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TMI Blog2023 (11) TMI 725X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 2002 ('PMLA') and further directing and issuing an appropriate writ, order or direction to not summon the petitioner to New Delhi in case arising out of ECIR/17/HIU/2020 registered by the respondent on 28.11.2020. BACKGROUND FACTS: THE PROSECUTION'S CASE 2. The case of the prosecution, in brief, is that the FIR/RC bearing no. RC0102020A0022 dated 27.11.2020 was registered by Central Bureau of Investigation ('CBI'), ACB, Kolkata for the commission of offences under Sections 120B/409 of Indian Penal Code, 1860 ('IPC') and Section 13(2) read with 13(1)(a) of the Prevention of Corruption Act, 1988 ('PC Act') for illegal excavation and theft of coal from the leasehold area of Eastern Coalfield Ltd. ('ECL') in active connivance with officials of ECL, CISF, Indian Railways and concerned other departments, against the following accused persons: (a) Anup Majee @ Lala, (b) Amit Kumar Dhar, the then GM, Kunustoria Area, ECL (Eastern Coalfield Ltd), (c) Jayesh Chandra Rai, General Manager, ECL, Kajora Area, (d) Tamnay Das, Chief of Security, ECL, Asansol, (e) Dhananjay Rai, Area Security Inspector, Kunustoria, ECL (f) Debashish Mukherjee, Security-incharge, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 28.10.2021, 02.02.2022, 08.02.2022, 07.04.2022, 15.07.2022 & 29.03.2023. However, he had appeared before the agency only once on 28.10.2021. PETITIONER'S GRIEVANCE 5. The grievance of petitioner is that respondent agency, i.e. Directorate of Enforcement has issued the impugned summons to the petitioner in a mala-fide manner intending to harass him. It is his case that the impugned summons have been issued in complete violation of the established and fundamental principles of Cr.P.C., PMLA and the Constitution of India. Furthermore, the respondent has acted in a completely arbitrary and high-handed manner while repeatedly summoning the Petitioner to appear in New Delhi despite having a fully functional zonal office in Kolkata, West Bengal. 6. It is stated that the 67 years old petitioner is a permanent resident of Asansol, Paschim Bardhaman, West Bengal, and a Member of the West Bengal Legislative Assembly, and is serving as the Cabinet Law Minister in the Government of West Bengal. It is stated that evidently, the respondent has embarked on a fishing and roving enquiry and is trying their level best to create a false case against the petitioner by taking him to New Delhi even t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the petitioner, whom they are identifying as accused person, which is contrary to the law. It is stated that since the scheduled offences are alleged to have been committed in West Bengal, the investigation in respect of the same is ongoing in West Bengal, and the accused persons named in the RC/FIR registered by the CBI are residents of West Bengal, therefore, there exists no jurisdiction of the Head Investigative Unit of the respondent agency to assume investigative powers in respect of any allegations of money laundering arising in respect of the scheduled offence as the same could only have been investigated into by the concerned zonal office at Kolkata. It is submitted that it is clear from a perusal of Section 44(1)(a) that offences under the Act can only be tried by the Special Court that has been constituted for the area in which the offence has been committed. It is stated that as the entire cause of action arose within the state of West Bengal, the instant case under the provisions of the PMLA cannot be maintained in New Delhi and the same is nothing but an oblique way to bring persons from West Bengal to New Delhi and to threaten, intimidate and coerce them in an un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... & Anr. v. Directorate of Enforcement SLP Crl. No.28062807/2022 by the Hon'ble Apex Court has no applicability in the facts of present case. Therefore, it is prayed that present petition be dismissed. 11. This Court has heard arguments addressed by learned Senior Counsel for the petitioner as well as learned Special Counsel for the Directorate of Enforcement and has perused the material placed on record. ANALYSIS AND FINDINGS 12. In the present case, the main grievance of the petitioner is that he has been repeatedly summoned by the Directorate of Enforcement directing him to appear for questioning at the New Delhi office in connection with present ECIR, though he resides in Kolkata, West Bengal and the respondent has a zonal office in Kolkata. It was also his grievance when the present petition was filed that despite being not an accused in the predicate offence, he is being repeatedly summoned without being informed as to whether he is being called to join investigation as an accused or as a witness. 13. As per records, the petitioner herein had been summoned on nine occasions by the respondent and on eight occasions, he had not appeared before the officers concerned and had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est Bengal. Thereafter, a similar request was again made by petitioner with respect to summons dated 21.06.2023. Further, the petitioner had written a letter dated 21.07.2023 to the respondent stating that he would not be able to appear before the respondent agency on 25.07.2023 due to a scheduled Cabinet meeting and upcoming Assembly Session. 17. Thereafter, vide order dated 05.09.2023, the learned Predecessor of this Court had issued the following directions: "...3. However, without going into the merits of the case and taking into account the age of the petitioner and his health condition as stated at BAR by the learned senior counsel for the petitioner, the following directions are issued: a. It shall be open to the Enforcement of Directorate to require the attendance of the petitioner in its office situated at Kolkata by giving at least 24 hours notice; b. Simultaneously, notices shall also be issued to the Commissioner of Police, Kolkata and Chief Secretary, State of West Bengal so that adequate police protection is afforded to the person seeking to examine or interrogate the petitioner. E.D. officer shall ensure that if required, the appropriate medical aid is pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retain in his custody any such records for a period exceeding three months, without obtaining the previous approval of the Joint Director." 20. In Vijay Madanlal Choudhary v. Union of India 2022 SCC OnLine SC 929, the Hon'ble Apex Court had discussed the scope of Section 50 and the power to issue summons therein, by way of following observations: "425. Indeed, sub-section (2) of Section 50 enables the Director, Additional Director, Joint Director, Deputy Director or Assistant Director to issue summon to any person whose attendance he considers necessary for giving evidence or to produce any records during the course of any investigation or proceeding under this Act. We have already highlighted the width of expression "proceeding" in the earlier part of this judgment and held that it applies to proceeding before the Adjudicating Authority or the Special Court, as the case may be. Nevertheless, sub-section (2) empowers the authorised officials to issue summon to any person. We fail to understand as to how Article 20(3) would come into play in respect of process of recording statement pursuant to such summon which is only for the purpose of collecting information or evidence in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into the relevant facts in connection with the property being proceeds of crime is, in that sense, not an investigation for prosecution as such; and in any case, there would be no formal accusation against the noticee. Such summons can be issued even to witnesses in the inquiry so conducted by the authorised officials. However, after further inquiry on the basis of other material and evidence, the involvement of such person (noticee) is revealed, the authorised officials can certainly proceed against him for his acts of commission or omission. In such a situation, at the stage of issue of summons, the person cannot claim protection under Article 20(3) of the Constitution. However, if his/her statement is recorded after a formal arrest by the ED official, the consequences of Article 20(3) or Section 25 of the Evidence Act may come into play to urge that the same being in the nature of confession, shall not be proved against him. Further, it would not preclude the prosecution from proceeding against such a person including for consequences under Section 63 of the 2002 Act on the basis of other tangible material to indicate the falsity of his claim. That would be a matter of rule of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orm the basis for a prima facie apprehension of arrest. We, therefore, also expressed that the writ petition does not merit any consideration to be dealt with on the various issues raised, inasmuch as it will be for the petitioner to work out his remedy as and when any appropriate positive action is taken against the petitioner. In the course of hearing, learned Senior Counsel appearing for the petitioner now seeks to withdraw the writ petition reserving petitioner's liberty to work out his remedy in future, if any such situation arises..." 23. Similarly, in case of Commissioner of Customs, Calcutta v. M.M. Exports (2010) 15 SCC 647, the Hon'ble Apex Court, while dealing with a case of issuance of summons under Section 108 of Customs Act, had expressed that except in exceptional cases, High Courts should not interfere at the stage of issuance of summons. The relevant observations read as under: "1. By consent the impugned order is set aside. However, we wish to make it clear that as far as possible the High Court should not interfere at the stage when the Department has issued the summons. This is not one of those exceptional cases where the High Court should have interfere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The law declares that every such person who is summoned is bound to state the truth. At the time of such investigative process, the person summoned is not an accused. Mere registration of ECIR does not make a person an accused. He may eventually turn out to be an accused upon being arrested or upon being prosecuted. No person is entitled in law to evade the command of the summons issued under Section 50 PMLA on the ground that there is a possibility that he may be prosecuted in the future. The law declared in Nandini Satpathy (supra) concerning the statements under Section 161 Cr.P.C. recorded by the police, and in other pronouncements concerning similar powers of officers of the Customs Department, as noted earlier, provide a complete answer to the apprehensions that have been expressed. *** 146. There is nothing shown to the court from which it could be inferred that the issuance of summons by the respondents to the petitioners for investigation into the ECIR, in exercise of statutory powers, has caused, or has the effect of causing, any prejudice to any of them..." 25. The investigation in the present ECIR is still continuing and the petitioner has only been summoned to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ummoned under Section 50 of PMLA for the purpose of collecting information or evidence in respect of proceedings under PMLA and not necessarily for the purpose of initiating prosecution against him. 29. This Court has also considered the decision of Hon'ble Apex Court in case of Hukum Chand Garg & Ors. v. The State of Uttar Pradesh & Ors. SLP(Crl.) No. 762/2020 in which it was held that a person who is named in the ECIR cannot seek its quashing. The relevant portion of the decision reads as under: "...It is not in dispute that the petitioners have not If the been named as accused in the said crime. petitioners have not been named as accused in the said crime, the question of quashing of stated FIR or the case the Central Bureau of now under investigation by Investigation (CBI) arising from the said crime, does not arise as the petitioners will have no locus to seek such a relief..." 30. Thus, in such facts and circumstances, as mentioned above, this Court is of the opinion that the prayer for quashing of ECIR is premature and without any merit and there are no grounds to quash the same. 31. Since this Court is of the opinion that the petitioner's prayer for quashing of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s being compelled to be a witness against himself. This position is well-established...." (emphasis supplied) (iii) Interim Order of No Coercive Steps 34. This Court notes than an application was also moved on behalf of the petitioner seeking an interim order of no coercive steps in relation to present ECIR on the grounds that firstly, the petitioner is a public functionary and serving as a Cabinet Minister in Government of West Bengal, secondly, that he is suffering from several medical ailments and thirdly, that he is being repeatedly summoned by the respondent without being informed as to whether he is being summoned as a witness or as a prospective accused. 35. Though the aforesaid direction was sought as an interim relief during the pendency of present petition and this judgment disposes of the main writ petition filed by the petitioner alongwith all pending application, this Court deems it appropriate to note in this regard that the petitioner herein was first summoned in September, 2021 and since then, he has not been arrested till date despite the accused not appearing on eight occasions out of the nine, when he was summoned. The petitioner had also appeared only on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... autioned the High Courts to not pass order of 'no-coercive steps' in petitions filed under Article 226 of Constitution of India or Section 482 of Cr.P.C. since the same essentially reduces such proceedings to the nature of anticipatory bails. The observations of the Hon'ble Apex Court in this regard read as under: "67. This Court in the case of Habib Abdullah Jeelani (supra), as such, deprecated such practice/orders passed by the High Courts, directing police not to arrest, even while declining to interfere with the quashing petition in exercise of powers under Section 482 Cr. P.C. In the aforesaid case before this Court, the High Court dismissed the petition filed under Section 482 Cr. P.C. for quashing the FIR. However, while dismissing the quashing petition, the High Court directed the police not to arrest the petitioners during the pendency of the investigation. While setting aside such order, it is observed by this Court that such direction amounts to an order under Section 438 Cr. P.C., albeit without satisfaction of the conditions of the said provision and the same is legally unacceptable. In the aforesaid decision, it is specifically observed and held by this Court that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereunder for reference: "46. In the opinion of this court, section 438 Cr. P.C. does not require a formal accusation and the word 'may' preceding the words 'be arrested' and 'on accusation' signifies that both the arrest and accusation are anticipatory. That is to that, firstly, an application under section 438 can only be filed by a person who is yet to be arrested. Secondly, an application under section 438 can be filed irrespective of whether there is a formal accusation (e.g. FIR), which in a case under the PMLA would mean whether or not there is a prosecution complaint. 47. Though a person can seek protection under Article 20(3) of the Constitution of India only ex-post i.e., only after formally being made an accused, on the other hand a person can seek relief under section 438 Cr. P.C. ex-ante i.e., prior to both arrest and accusation. To interpret the provisions of section 438 differently in the context of PMLA would be contrary to two Constitution Bench decisions of the Supreme Court in Gurbaksh Singh Sibbia (supra) and Sushila Aggarwal (supra), which expressly lay-down that the filing of an FIR, viz. formal accusation, is not a condition precedent for filing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relief given by the Hon'ble Apex Court in case of Abhishek Banerjee & Anr. v. Directorate of Enforcement SLP Crl. No.2806-2807/2022. 40. This Court, however, is not deciding any question of law as to whether a man aged above 65 years can be summoned by the Directorate of Enforcement under Section 50 of PMLA at any place and whether the same will be in contravention of Section 160 of Cr.P.C., since the controversy involving applicability of Section 160 of Cr.P.C. to Section 50 of PMLA is pending adjudication before the Hon'ble Apex Court in case of Nalini Chidambaram v. Directorate of Enforcement SLP(C) 19275-19276/2018 and other tagged matters. The judgment passed by the Coordinate Bench of this Court in case of Abhishek Banerjee & Anr. v. Directorate of Enforcement 2022 SCC OnLine Del 747 holding that Section 160 of Cr.P.C. will have no applicability in cases of issuance of summons under Section 50 of PMLA has also been stayed by the Hon'ble Apex Court in case of Abhishek Banerjee & Anr. v. Directorate of Enforcement SLP Crl. No. 2806-2807/2022. 41. Therefore, in these circumstances, it is directed that in the present case, the respondent will be at liberty to requ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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