In a very major jolt and big setback in the West Bengal coal scam case, the Delhi High Court in a refreshing, recent, remarkable, robust and rational judgment titled Abhishek Banerjee & Anr. v. Directorate of Enforcement and other connected matter in W.P.(CRL.) 1808/2021 and CRL.M.As. 14972-73/2021 and cited in 2022 LiveLaw (Del) 196 that was pronounced finally on March 11, 2022 has dismissed the plea by All India Trinamool Congress MP Abhishek Banerjee and his wife seeking quashing of summons issued to them by Enforcement Directorate in connection with West Bengal coal scam case. The single Judge Bench of Delhi High Court comprising of Justice Rajnish Bhatnagar also dismissed the plea by Banerjee’s wife Rujira Banerjee assailing the complaint filed by Enforcement Directorate against her in the money laundering case and the Trial Court order taking cognizance of the said complaint. The plea also assailed the subsequent issuance of summons against her for physical appearance.
To start with, this cogent, composed, courageous and convincing judgment authored by a single Judge Bench comprising of Justice Rajnish Bhatnagar of Delhi High Court first and foremost puts forth in para 1 that:
The brief facts of the case are as follows:
- On 27.11.2020, an FIR/RC was registered by the CBI ACB, Kolkata bearing No. RC0102020A0022 (“RC) under Sections 120B and 409 of the Indian Penal Code, 1980 (“IPC) and Sections 13(2) read with Section 13(1)(a) of the Prevention of Corruption Act, 1988 (“PC Act). The primary allegations in the RC were that illegal excavation and theft of coal was taking place in the leasehold areas of Eastern Coalfield Ltd. (hereinafter referred to as “ECL) by one Anup Majee @ Lala with active connivance of certain ECL employees.
- 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.
- 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-conferencing as he is a permanent resident of Kolkata and the Respondent has a functional Zonal Office at Kolkata.
- Summon dated 10.09.2021 (hereinafter referred to as the Impugned Summons) were issued seeking personal appearance of Petitioner No. 1. The Impugned Summons was served on Petitioner No. 1 on 11.09.2021. However, Petitioner submits that the news about the Summons having been issued to Petitioner No. 1 was put in public domain prior to the same being served to him. This, according to the Petitioner, shows the mala-fide intentions of the Respondent.
To put things in perspective, the Bench then envisages aptly in para 18 that, “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.
Quite rationally, the Bench then observes in para 19 that:
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 investigation. This is so in view of the nature of the offence being dealt with by “the authorities under the PMLA which may not be localized like IPC offences.
Be it noted, the Bench then notes in para 20 that:
The annual report of the Department of Revenue or the organizational chart of zonal officers of the Respondent would not come to the aid of the Petitioners as the same cannot be considered to be statutory limitations. In the absence of any express statutory limitations, it would not be possible to circumscribe the power of authorities under the PMLA by way of judicial interpretation of administrative documents, which at most, are for internal administrative convenience.
Therefore, while CrPC provide for a procedure to deal with offences under the IPC and imposes territorial limitations on police officer, the PMLA while establishing a national investigative agency, does not incorporate any such territorial limitations.
Most commendably, the Bench then holds in para 23 that:
Section 160 of the CrPC provides for the power of a police officer to require attendance of witnesses. At the same time, Section 50 of the PMLA deals with power of the authorities under the PMLA regarding summons, production of documents and to give evidence. Section 50 provides that the authorities shall have the power to enforce attendance of ‘any person’ and shall also have the power to summon ‘any person’ whose attendance is considered necessary for the purpose of investigation.
The proceedings under Section 50 are statutorily considered to be civil in nature and the persons so summoned are bound to attend and bound to state the truth before the authorities. Therefore, while Section 160 of CrPC is limited to witnesses (who may become accused in the future), Section 50 operates on a larger/broader level and includes the power not only to summon witnesses but to summon and enforce the attendance of any person (which would necessarily women).
On a plain reading of Section 160 of the CrPC, it is clear that it empowers only a “police officer which has a specific meaning in criminal jurisprudence who is making an investigation under Chapter XII of the CrPC and has specific responsibilities under the CrPC as noticed above. Further, Section 160 of CrPC, in line with the overall scheme of the CrPC of territorial limitations, provides for a limitation on only such persons who are within the limits of territorial jurisdiction of such police officers, police station or any adjoining station, can be required for attendance under the said provision.
The PMLA while providing for a similar power of requiring attendance of any person - including witnesses, has not imposed any such territorial limitation as the scheme of the PMLA does not permit the same. Further, Section 160 of the CrPC provides for exception by way of a proviso which is applicable to women 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.
Simply put, the Bench makes it clear in para 38 that:
Further, so far as the allegations of malafides are concerned, the same has no place in criminal investigations. Secondly, it is settled law that allegations of malafides are easy to be made than to actually make out. The allegations of malafides 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.
Quite rightly, the Bench then mentions in para 39 that:
So far as the reliance placed upon the interim order passed by the Hon’ble High Court of Calcutta in W.P.A. No. 17576 titled Sumit Roy v. Union of India and Anr. is concerned, the same is perused. The same is, on the face of it, an interim order in a constitutional challenge to the PMLA without delving into the legal position which is discussed hereinabove. It is a settled position that an interim order is never a binding precedent even if the same is passed by a coordinate bench of the same court when the matter is being heard and decided finally. The interim order of the Hon’ble Calcutta High Court, therefore, may not be relevant when the issues are dealt with finally by this judgment. It is surprising that in the very same investigation, accused are choosing different forums substantially praying for the same relief. However, in view of the examination on merits as above, the conduct of the petitioners or that of the others is not gone into.
Of course, the Bench then clearly states in para 40 that:
With regard to the reliance of the Petitioners on the order dated 07.12.2021 in Writ Petition (Crl.) 1768 of 2021, it is stated that the facts of the said case are clearly distinguishable from the 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.
Taking a clear stand, the Bench then points out in para 41 that:
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 is evident that section 160 will have no application as the field is occupied by Section 50 of the PMLA.
As a corollary, the Bench then holds in para 42 that:
In light of the above and for all the above reasons, the challenge of the Petitioners to the impugned notices/summons fails. The petition is hereby dismissed. No order as to costs. All pending applications (if any) are disposed of.
To be sure, the Bench then holds in para 43 that:
In light of the decision in WP(CRL) No.1808 of 2021, no legal issues survives in the present petition. The factual issues raised by the Petitioner herein can be urged before the jurisdictional Court. No extraordinary case has been made out to exercise inherent powers under Section 482 of the CrPC.
What’s more, the Bench then directs in para 44 that:
The lower courts may decide the issue without being influenced by the observations made in the present judgment.
Finally, the Bench then concludes by holding in para 45 that:
In light of the above, the petition is hereby dismissed. No order as to costs. All pending applications (if any) are disposed of.
In a nutshell, the Delhi High Court has laid bare the legal position quite clearly as to why the challenge of the petitioner to the impugned notices/summons fails and is legally untenable. It has also held quite clearly that no extraordinary case has been made out to exercise inherent powers under Section 482 of the CrPC. So it was but natural that the Delhi High Court dismissed the plea made by All India Trinamool Congress MP Abhishek Banerjee and his wife seeking quashing of summons issued to them by Enforcement Directorate pertaining to West Bengal coal scam case.
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh
