Sunday, February 5, 2023

Supreme Court agrees to list a plea by AITMC MP challenging Delhi High Court order in money laundering case

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The Supreme Court agrees to list a plea by All India Trinamool Congress (TMC)  MP Abhishek Banerjee challenging the order of Delhi High Court refusing to quash summons issued to him by Enforcement Directorate (ED) in money laundering case.

Senior Advocate Kapil Sibal mentions the plea before the Bench headed by Chief Justice of India NV Ramana.

“This is regarding that extra enthusiasm of the ED milords!”, Kapil Sibal told the Supreme Court.

The Supreme Court said that it will hear the matter next week.

Abhishek Banerjee, the national general secretary of the Trinamool Congress, and his wife Rujira moved the Supreme Court to quash the summons sent by the Enforcement Directorate (ED) in the West Bengal coal scam under the Prevention of Money Laundering Act (PMLA).

Rujira Banerjee, in her petition, sought a stay on the summon order, as well as transfer in the case. It prayed to the Apex Court to allow her for questioning before ED in Kolkata in relation to the case.

The plea further sought a decision from the Supreme Court on whether the ED can call the whole of India to Delhi for questioning anywhere by its summons.

Besides, the plea has also challenged the Delhi High Court order of March 11, wherein the High Court had rejected his application against summoning by ED for questioning.

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On 27.11.2020, an FIR/RC was registered by the CBI ACB, Kolkata under Sections 120B and 409 of the Indian Penal Code, 1980 and Sections 13(2) read with Section 13(1)(a) of the Prevention of Corruption Act, 1988. The primary allegations in the RC were that illegal excavation and theft of coal were taking place in the leasehold areas of Eastern Coalfield Ltd. On 28.11.2020, ECIR was registered. Various Summons(es) were issued to Abhishek Banerjee and his wife Rujira Banerjee by the ED in relation to the ECIR on several occasions seeking their appearance in New Delhi along with voluminous documents.

Summons dated 18.08.2021 was issued seeking personal appearance of Abhishek Banerjee on 06.09.2021. Abhishek in compliance with the Summons, joined the investigation on 06.09.2021. After Abhishek  was examined by the respondent, a summon dated 06.09.2021 was issued seeking his personal appearance on 08.09.2021. Reply dated 08.09.2021 was sent by Abhishek stating that he had cooperated with the investigation conducted by the respondent and would continue to do so. Abhishek  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 summons. Abhishek also requested that the investigation be conducted in Kolkata or via video-conferencing as he is a permanent resident of Kolkata and the Respondent has a functional Zonal Office at Kolkata.

Summons dated 10.09.2021 were issued seeking the personal appearance of Abhishek. The Impugned Summons was served to Abhishek on 11.09.2021. However, Abhishek submits that the news about the Summons having been issued to Abhishek was put in public domain prior to the same being served to him. This, according to him, shows the mala-fide intentions of the Respondent.

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The Single-judge Justice Rajnish Bhatnagar   noted that 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 (Prevention of Money Laundering Act,. 2002) , 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 general law. The PMLA being a special criminal enactment providing for a separate investigative procedure and power, it is imperative that due meaning and regard is given to the provisions of the PMLA in its totality and the said provisions are allowed to operate in their full force on their own.

“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 all persons and has not been statutory limited either on the basis of territory or on the basis of the gender of the person”.

It is further noted by the Court that  it is settled law that the legislature is aware of the statutes already enacted and when the PMLA was enacted in 2002, the Parliament was aware of the protection afforded to a woman under Section 160 CrPC. Despite being aware of the same, the Parliament while enacting a similar provision providing for compulsory attendance of persons, chose not to extend the same protection under the PMLA Act. At the same time wherever the Parliament thought it to be necessary it extended the protection to a woman under the PMLA, it has specifically provided so – as is in case of Section 45 of the PMLA. Therefore, on this point also, it is clear that there is an inconsistency between Section 50 of the PMLA and Section 160 of the CrPC and also there is a clear legislative intent behind not providing the protection in the nature of the proviso to Section 160 of the CrPC to a woman under Section 50 of the PMLA.

Also Read: Supreme Court agrees to list a plea by AITMC MP challenging Delhi High Court order in money laundering case

With regard to the allegation of mala fide , the Court observed 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.

“ far as the allegations of mala fides are concerned, the same has no place in criminal investigations. Secondly, it is settled law that allegations of mala fides are easier to be made than to actually make out. The allegations of mala fides need to be corroborated with concise statements of material facts which inspire confidence. Thirdly, apart from non-applicability of such grounds in a criminal investigation, the PMLA and CrPC provides for enough and sufficient safeguard with checks and balances to obviate any such apprehension.”

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 is pending consideration in a batch of petitions before Supreme Court of India , the High Court however observed that  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 is evident that section 160 will have no application as the field is occupied by Section 50 of the PMLA.”

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The Court also dismissed a separate plea by Rujira Banerjee by which she had challenged the ED’s complaint with the Rouse Avenue court for her non-appearance and the Chief Metropolitan Magistrate’s (CMM) order taking cognisance of the same.

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