TMI Blog2022 (3) TMI 807X X X X Extracts X X X X X X X X Extracts X X X X ..... MLA in its totality and the said provisions are allowed to operate in their full force on their own. The Hon'ble Supreme Court in ASHOK MUNILAL JAIN AND ANR. VERSUS ASSISTANT DIRECTOR, DIRECTORATE OF ENFORCEMENT [ 2017 (3) TMI 1642 - SUPREME COURT] was faced with the situation wherein there existed no provision in the PMLA which would even remotely be relatable to the power exercised by the courts in remanding arrested persons to custody, and therefore, held that Section 167 of the CrPC would apply to arrests made under the PMLA. Applicability of Section 160 of the CrPC to investigations under the PMLA, specifically with regard to the protection granted to a woman, and not with regard to the territorial limitation - HELD THAT:- Considering that Section 50 of the PMLA specifically refers to any person which would include a woman, the special provision in Section 160 CrPC available to a woman would not apply in view of the overriding provision in Section 71 of the PMLA. To apply proviso to Section 160 CrPC concerning a woman to a summons issued under Section 50 of the PMLA would amount to curtailing the powers of the authorized officer under the PMLA, which extends to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lala with active connivance of certain ECL employees. b. On 28.11.2020, ECIR bearing No. 17/HIU/2020 ( ECIR ) was registered. Various Summons(es) were issued to Petitioners No. 1 and 2 by the Respondent in relation to the ECIR on several occasions seeking their appearance in New Delhi along with voluminous documents. Replies were furnished by the Petitioners to the said Summons(es) which have been annexed with the Writ Petition. c. Summons dated 18.08.2021 was issued seeking personal appearance of Petitioner No. 1 on 06.09.2021. The Petitioner No. 1 in compliance of the Summons, joined investigation on 06.09.2021. After Petitioner No. 1 was examined by the respondent, summon dated 06.09.2021 was issued seeking his personal appearance on 08.09.2021. Reply dated 08.09.2021 was sent by Petitioner No. 1 stating that he had cooperated with the investigation conducted by the respondent and would continue to do so. Petitioner No. 1 further stated that he appeared before the respondent on 06.09.2021 and sought for four (4) weeks time for the documents sought in the concerned summon. Petitioner No. 1 also requested that the investigation qua him be conducted in Kolkata or via video-c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es were seized and statements of the witness and other accused persons were recorded and it was found out that Inspector Ashok Kumar Mishra has received ₹ 168 crores in just 109 days from co-accused Anoop Majee, to be delivered to his political bosses including Vinay Mishra (co-accused) etc. c. It was pointed out that ₹ 168 crores were transferred through vouchers to Delhi and overseas. After investigation, complaint u/s 44/45 PMLA was filed against these two accused persons before Special Court, PMLA, Rouse Avenue Courts, New Delhi. The Ld Trial Court took cognizance in that complaint vide order dated 28.06.2021. It was pointed out that during the investigation of the above mentioned accused persons, names of present Petitioners surfaced and thereafter investigation proceeded accordingly. d. That the Petitioners while alleging mala fides have neither named any officer or person against whom mala fides are alleged nor have they made any officer or person a party to the proceedings. It is just a tactic to evade/hamper the investigation being carried out by the officers of the Respondent. 3. In light of the above, the Petitioners in WP(CRL) No.1808 of 2021 have s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her only request was to be examined at her residence at Kolkata. She also stated that it has come to her knowledge that the entire cause of action arose in West Bengal, and that other women in the ECIR have been examined at their residences in Kolkata. She further stated that a woman cannot be summoned to appear before an investigating authority, that too in a different state and reiterated her intention to fully co-operate and assist with the ongoing investigation. e. On 13.09.2021, the Respondent filed a complaint under Section 63 PMLA read with Section 174 IPC against the Petitioner, bearing CC No. 1186 of 2021, before the Ld. CMM, Patiala House Courts, New Delhi. The Ld. CMM, Patiala House Courts took cognizance of the aforesaid complaint vide Order dated 18.09.2021 (hereinafter referred to as First Impugned Order ). Thereafter, the Ld. CMM, Patiala House Courts summoned the Petitioner physically for furnishing surety vide Order dated 30.09.2021 (hereinafter referred to as the Second Impugned Order ) f. The Petitioner, along with her husband, filed a Writ Petition bearing W.P. (Crl.) No. 1808/2021 titled Abhishek Banerjee and Anr. v. Directorate of Enforcement bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame, reliance is being placed on the judgment of the Hon ble Supreme Court in Ashok Munilal Jain Anr. Vs. Directorate of Enforcement, (2018) 16 SCC 158, para 3 4. (f) The Ld. Sr. counsel for the Petitioners have also sought to draw a parallel with a judgment of the Division Bench of this Hon ble Court in Asmita Aggarwal vs. Enforcement Directorate Others, 2002 (61) DRJ 339 (para 7, 8) which, in the context of Section 40 of the Foreign Exchange Regulation Act held that Section 160 of the CrPC, specifically the proviso, would apply to a woman being summoned in pursuance to any investigation under the Foreign Exchange Regulation Act, 1973 (hereinafter referred to as FERA ). The Ld. Sr. counsel for the Petitioners have submitted that Section 40 of FERA and Section 50 of the PMLA are similar provisions and are silent as to the manner and place where a person can be summoned for their examination. (g) The Ld. Sr. counsel for the Petitioners further relied on a judgment of Hon'ble High Court of Gujarat in Foziya Samir Godil v. Union of India, 2014 SCC Online Guj 3417 (Para 42 43). The Ld. Sr. counsel for the Petitioners further submitted that the said judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... OnLine PC 29. The Ld. SG further urged that it is within their investigative domain as to who is to be summoned and where such person is to be summoned. (b) Placing reliance on the order of the Hon'ble Supreme Court in Kirit Shrimankar v. Union of India Ors. in WP (Crl.) No. 109/2013, the Ld. SG urged that the writ petition is premature, the Petitioners cannot be said to be persons aggrieved and, therefore, no violation of fundamental rights or statutory rights can be urged at the issuance of summons. In light of the above, it is urged that the present writ petition is not maintainable. Reliance in this regard is also placed on Union of India Anr. Vs. Kunisetty Satyanarayanan (2006) 12 SCC 28, Commissioner of Customs, Kolkata Anr. Vs. M/s M.M. Exports Anr. (2010) 15 SCC 647. (c) The Ld. SG submitted that the Respondent agency is a national agency which has Pan India jurisdiction and is not limited by the territorial limitations present in the CrPC. The Ld. SG pointed out that the scheme of the CrPC imposes a territorial restriction on the power of the investigation by a police officer wherein such restriction is limited to the local area which is in turn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion under the proviso to Section 160 CrPC would not apply to investigations under PMLA. It was submitted that in appeal from the said order, the Hon'ble Supreme Court vide order dated 03.08.2018 passed in SLP(Civil) No.19275 of 2018 granted interim relief to the Petitioner therein, however, the Hon ble Apex Court has not stayed the order of the Hon ble Division Bench mentioned above. (k) The Ld. SG further submits that as per the judgment in Nandini Satpathy vs. Dani (P.L.) And Anr (1978) DAN , the rationale behind the proviso to Section 160 CrPC was to keep women and children away from police station due to various factors and specifically due to the nature of police stations in general. In order to distinguish the same, the Ld. SG submitted that PMLA deals with white collar crimes committed with cool calculations and have seen an increased participation by persons from all walks of life including women. The Ld. SG submitted that therefore, with regard to special nature of the offence under the PMLA, the legislature thought it fit to do away with the distinction provided for under Section 160 of the CrPC contained in Chapter XII of the Code and proceeded made it gende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clause of the PMLA does not come in play. (b) The Ld. Sr. counsel for the Petitioner further highlighted that there are various territorial limitations even in the PMLA. The Ld. Sr. counsel for the Petitioners highlighted Section 6 (5), Section 16, Section 44, Section 51. (c) The Ld. Sr. counsel for the Petitioners further highlighted the annual report of the Department of Revenue showing an organizational chart of zonal officers. On the basis of the same, the Ld. Sr. counsel for the Petitioners urged that the concept of territorial limitation is also present under the PMLA. (d) The Ld. Sr. counsel for the Petitioners further submitted that the validity of the notice issued under Section 50 of PMLA can be challenged by way of a writ petition which is maintainable considering the statutory infractions pleaded by the Petitioners. (e) The Ld. Sr. counsel for the Petitioners further urged that the Petitioners had been repeatedly summoned to join the investigation by having to appear in New Delhi and when they joined the investigation, the Petitioners were subjected to a roving and fishing enquiry. In light of the same, the Ld. Sr. counsel for the Petitioners submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to analyze the respective scheme of the PMLA and the CrPC. A bare perusal of the Definition Clause of the CrPC would be relevant : 2. Definitions.- In this Code, unless the context otherwise requires,- (h) investigation includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf; (j) local jurisdiction , in relation to a Court or Magistrate, means the local area within which the Court or Magistrate may exercise all or any of its or his powers under this Code and such local area may comprise the whole of the State, or any part of the State, as the State Government may, by notification, specify; (k) metropolitan area means the area declared, or deemed to be declared, under section 8, to be a metropolitan area; (o) officer in charge of a police station includes, when the officer in charge of the police station is absent from the station-house or unable from illness or other cause to perform his duties, the police officer present at the station-house who is next in rank to such officer and is above the rank of con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cognizable cases and investigation of such cases.- (1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate. (2) No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial. (3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case. (4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable. 156. Police officer s power to investigate cognizable case.- (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial: 173. Report of police officer on completion of investigation.- (1) Every investigation under this Chapter shall be completed without unnecessary delay 16. A bare perusal of Section 2 of the CrPC read with Section 7 and other provisions of Chapter XII clearly points towards the territorial limitations imposed on police officers in terms of the exercise of their jurisdiction. Such jurisdiction appears to be limited to their respective local areas [except in certain situations] falling under their respective police stations. 17. As opposed to the same, a perusal of the PMLA would provide that the authorities under Section 48 of the PMLA, in the exercise of their powers under the PMLA are not territorially restricted in the manner envisaged under the CrPC. The relevant provisions may be noted as under : Section 2 Definitions (ra) offence of cross border implications , means- (i) any conduct by a person at a place outside India which constitutes an offence at that place and which would have constituted an offence specified in Part A, Par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... country or abroad. 54. Certain officers to assist in inquiry, etc.- The following officers and others are hereby empowered and required to assist the authorities in the enforcement of this Act, namely:- (a) officers of the Customs and Central Excise Departments; (b) officers appointed under sub-section (1) of section 5 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985); (c) income-tax authorities under sub-section (1) of section 117 of the Income-tax Act, 1961 (43 of 1961); 2 (d) members of the recognised stock exchange referred to in clause (f) of section 2 and the officers of the stock exchanges recognised under section 4 of the Securities Contracts (Regulation) Act, 1956 (42 of 1956); (e) officers of the Reserve Bank of India constituted under sub-section (1) of section 3 of the Reserve Bank of India Act, 1934 (2 of 1934); (f) officers of Police; (g) officers of enforcement appointed under sub-section (1) of section 36 of the Foreign Exchange Management Act, 1999 (40 of 1999); (h) officers of the Securities and Exchange Board of India established under section 3 of the Securities and Exchange Board of India Act, 199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... countries.- (1) The Central Government may enter into an agreement with the Government of any country outside India for- (a) enforcing the provisions of this Act; (b) exchange of information for the prevention of any offence under this Act or under the corresponding law in force in that country or investigation of cases relating to any offence under this Act, and may, by notification in the Official Gazette, make such provisions as may be necessary for implementing the agreement. (2) The Central Government may, by notification in the Official Gazette, direct that the application of this Chapter in relation to a contracting State with which reciprocal arrangements have been made, shall be subject to such conditions, exceptions or qualifications as are specified in the said notification. 57. Letter of request to a contracting State in certain cases.- (1) Notwithstanding anything contained in this Act or the Code of Criminal Procedure, 1973 (2 of 1974) if, in the course of an investigation into an offence or other proceedings under this Act, an application is made to a Special Court by the Investigating Officer or any officer superior in rank to the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eath of the accused or the accused being declared a proclaimed offender or for any other reason or having commenced but could not be concluded, the Central Government shall, on receipt of a letter of request from a court or authority in a contracting State requesting for confiscation or release of property, as the case may be, forward the same to the Director to move an application before the Special Court and upon such application the Special Court shall pass appropriate orders regarding confiscation or release of such property involved in the offence of money-laundering. 59. Reciprocal arrangements for processes and assistance for transfer of accused persons.- (1) Where a Special Court, in relation to an offence punishable under section 4, desires that- (a) a summons to an accused person, or (b) a warrant for the arrest of an accused person, or (c) a summons to any person requiring him to attend and produce a document or other thing or to produce it, or (d) a search warrant, issued by it shall be served or executed at any place in any contracting State, it shall send such summons or warrant in duplicate in such form, to such Court, Judge or Magistr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an order relating to a property under section 8 or where a Special Court has made an order of confiscation relating to a property under sub-section (5) or sub section (6) of section 8 and such property is suspected to be in a contracting State, the Special Court, on an application by the Director or the Administrator appointed under sub-section (1) of section 10, as the case may be , may issue a letter of request to a court or an authority in the contracting State for execution of such order. (2) Where a letter of request is received by the Central Government from a court or an authority in a contracting State requesting attachment, seizure, freezing or confiscation of the property in India, derived or obtained, directly or indirectly, by any person from the commission of an offence under a corresponding law committed in that contracting State, the Central Government may forward such letter of request to the Director, as it thinks fit, for execution in accordance with the provisions of this Act. (2A) Where on closure of the criminal case or conclusion of trial in a criminal court outside India under the corresponding law of any other country, such court finds that the of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Central Government may, by notification, specify in this behalf. 18. From a perusal of the same, it is clear that the legislature has created a separate machinery in order to deal with a specific offence and, despite being aware of the territorial limitations in the CrPC, the legislature chose not to incorporate those limitations in the PMLA. Admittedly, certain sections of the PMLA like Section 6, Section 16 and Section 44 refer to territorial jurisdiction in specific circumstances, no other provision of the PMLA, especially the provisions concerning the investigative powers of the authorities under the Act provide for any such territorial limitation. 19. This again shall have to be considered in light of Section 4 and 5 of the CrPC read with Section 65 and 71 of the PMLA. It was open for the Legislature, to enact a scheme in the nature of the CrPC and carry the same limitations in the PMLA however, the same clearly appears to be omitted consciously. Therefore, it is clear that the authorities under the PMLA are not restricted as per the territorial caskets envisaged under the CrPC and would naturally exercise jurisdiction depending upon the exigencies of special invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs, 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 respecting which they are examined or make statements, and produce such documents as may be required. (4) Every proceeding under sub-sections (2) and (3) shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code (45 of 1860). (5) Subject to any rules made in thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en and children. On the other hand, Section 50 of the PMLA while providing for a similar power of requiring attendance of any persons including witnesses, does not provide for such exception despite providing for powers of compulsory attendance. In light of the above, it is amply clear that Section 50 of the PMLA and Section 160 of the CrPC cannot operate together and there appears to be a clear inconsistency between the two. It is also clear that there would be a difference in the evidentiary value of the evidence collected under Section 50 of the PMLA as opposed to the evidence collected in Section 160 of the CrPC. To apply both the provisions together would be statutorily and logically not possible and may lead to absurdity. 24. The Petitioners have placed considerable reliance on the judgment in Asmita Aggarwal (supra) which was examining the question as to the summoning of a woman under Section 40 of FERA. The relevant paragraphs of the said judgment are as under:- 7. Bare reading of the proviso makes it clear that if the attendance of the woman is required it shall be at her residence. Admittedly the petitioner was summoned to produce documents. Reading of the summon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edly, Apex Court in Deepak Mahajan's case (Supra) was not dealing with the proviso of Section 160 Cr.P.C. but was dealing with the applicability of Section 167 of the Code to a case to be filed under FERA, It is not denied that Section 160 and Section 167 of the Code fall under the same Chapter i.e. Chapter XII under the title Information to the police and their power to investigate . It was while dealing with and interpreting Section 167 Cr.P.C. under Chapter XII of the Apex Court made the observation in Deepak Mahajan's case (Supra). The fact of the matter is that once the special legislation or enactment like FERA is silent with regard to certain procedure like where to investigate a woman, one cannot but have to have recourse to the code. Admittedly FERA is silent in this respect regarding investigating a woman 6r a minor under the FERA, therefore, we are of the view that the provisions of Section 160 of the Code would apply in the facts of this case. It may, however, be made clear that the petitioner will fully co-operate with the investigating officer. 25. The Ld. Sr. counsel for the Petitioners have further placed reliance on the judgment in Foziya Samir Godil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... beyond any doubt in this behalf which reads as under: 65. Code of Criminal Procedure, 1973 to apply.- The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply, insofar as they are not inconsistent with the provisions of this Act, to arrest, search and seizure, attachment, confiscation, investigation, prosecution and all other proceedings under this Act. 4. We may also refer to the judgment of this Court in Directorate of Enforcement v. Deepak Mahajan [Directorate of Enforcement v. Deepak Mahajan, (1994) 3 SCC 440 : 1994 SCC (Cri) 785] wherein it was held as under: (SCC p. 480, para 136) 136. In the result, we hold that sub-sections (1) and (2) of Section 167 are squarely applicable with regard to the production and detention of a person arrested under the provisions of Section 35 of FERA and Section 104 of the Customs Act and that the Magistrate has jurisdiction under Section 167(2) to authorise detention of a person arrested by any authorised officer of the Enforcement under FERA and taken to the Magistrate in compliance of Section 35(2) of FERA. 5. We, thus, do not agree with the opinion of the High Court that the provisions of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vestigation etc. Therefore, this provision is introduced to help the authority in its investigation or proceedings under the Act by having recourse to the Code whenever the Act does not provide so. Hence, Section 65 has to be interpreted to mean that Code is meant to be used by an authority in discharge of his functions under Act 15 of 2003. 25. Section 71 speaks of the over riding effect. It contains a non-obstante clause dealing with any possible inconsistency in any other law. While Section 65 applies to the Code of Criminal Procedure for helping the authority, Section 71 clears any possible inconsistency with all the provisions of the Act 15 of 2003. Resultantly, even assuming if there is any inconsistency, with any other law for the time being in force, Act 15 of 2003 will have primacy. Idea is to avoid any obstacle that might arise through the operation of other enactments. xxx 29. Both the Code and the Act travel on their respective channels. Under the Code investigation is done by the police over a crime. On the contrary, under Act 15 of 2003, an authority has got different roles to play, in tune with the objectives. While Section 50(2) of the Act 15 of 2003 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Having found that FERA is silent regarding the investigation of women, it was held that the provision of Section 160 of the Code will apply. To be noted, there is no pari materia provisions under the FERA Act as contained in Act 15 of 2003 with specific reference to Sections 52, 65 and 72. Further, the petitioner therein was apprehending trouble at the hands of her husband and therefore, the aforesaid case is distinguishable on facts. xxx 46. The Gujarat High Court in FOZIYA SAMIR GODIL v. UNION OF INDIA (Spl. Crl. Application (Direction) No. 1725 of 2014 with Spl. Crl. Appln. No. 1748 of 2014 dated 09.05.2014) was in fact dealing with the very same issue. After going through the abovesaid judgment, we are of the view that inasmuch as there is no conflict between Section 52 of the Act and Section 160 of the Code, it is not mandatory in all cases a woman shall never be called whatever be her involvement and status. Thus, it is for the second respondent to exercise power in a given case either to call a person or an authorised agent. Since a definition of the word person would include a woman, it is certainly open to the authority to take a call either summon her phys ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence. This means that if an order passed by the Appellate Authority is quashed and the matter is remanded, the result would be that the appeal which had been disposed of by the said order of the Appellate Authority would be restored and it can be said to be pending before the Appellate Authority after the quashing of the order of the Appellate Authority. The same cannot be said with regard to an order staying the operation of the order of the Appellate Authority because in spite of the said order, the order of the Appellate Authority continues to exist in law and so long as it exists, it cannot be said that the appeal which has been disposed of by the said order has not been disposed of and is still pending. We are, therefore, of the opinion that the passing of the interim order dated February 21, 1991 by the Delhi High Court staying the operat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Procedure, 1973 (1 of 1974) shall apply, in so far as they are not inconsistent with the provisions of this Act, to arrest, search and seizure, attachment, confiscation, investigation, prosecution and all other proceedings under this Act. Section 71 : Act to have overriding effect The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. 30. From a bare reading of the said provisions along with the scheme of the PMLA, it is clear that sections of CrPC would apply only if the field is not covered, in any manner, by the provisions of the special enactment by way of the PMLA. The CrPC by way of Section 4 Section 5 itself provides that in case a special law exists, such law will apply over and above the CrPC. Section 65 read with Section 71 of the PMLA further provides that while certain provisions of the CrPC may apply in case there exists no provision in the PMLA, in case of any inconsistency, contradiction or confusion arises, the provisions of the PMLA will prevail and override the provisions of the CrPC. It is otherwise also settled law that special law prevails over gen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utory limited either on the basis of territory or on the basis of the gender of the person. 33. Though the said judgment can be based solely on the above finding, it may be recorded that the protection under Section 160 of CrPC to a woman is extended in order to keep women and children away from police stations and police company considering the peculiar condition of police stations in the country. It may further be noted that police station has a specific statutory meaning and when any person is summoned under Section 50 of the PMLA, including a woman, such woman is not summoned to a police station as envisaged under Section 160 of the CrPC. As per the judgment of the Hon'ble Supreme Court in Nandini Satpathy (supra), the protection to a woman under Section 160 CrPC serves a particular purpose in the context of police stations and the police powers. The said purpose is absent from an investigation under the PMLA which are conducted by high level officers as defined under Section 48 of the PMLA, headed by the Director who is appointed under Section 25 of the Central Vigilance Commission Act. The offices of the Directorate of Enforcement cannot be said to be police stati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terpret Section 50 of the PMLA harmoniously with Section 160 of CrPC. In view of the difference in the language and provision of the PMLA and FERA and specifically in view of the absence of an overriding provision in FERA the reliance of the Petitioners on the judgment in Asmita Agarwal (supra) is misplaced. 36. With regard to the allegation of mala fide it would be apposite to note that the same is to be established to a specific assertion on the basis of proven facts and not on the basis of conjectures and surmises. The burden of establishing mala fide is very heavy on the person who alleges it and further often requires relevant persons against whom such allegations are made to be made parties to the petition so as to enable them to respond to such allegations. 37. In the present case, the Petitioners with regard to mala fide in their written submission, had stated that The Petitioners have reasonable apprehension that investigation conducted qua them is motivated and mala fide. In light of the settled law of the Hon'ble Apex Court on the subject [ Indian Rly. Construction Co. Ltd. v. Ajay Kumar, (2003) 4 SCC 579, Ajit Kumar Nag v. Indian Oil Corpn. Ltd., (2005) 7 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e present case as the notices under the said case were not issued under the PMLA and were rather issued under Section 160 of the CrPC and, therefore, clearly bound by the territorial limitations of the CrPC. The said interim order does not further the case of the Petitioners on any ground. 41. Though the issue in the present two petitions pertain to applicability or otherwise of Section 160 of CrP Code, the question about applicability of Chapter XII itself [in which section 160 forms part] is pending consideration in a batch of petitions before Hon'ble Supreme Court of India in Vijay Madanlal Choudhary and ors versus Union of India and ors. [SLP (Cr l) No. 4634/2014] and other cognate matters. However, considering the very nature of the investigation under PMLA, this question needs to be examined and decided. Considering the very nature of PMLA, a meaningful reading of section 4 and 5 of CrPC r/w section 65 and 71 of PMLA, it evident that section 160 will have no application as the field is occupied by Section 50 of the PMLA. 42. In light of the above and for all the above reasons, the challenge of the Petitioners to the impugned notices/summons fails. The petition i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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