Accused's Counsel Can't Directly Contact Probe Agencies/IOs Sans Court Permission: Allahabad HC Objects To Lawyers' Mails To ED

Noting that counsels' sending emails directly to the Investigating Officer was not proper and could not be appreciated, a bench of Justice Samit Gopal observed that reminding the authorities of the court's order and requesting them to comply with it is not in the realm of the duties of counsel appearing in the matter.

In this regard, the Court also referred to “Standards of Professional Conduct and Etiquette to be Observed by Advocates” [Made by the Bar Council of India under Section 49(1) (c) of the Advocates Act, 1961] in Section III “Duty to Opponent” in para34, which states thus:

“34. An Advocate shall not in any way communicate or negotiate upon the subject matter of controversy with any party represented by an Advocate except through that Advocate.”

Though the applicant's counsels sought to contend that the emails sent were only a reminder to the agency to comply with the Court's order, the single judge discarded this contention.

The court clarified that if the accused's counsel wished to highlight that the counter affidavit, as directed by the court, had not been filed by the ED and the same should be filed, the appropriate course of action was to bring the matter to the court's attention when the case was next heard, and not communicate with them directly.

“A counsel cannot identify himself with his client. He cannot interact directly with agencies like Investigating Officer, etc. unless and until ordered so by a court particularly with regards to sub judice proceedings. Interacting directly with agencies, Investigating Officers, etc., is not the duty of a counsel appointed by an accused. He is to represent him in Court only. His work is to assist the Court. An order passed by a Court is expected to be followed and complied with by parties and if any party has any grievance against the other, the proper procedure is to apprise the Court about it,” the Court remarked.

The court made these observations while granting bail to Delhi-based oil firm promoter Padam Singhee, who is facing an Enforcement Case Information Report (ECIR) under Section ¾ of the Prevention of Money Laundering Act, 2002.

As per the allegations, the accused applicant cheated Punjab National Bank to the tune of Rs 252 crore by taking a loan in the name of M/s SVOGL Oil Gas & Energy Limited. The money was then transferred to various shell and dummy companies under the guise of expenses and syphoned off by the promoters, including the applicant, before the HC.

Before the HC, his counsel argued that the applicant was the company's Joint Managing Director who took a loan that was not repaid, and the company's loan account was declared NPA with retrospective effect from December 26, 2013.

After that, Punjab National Bank lodged a complaint, and the CBI lodged an FIR against the accused-applicant under Sections 120B r/w 409 & 420 I.P.C. and Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988, the predicate offence.

In this FIR, the Special Judicial Magistrate (CBI), Ghaziabad, granted the applicant bail in May this year, and that order has not been challenged.

Against this backdrop, it was argued that the trial in the predicate offence would be delayed since the charge sheet has yet to be filed, and the present matter is also to be tried together by the same court. Thus, it was prayed that the accused-applicant could be granted bail as he has already been granted bail to the accused in the predicate offence.

On the other hand, the Enforcement Directorate's counsel argued that the complaint under the PMLA concerns proceeds of crime as after receiving funds from the bank, the money was transferred to shell companies and siphoned off.

It was also contended that a joint trial is not required under Section 44(1)(c) of the PMLA and a charge sheet in the predicate offence is not necessary and therefore, the prayer for bail should be rejected.

After having heard learned counsels for the parties and perusing the records, the court found it a fit case to grant bail on the following grounds:

• The applicant is in custody in connection with an offence under the Prevention of Money Laundering Act, and in the predicate offence, he has been granted bail. The said order remains final to this date.
• To date, no charge sheet has been submitted in the predicate offence regarding the present issue committed relating to Punjab National Bank.
• The case under PMLA and the predicate offence have to be tried together by the same court, which is not possible in the present case as of now since the predicate offence is yet to see its charge sheet, if any.
• The challenge to declaring M/s SVOGL Oil Gas & Energy Limited as “Wilful Defaulter” and its account as “Fraud” was successful and the same was struck down by Delhi High Court. The said order also attains finality.
• Custodial interrogation is not needed. The principle of “bail is a rule and jail is an exception” is being consistently followed and repeatedly reiterated and reminded by the Apex Court and other Courts.
• The applicant has been in jail since February 07, 2024, and there is no chance of his absconding.