Abhishek Banerjee & Anr. Vs Directorate of Enforcement (Supreme Court of India)
Proceedings against MP Abhishek Banerjee and his wife in coal scam were deemed ‘Judicial’ and statements recorded were “Admissible Evidence” under PMLA
Conclusion: Summons issued to appellant husband and wife by the Enforcement Directorate, seeking their personal appearance in New Delhi with the documents sought for, pertaining to the FIR registered in respect of alleged illegal excavation and theft of Coal, against the accused should not be quashed. As per sub-section (4) thereof every proceeding under sub-sections (2) and (3) was deemed to be a Judicial proceeding within the meaning of Section 193 and Section 228 of the Indian Penal vode,1860. Also according to sub-section(4) of Section 63, a person who intentionally disobeys any direction issued under Section 50 of Prevention of Money Laundering Act, 2002 (MLA,2002) was liable to be proceeded against under Section 174 of Indian Penal Code,1908.
Held: The writ petition was filed by Appellants – Abhishek Banerjee and Rujira Banerjee (wife of appellant) seeking quashing of the Summons issued to them by the Respondent – ED under Section 50 of Prevention of Money Laundering Act, 2002 (“PMLA”), and not to issue any Summons under Section 50 for their appearance in New Delhi, rather than their hometown/ place of domicile i.e. Kolkata. In the present case, an FIR came to be registered by CBI, ACB, Kolkata for the offences under Section 120B and 409 of IPC and Section 13(2) r/w 13(1)(a) of the Prevention of Corruption Act, 1988 (“PC Act”), in respect of alleged illegal excavation and theft of Coal taking place in the leasehold areas of Eastern Coalfields Limited (ECL) by one Anup Majee with the active connivance of certain employees of ECL. Based on the said FIR, an ECIR came to be registered by ED at their Head Investigative Unit in New Delhi. Appellant-Rujira Banerjee had sought quashing of the Complaint filed by ED against her for the offence under Section 174 of India Penal Code (IPC), and for quashing the Order passed by the Chief Metropolitan Magistrate (CMM), New Delhi taking cognizance of the complaint, as also the Order summoning her, passed by the said Court. During the course of investigation of the FIR in respect of theft of Coal and illegal excavation being done by the criminal elements in the leasehold area of ECL, a large number of vehicles/ equipment’s used in the illegal coal mining and its transportation were seized. It was found that the said case involved money laundering to the tune of Rs. 1300 Crores. According to ED one of the accused Vikas Mishra was arrested along with another accused Inspector Ashok Mishra, who had become part of illegal Coal mafia and had helped in laundering several hundred crores of rupees. It was also found that Inspector Ashok Kumar Mishra had allegedly received Rs.168 crores in just 109 days from the co-accused Anup Majee, to be delivered to his political bosses including co-accused Vinay Mishra. Various summons were issued to Abhishek Banerjee under Section 50 of PMLA seeking his personal appearance in New Delhi with the documents sought for. Appellant- wife was also issued Summons under Section 50 of PMLA for her personal appearance in New Delhi. Both the Appellants did not remain present as directed and furnished their respective replies seeking time to comply with the said Summons. Thereafter, ED filed a Complaint against Appellant-wife in the Court of Chief Metropolitan Magistrate, New Delhi under Section 190 (1)(a) r/w Section 200 Cr.P.C. r/w Section 63(4) PMLA, alleging the commission of the offence under Section 174 of IPC for non-compliance of the Summons. The court vide order took cognizance of the impugned offence and issued summons to Appellant-wife for personal appearance. She virtually appeared and sought exemption and was granted with direction to be present personally before the court. The said complaint of ED and the order by CMM was challenged by Appellant-wife by filing Crl. M.C No. 2442 of 2021 before the High Court. As stated earlier, both the writ petition came to be dismissed by the High Court. On further appeal before Supreme Court. Appellants contended that – Section 50 of the PMLA did not provide the procedure for exercise of such power; the procedure relating to territoriality of investigation, or power to summon sick, or infirm/ women/ children and record their statements had not been provided under Section 50 PMLA, as it is provided under Section 160 and 161 Cr.P.C; power without guidance for manner in which it was to be exercised could not be said to be fair, just and reasonable procedure established by law under Article 21 of the Constitution. a combined reading of Section 4(2) Cr.P.C. and Section 65 PMLA would show that the application of the Code was not barred as long as the provisions of the Code were consistent with the PMLA; The Cr.P.C. provides that the existence of the territorial nexus to the commission of a crime was a jurisdictional threshold for the exercise of powers of investigation by a police officer. However, ED had not demonstrated as to how it could be prejudiced by calling the Appellant husband to its office in Kolkata where the ED had the Zonal Office; administrative instructions consistent with Section 51 of PMLA that demarcate the specific territorial jurisdiction of various Zonal Offices of the ED must be strictly complied with by the ED in consonance with Article 21 of the Constitution of India ; Section 91 of Cr.P.C. only deals with summons for production of documents, whereas the summons issued to the Appellant husband under PMLA were for personal appearance before ED at New Delhi was nothing but an abuse of process of law. Held: It was abundantly clear that the dispensation regarding Prevention of Money Laundering, Attachment of Proceeds of Crime, and Inquiry/Investigation of offence of Money Laundering including issuing summons, recording of statements, calling upon persons for production of documents etc. upto filing of the Complaint in respect of offence under Section 3 of PMLA was fully governed by the provisions of the said Act itself. The jurisdictional police who was governed by the regime of Chapter XII of the Code, could not register the offence of money laundering, nor can investigate into it, in view of the special procedure prescribed under the PMLA with regard to the registration of offence and inquiry/investigation thereof, and that the special procedure must prevail in terms of Section 71 of the PMLA. Apart from the fact that Section 50 was a gender neutral, as it did not make any distinction between a man and a woman, there were glaring inconsistencies between the provisions contained in Section 50 of PMLA and Section 160/161 of Cr.P.C. It had been specifically laid down that the statements recorded by the Authorities under Section 50 of PMLA were not hit by Article 20(3) or Article 21 of the Constitution, rather such statements recorded by the authority in the course of inquiry were deemed to be the Judicial proceedings in terms of Section 50(4), and were admissible in evidence, whereas the statements made by any person to a Police Officer in the course of an investigation under Chapter XII of the Code could not be used for any purpose, except for the purpose stated in the proviso to Section 162 of the Code. In view of such glaring inconsistencies between Section 50 PMLA and Section 160/161 Cr.P.C, the provisions of Section 50 PMLA would prevail in terms of Section 71 read with Section 65 thereof. So far as the procedure to be followed by the Summoning Officer while exercising the powers under sub-section (2) and (3) of Section 50 of the PMLA was concerned, it was pertinent to note that Rule 11 of the said Rules 2005, required the Summoning Officer to follow the procedure as prescribed therein, i.e., to issue Summons in Form V appended to the said Rules. Thus, there being specific procedure prescribed under the Statutory Rules of 2005 for summoning the person under sub-sections (2) and (3) of Section 50 of the Act, the same would prevail over any other procedure prescribed under the Code, particularly the procedure contemplated in Section 160/161, as also the procedure for production of documents contemplated in Section 91 of the Code, in view of the overriding effect given to the PMLA over the other Acts including the Cr.P.C. under Section 71 r/w Section 65 of the PMLA. As contemplated in the sub-section (3) of Section 50, all the persons summoned are bound to attend in person or through authorized agents as the officer may direct and are bound to state the truth upon any subject respecting which they are examined or make statements, and to produce the documents as may be required. As per sub-section (4) thereof every proceeding under sub-sections (2) and (3) is deemed to be a Judicial proceeding within the meaning of Section 193 and Section 228 of the IPC. As per sub-section (4) of Section 63, a person who intentionally disobeys any direction issued under Section 50 is liable to be proceeded against under Section 174 of the IPC. As transpiring from the Status Report submitted by the Deputy Director, Directorate of Enforcement, New Delhi, pursuant to the Order passed by this Court, the Appellant wife had not appeared and not produced the documents as required vide the Summons dated 04.08.2021 and 18.08.2021. The ED therefore had filed the Complaint in the Court of Chief Judicial Magistrate, New Delhi against her under Section 63 PMLA r/w Section 174 IPC. It was also pertinent to note that though the Appellant wife by filing the Crl. M.C. No. 2442 of 2021 before the High Court had challenged the Order passed by the said Court taking cognizance of the said Complaint and the Order dated 30.09.2021 summoning her before the Court, she had not even bothered to produce the said Orders before this Court in the instant Appeals. Since the said Complaint was pending before the concerned Court of Chief Judicial Magistrate, no opinion on the merits of the said Complaint was expressed. Suffice it to say that there was no illegality in the said orders passed by the concerned court and that the said complaint should be proceeded further by the said Court in accordance with law.
