of proceeding, when a request for representation by counsel is made, an appropriate procedure to be followed during such investigation, where the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctise, 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. However, the object of permitting the lawyer to be present at the time of enquiry is to see that such enquiry is conducted without giving any room for complaint as if the statement was obtained from the person so summoned under threat or coercion or harassment or physical torture. 23. Therefore, I am of the view that 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 distan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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