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2022 Supreme(Cal) 274
IN THE HIGH COURT OF CALCUTTA
Tirthankar Ghosh, J.
In Re : Enforcement Directorate - Appellant
Versus
. - Respondent
C.R.R. No. 3880 of 2022 (An application under Section 397/401 read with Section 482 of Code of Criminal Procedure 1973 and Article 227 of the Constitution of India.)
Decided On : 11-10-2022
Mr. Phiroze Edulji, Ms. Anamika Pandey, Ms. Amrita Pandey, Mr. Ghanshyam Pandey Ms. Sneha Singh, Ms. Shikha Kashyap for the Enforcement Directorate, for the Appellant; Mr. Billwadal Bhattacharyya, Ld. Deputy Solicitor General for the CBI, Mr. Dipak Sengupta, Mr. Farook Rezzak Mr. Sabir Ahmed, Mr. Anirban Guhathakurta Mr. Sanjib Dan, Mr. Sujan Chatterjee, Ms. Nayana Mitter, Mr. Debayan Mukherjee for the Opposite Party, for the Respondent
The central legal point established in the judgment is the interpretation of the provisions of Section 267 and Section 167 of the Cr.P.C. in the context of the Court's jurisdiction to issue production warrant and grant transit remand.
Headnote:
Enforcement Directorate - Production Warrant and Transit Remand - Code of Criminal Procedure, 1973, Prevention of Money Laundering Act, 2002 - Section 267, Section 167, Section 65 - The court discussed the provisions of Section 267 of the Cr.P.C. for production of the accused, the concept of issuing production warrant at the time of investigation, and the power of the Court to grant transit remand under Section 167 of the Cr.P.C. The court also highlighted the need for specific orders from the Court at Delhi and the interpretation of the provisions in the context of the case.
Fact of the Case:
The Enforcement Directorate filed an application seeking production warrant cum transit remand of the accused Sehegal Hossain under Section 267 of the Cr.P.C. read with Section 167 of the Cr.P.C. and Section 65 of the Prevention of Money Laundering Act, 2002. The application was rejected by the learned Vacation Judge, Paschim Bardhaman, leading to the filing of a revisional application.
Finding of the Court:
The Court found that the application before the Vacation Judge, Paschim Bardhaman was misconceived and did not call for interference, as the power to issue production warrant and grant transit remand lay with the Court at Delhi, which was in seisin of the merits of the case. The Court also noted that the Enforcement Directorate had not pursued the remedy for challenging the legality of the orders passed by the Court at Delhi.
Issues: The issues included the jurisdiction of the Court to grant production warrant and transit remand, the interpretation of the provisions of Section 267 and Section 167 of the Cr.P.C., and the need for specific orders from the Court at Delhi.
Ratio Decidendi: The Court held that the power to issue production warrant and grant transit remand lay with the Court at Delhi, and the application before the Vacation Judge, Paschim Bardhaman was misconceived. The Court also emphasized the need for specific orders from the Court at Delhi and the interpretation of the provisions in the context of the case.
Final Decision: The revisional application was dismissed, and all parties were directed to act on the server copy of the order duly downloaded from the official website of the Court.
JUDGMENT
1. The present application has been preferred challenging the order dated 7th October, 2022 passed by the learned Vacation Judge, Paschim Bradhaman in respect of ECIR- KLZO/41/2020 thereby rejecting the prayer of the petitioner/ Enforcement Directorate in respect of issuance of production warrant and grant of transit remand to the accused Sehegal Hossain.
2. Mr. Phiroze Edulji, learned advocate appearing for the Enforcement Directorate draws attention of the Court to the application which was preferred under Section 267 read with Section 167 of the Code of Criminal Procedure, 1973 read with Section 65 of the Prevention of Money Laundering Act, 2002 for seeking production warrant cum transit remand of the accused named above. In the said application two prayers were advanced, firstly, issuance of production warrant of the accused Sehegal Hossain, secondly, grant of transit remand of the accused to be produced before the Learned Special Judge (PC Act) (CBI)-18, Rouse Avenue District Courts, New Delhi.
3. The application contained amongst others the merit of the cases particularly with the reference to the complaint and the supplementary complaint which was filed before the designated Learned Special Judge (PC Act) (CBI)-18, Rouse Avenue District Courts, New Delhi wherein option was kept open for further investigation of the case. Details of the fact which surfaced in course of the earlier investigation was narrated in the application so filed and it was contended that a prayer was advanced before the CBI Special Court, Asansol on 28th September, 2022 for interrogating the accused Sehegal Hossain in jail which was granted by the learned Special Court Asansol and pursuant to which statement was recorded under Section 50 (2) and Section 50 (3) of the PMLA ACT, 2002. The investigating agency/petitioner claimed that having regard to the materials which surfaced on interrogation of the accused, his custody was required for further interrogation and for production before the designated Court at Delhi.
4. Learned advocate appearing for Enforcement Directorate produced the record before this Court regarding the schedule of some properties as also the statement of the accused which was recorded in jail and by pointing out the differences prayed before this Court for custody of the accused.
5. Mr. Billwadal Bhattacharya, learned Deputy Solicitor General was directed to be served for the purpose of ascertaining from CBI as to whether the accused who has been detained in connection with the RC 0102020A0019 dated 21.09.2020 for commission of offences punishable Under Section 120B IPC read with Section 7,11,12 of the PC ACT is any further required by the CBI for the purpose of the investigation which is pending or continuing in connection with the said case.
6. Learned Deputy Solicitor General on instruction from Mr. Rajiv Mishra Superintendent of Police, Anti-Corruption Branch submitted that the CBI has got no objection if in the interest of justice the accused/opposite party is handed over to the Enforcement Directorate for the sake of their investigation in this particular case.
7. Mr. Farook Rezzak, learned senior advocate appearing on behalf of the accused/opposite party, namely Sehegal Hossain pointed out to this Court that it is an admitted position that the production warrant which was sought for before the Learned Special Judge (PC Act) (CBI)-18, Rouse Avenue District Courts, New Delhi by the Enforcement Directorate was refused on 05.09.2022. The prayer for interrogating the accused was also refused on 09.09.2022.
8. The petitioner has proceeded thereafter to the CBI Special Court at Asansol and prayed for interrogating the accused which was granted and consequently the petitioner was shown arrested thereafter a prayer was advanced before the learned Vacation Judge, Paschim Bardhaman for production warrant and transit remand.
9. It was pointed out by the accused that before the learned Vacation Judge, Paschim Bardhaman the orders date
