The Delhi High Court on Tuesday adjourned the hearing on a plea filed by Abhishek Bannerjee, Trinamool Congress MP and nephew of West Bengal Chief Minister Mamta Banerjee, along with his wife Rujira Banerjee, who had approached the Delhi High Court, seeking quashing of summons issued by the Enforcement Directorate in a case of alleged money laundering in the West Bengal Coal Scam.
A Single-Judge bench of Justice Yogesh Khanna was hearing the submissions of Senior Advocates Kapil Sibal and Sidhartha Agarwal, who were appearing for petitioners Abhishek Banerjee and his wife Rujira.
CBI argues
Senior Advocate Kapil Sibal, representing the Banerjee couple, had previously submitted that the application of Section 160 CrPC has got nothing to do with the Enforcement Directorate’s power to investigate the matter or its impact on PMLA. Solicitor General of India Tushar Mehta, appearing foWest Bengal Coal Scam: Delhi High Court again adjourns Trinamool Congress MP Abhishek Banerjee’s plea seeking quashing of ED summons CBI, refuted this and stated that the provisions of PMLA override the provisions of CrPC. He stated:
“Here is one plea filed by a gentleman and one filed by a lady, who have challenged the summons issued under Section 50 of PMLA. There are two questions which arise here, can the Supreme Court or High Court or any other Constitutional Court interdict the proceedings at the stage of summons? It’s like saying, I’m not getting married to this woman, I’m only solemnizing the marriage.”
SG Mehta further submitted the agency has been dealing with Courts on similar issues on a daily basis and the Courts had not been interfering.
Petitioners
Senior Advocate Kapil Sibal submitted that ED is entitled to investigate under the Prevention of Money Laundering Act, but at this time, it is not clear if the petitioner is being investigated as an accused or a witness, as the summons issued are under Section 50 PMLA, following the principles under Section 160 of CrPC.
He further submitted that under Section 160 of CrPC, the investigators are compelled to carry out their investigation from the jurisdiction of the place, where the offence took place or the place where the accused was residing.
Senior Advocate Sibal said, “I am not challenging your right to investigate, I am not challenging your right to interrogate me, I am not challenging your right to arrest me, in the case there is anything against me. I am not asking for a blanket order, for no coercive steps. What I am saying is, please interpret Section 160 of CrPC in the context of Section 65 of PMLA.”
SG Mehta at this point interjected Sibal, stating it was clear that Section 160 applies to the lady and not to the gentleman.
Sibal refuted the Solicitor General and quoted Section 160 of CrPC to explain the Section applied to the gentleman and the Proviso as well as the Section applied to the lady.
“160. Police officer’ s power to require attendance of witnesses.(1) Any police officer, making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who, from the information given or otherwise, appears to be acquainted with the facts and circumstances of the case; and such person shall attend as so required:
“Provided that no male person under the age of 15 years or woman shall be required to attend at any place other than the place in which such male person or woman resides.(2) The State Government may, by rules made in this behalf, provide for the payment by the police officer of the reasonable expenses of every person, attending under sub- section (1) at any place other than his residence,”
-said Sibal.
He then went on to refute the argument made by the Centre that CrPC does not apply as ED has an all India jurisdiction. He placed reliance on Ashok Munilal Jain and Ors vs Assistant Director, Directorate of Enforcement (2018), where the apex court had held, “We, thus, do not agree with the opinion of the High Court that the provisions of Section 167(2) Code of Criminal Procedure would not be applicable to the proceedings under PMLA Act.”
He said Section 65 of PMLA states,
“The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply, in so far as they are not inconsistent with the provisions of this Act, to arrest, search and seizure, attachment, confiscation investigation, prosecution and all other proceedings under this Act (PMLA).”
Sibal then relied on Section 65 of PMLA to state that none of the provisions of PMLA are inconsistent with Section 160 CrPC. He further refuted the claim that the petitioner is seeking anticipatory bail and stated that ED had the right to carry out investigation, search, seizure and arrest at Kolkata. He further refuted the claim made by the Centre that there was no breach of Fundamental rights. Adherence to Section 160 of CrPC is adherence to a procedure established by law and hence, is under the protection of Article 21 of the Constitution of India, he added.
Sibal then pointed the courts attention to Section 6 of PMLA stating, the act provides for separate jurisdiction for adjudication and investigation.
At this point, SG Mehta interjected and stated, “Your Lordships must have watched it on TV, whenever law enforcing agencies exercise their statutory powers in Kolkata, your lordship knows what happens, who runs where, riots and stone pelting. One line argument is come to Kolkata.”
Sibal replied, “The way you have used agencies to target the people who are opposed to you.” Sibal sought the SG not to muddy the water and engage in legal arguments, rather than political statements.
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SG Mehta replied, “These are avertments made by me in a petition filed by CBI, seeking transfer, saying the CBI office was gheraoed (surrounded). The Chief Minister with other ministers barged into, laid a siege, officers were not permitted to get out.”
Sibal further argued that just because the petitioners had an address in Delhi does not mean they reside in Delhi and concluded by implying that the Centre was selectively leaking parts of the investigation, in order to malign the petitioners. “Only the IO knows when he is going to call me, but obviously in this case, the correspondents of Times Now know it, earlier than I do,” he remarked.
Senior Advocate Sidhartha Agarwal, supplementing the arguments made by Sibal for the petitioners submitted that if it was any other case, apart from PMLA, could an officer sitting in Delhi dictate out a summon directing a witness, residing in another state, to come before it and answer questions.
Agarwal further submitted that he agreed with the need of investigation and the powers of IO, but pointed out that every citizen of this country is protected by the judicial organ, the first level of the said protection is at the level of ‘Ilaka Magistrate’.
He added that the petitioners are under the protective umbrella of Ilaka Magistrate, where they reside. Further, they are under the protective umbrella of the High Court of appropriate jurisdiction, pursuant to this, an accused is taken in front of the Judicial Magistrate with jurisdiction of the place, where he is picked up from, as that court is responsible for the well-being of the accused.
Mr. Agarwal:
“No Executive authority can demand, as a matter of right, that I pick myself up, unclothed from protection and come to a foreign place. It is as foreign to me, wheter it is 2 K.M, 20 K.M or 2000 K.M.”
Mr. Agarwal is to continue his submissions, when the matter is next taken up by the Delhi High Court.
Abhishek summoned thrice by ED
Abhishek had been summoned by ED for the third time on September 21. He has previously responded to the first summon and was quizzed for nine hours on September 6 in New Delhi. He could not respond to the second summon, as only a one-day notice was issued to him.
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At the outset, CBI, Kolkata had registered a First Information Report in November last year, on the allegations that an illegal coal pilferage was taking place at the Eastern Coalfield Ltd Mines in the area of West Bengal. During investigation into the matter, it was revealed that Abhishek, along with West Bengal PWD and Law Minister Moloy Ghatak, had received kick-backs from funds obtained in the alleged illegal mining scandal.
The petition filed by Abhishek further sought directions to the ED, not to issue summons to the petitioners for their appearance and not compel the petitioners to join the investigation in the West Bengal Coal Scam case.
The petition averred that Banerjee and his wife have neither been named in the CBI FIR, nor in the complaint filed by ED under Section 45 of the Prevention of Money Laundering Act (PMLA), 2002. Further, the petition contended that the Head of Investigative Unit of ED has no jurisdiction to assume investigative powers in respect of allegations of money laundering arising in respect of the scheduled offence, as the same could only have been investigated into by the concerned zonal office at Kolkata.
The petition further alleged that ED was carrying out a biased investigation and is selectively leaking information to the media with the intent of harming the reputation of Banerjee.
“The petitioners further have serious apprehensions about the fairness of the investigation being conducted by the Respondent, owing to the fact that the Respondent is adopting a pick and choose attitude with respect to certain persons and is giving undue benefit of protection to complicit individuals and in return extracting false, baseless and malicious statements from them. The Respondent agency is also selectively leaking information to the media with the intent of harming the reputation of the petitioners and encouraging a media trial, the details of which are further elaborated in the accompanying petition, in order to falsely embroil the petitioners in baseless and scandalous allegations. The petitioners, therefore, have a genuine apprehension of being coerced, threatened and falsely implicated in the instant case,”
-added the plea. The matter has been listed for further hearing on October 1.