1. Petitioners challenged summons under PMLA Section 50 issued by Enforcement Directorate in coal theft and money laundering case, alleging violation of CrPC Section 160 territorial and gender protections. (Para 11000684090001 , 11000684090045 , 11000684090002 , 11000684090003 , 11000684090004 , 11000684090005 , 11000684090006 )
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2022 Supreme(Del) 202
IN THE HIGH COURT OF DELHI AT NEW DELHI
Rajnish Bhatnagar, J.
Abhishek Banerjee & Anr. - Appellants
Versus
Directorate Of Enforcement - Respondent
W.P.(Crl.) 1808 of 2021 and Crl. M.As. 14972-73 of 2021, Crl.Mc. 2442 of 2021 and Crl.M.A. 16069 of 2021
Decided On : 11-03-2022
Important Points
Point of Law: Sections of CrPC would apply only if the field is not covered, in any manner, by the provisions of the special enactment by way of the PMLA.
Subject
Criminal Law - Section 160
Act Referred
CONSTITUTION OF INDIA : Art.226
CRIMINAL PROCEDURE CODE : S.160, S.2, S.4, S.4(2), S.5
FOREIGN EXCHANGE MANAGEMENT ACT : S.36(1)
FOREIGN EXCHANGE REGULATION ACT : S.40
FORWARD CONTRACTS REGULATION ACT : S.3, S.6
INCOME TAX ACT : S.117(1)
INDIAN PENAL CODE : S.120(b), S.228, S.409
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT : S.5(1)
PREVENTION OF CORRUPTION ACT : S.13(1)(a), S.13(1)(d), S.13(2)
PREVENTION OF MONEY LAUNDERING ACT : S.2(na), S.2(ra), S.2(rc), S.2(u), S.50, S.50(2), S.55, S.56, S.57, S.58, S.58(b), S.59, S.60, S.61, S.63, S.65, S.71
RESERVE BANK OF INDIA ACT : S.3(1)
SECURITIES AND EXCHANGE BOARD OF INDIA ACT : S.3
SECURITIES CONTRACTS REGULATION ACT : S.4
CRIMINAL PROCEDURE CODE : S.160, S.2, S.4, S.4(2), S.5
FOREIGN EXCHANGE MANAGEMENT ACT : S.36(1)
FOREIGN EXCHANGE REGULATION ACT : S.40
FORWARD CONTRACTS REGULATION ACT : S.3, S.6
INCOME TAX ACT : S.117(1)
INDIAN PENAL CODE : S.120(b), S.228, S.409
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT : S.5(1)
PREVENTION OF CORRUPTION ACT : S.13(1)(a), S.13(1)(d), S.13(2)
PREVENTION OF MONEY LAUNDERING ACT : S.2(na), S.2(ra), S.2(rc), S.2(u), S.50, S.50(2), S.55, S.56, S.57, S.58, S.58(b), S.59, S.60, S.61, S.63, S.65, S.71
RESERVE BANK OF INDIA ACT : S.3(1)
SECURITIES AND EXCHANGE BOARD OF INDIA ACT : S.3
SECURITIES CONTRACTS REGULATION ACT : S.4
Headnote
a. Indian Penal Code, 1860 - Sections 120B and 409 - Prevention of Corruption Act, 1988 - Sections 13(2) r/w 13(1)(a), 50 and 65 – Criminal Procedure Code, 1973 – Sections 160 and 482 - Criminal Conspiracy and illegal excavation and theft of coal - Police officer’s power to require attendance of witnesses - Territorial divisions - Whether Section 160 of the CrPC would be applicable to an investigation conducted under the PMLA - Allegations in RC were that illegal excavation and theft of coal was taking place in the leasehold areas of Eastern Coalfield Ltd. (“ECL”) by one Anup Majee with active connivance of certain ECL employees - ECIR was registered. Various Summons(es) were issued to Petitioners by the Respondent in relation to ECIR on several occasions seeking their appearance in New Delhi along with voluminous documents - Replies were furnished by the Petitioners to he said Summons(es) which have been annexed with the Writ Petition.
1. Finding of the court :
2. A bare perusal of Section 2 of the CrPC read with Section 7 and other provisions of Chapter XII clearly points towards the territorial limitations imposed on police officers in terms of the exercise of their jurisdiction. Such jurisdiction appears to be limited to their respective local areas [except in certain situations] falling under their respective police stations - It is clear that sections of CrPC would apply only if the field is not covered, in any manner, by provisions of the special enactment by way of the PMLA. 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 CrPC may apply in case there exists no provision in the PMLA, 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 - A meaningful reading of section 4 and 5 of CrPC r/w section 65 and 71 of PMLA, it evident that section 160 will have no application as the field is occupied by Section 50 of the PMLA.
Result: Petition dismissed
Legal Category Hierarchy
-
crime and sentencing
-
money laundering
- pmla investigation powers (Para 11000684090017, 11000684090018, 11000684090019, 11000684090020, 11000684090022)
- proceeds of crime (Para 11000684090002)
-
offences against property
- theft (Para 11000684090001)
- criminal conspiracy (Para 11000684090001)
-
money laundering
-
practice and procedure
-
criminal procedure
- territorial jurisdiction (Para 11000684090013, 11000684090014, 11000684090015, 11000684090016)
- summons and attendance (Para 11000684090021, 11000684090022, 11000684090023)
-
special legislation
- pmla overriding effect (Para 11000684090029, 11000684090030, 11000684090034)
- crpc applicability to special laws (Para 11000684090029, 11000684090030, 11000684090031)
-
writ jurisdiction
- maintainability (Para 11000684090012)
- interim orders (Para 11000684090039)
-
criminal procedure
-
constitutional law
- writ petitions (Para 11000684090012)
Advocates Appeared:
Mr. Kapil Sibal, Sr. Advocate, with Mr. Siddharth Aggarwal, Sr. Advocate, Mr. Angad Mehta, Mr. Rupin Bahal, Mr. Adit S. Pujari Mr. Abhinav Sekhri and Ms. Arshiya Ghose, Advocates, for the Appellant; Mr. Tushar Mehta, SG, Mr. S.V. Raju, ASG, with Mr. Amit Mahajan, CGSC, Mr. Kanu Agarwal and Mr. Kritigya Kumar Kait, Advocates. Mr. Ajay Dig
Mr. Kapil Sibal, Sr. Advocate, with Mr. Siddharth Aggarwal, Sr. Advocate, Mr. Angad Mehta, Mr. Rupin Bahal, Mr. Adit S. Pujari Mr. Abhinav Sekhri and Ms. Arshiya Ghose, Advocates, for the Appellant; Mr. Tushar Mehta, SG, Mr. S.V. Raju, ASG, with Mr. Amit Mahajan, CGSC, Mr. Kanu Agarwal and Mr. Kritigya Kumar Kait, Advocates. Mr. Ajay Dig
Table of Contents
2. Petitioners argued Section 160 CrPC applies to PMLA with territorial limits and women's protection; respondent argued PMLA is special national law without territorial constraints and Section 50 overrides Section 160. (Para 11000684090008 , 11000684090009 , 11000684090010 )
3. Petition dismissed; Section 160 CrPC does not apply to PMLA investigations; territorial and gender protections under Section 160 are not applicable to summons under Section 50 PMLA. (Para 11000684090042 , 11000684090043 , 11000684090044 )
4. Does Section 160 CrPC apply to investigations conducted under the PMLA?
No. Section 50 PMLA and Section 160 CrPC operate in the same field with clear inconsistencies. The PMLA is a special enactment without territorial limitations, and Section 71 PMLA has overriding effect over any inconsistent provisions of other laws. The legislature consciously chose not to incorporate CrPC territorial limitations. (Para 11000684090011 , 11000684090021 , 11000684090022 , 11000684090023 , 11000684090041 )
5. Do territorial limitations of the CrPC apply to PMLA investigations?
No. Despite awareness of CrPC territorial limitations, the legislature chose not to incorporate them in the PMLA. The PMLA establishes a national investigative agency with Pan India jurisdiction, and the scheme of PMLA is designedly different from CrPC with no such territorial limitations. (Para 11000684090017 , 11000684090018 , 11000684090019 , 11000684090020 )
6. Does the proviso to Section 160 CrPC protecting women apply to summons issued under Section 50 PMLA?
No. Section 50 PMLA refers to any person including women without gender-based exceptions. The overriding provision in Section 71 PMLA prevails, and the purpose of Section 160 protection, keeping women away from police stations, does not apply to PMLA investigations conducted by high-level officers. (Para 11000684090023 , 11000684090032 , 11000684090033 , 11000684090034 )
7. Can mala fide allegations be raised to challenge summons in criminal investigations?
No. Mala fide allegations require specific proven facts and named persons against whom mala fides are alleged. They have no place in criminal investigations and the burden of establishing mala fide is very heavy. (Para 11000684090036 , 11000684090037 , 11000684090038 )
8. Are interim orders passed by coordinate benches of the same court binding precedents?
No. An interim order is never a binding precedent even if passed by a coordinate bench of the same court when the matter is being heard and decided finally. (Para 11000684090039 )
JUDGMENT
1. The brief facts of the case are as follows :
a. 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.
b. 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.
c. 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 videoconferencing as he is a permanent resident of Kolkata and the Respondent has a functional Zonal Office at Kolkata.
d. 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.
2. The Respondent, on the other hand, countered the factual assertions as under:
a. Upon receipt of reliable information about theft of coal and illegal excavation being done by criminal elements from the lease hold area of Eastern Coal Field Ltd. (ECL) in connivance with officials of ECL, CISF, Indian Railways and other concerned departments, joint inspection was carried by Vigilance Department and Task Force Officials on several lease hold areas of ECL from May, 2020 onwards. During this inspection, several evidences of extensive illegal mining and its transportation were found. A large number of vehicles/equipments used in illegal coal mining and its transportation were seized during these inspections. Seizure of stolen coal was made from several locations during these raids. Pursuant to these raids and seizure of stolen material etc., an FIR bearing no. RC0102020 A 0022 dated 27.11.2020 was registered by CBI, Kolkatta against Sh. Amit Kumar Dhar, the then General Manager, ECL and others for the offence under Section 120B/409 I PC and Sec 13 (2) r/w Sec 13 (1) (d) of PC Act, 1988. Based on the said FIR and to probe the money laundering in India as well as internationally (since the ill gotten money/proceeds of crime have been routed to various places through non banking channels), the present ECIR was recorded by answering Respondent/ED.
b. Upon detailed investigation by ED, it was found out that the present case involves money laundering to the tune of Rs. 1300 Crores. One of the accused persons Vikas Mishra was arrested on 16.03.2021 and another accused Inspector Ashok Mishra of Bankura Police Station was arrested on 03.04.2021, who had become part of illegal coal mafia and helped coal
