Supreme Court Reserves Orders On Plea By Abhishek Banerjee, Wife Challenging ED Summons In Coal Scam Case

The Supreme Court today reserved verdict on a plea filed by TMC MP Abhishek Banerjee and his wife-Rujira Banerjee challenging Enforcement Directorate's summons in relation to a coal scam case. The duo, which claimed Calcutta to be its ordinary place of residence, challenged the ED summons insofar as they required attendance at New Delhi.

A bench of Justices Bela M Trivedi and Satish Chandra Sharma was dealing with two petitions - one, filed by Abhishek Banerjee and his wife-Rujira, and second, filed by ED against Banerjee's assistant Sumit Roy.

Senior Advocate Kapil Sibal led arguments for Abhishek Banerjee, and Rujira Banerjee was represented by Senior Advocates Dr Abhishek Manu Singhvi and Gopal Sankaranarayanan. Insofar as ED is concerned, submissions were made by Additional Solicitor General SV Raju and Advocate Zoheb Hossain.

An account of previous hearings can be read here.

During today's hearing, Hossain argued that Section 50 PMLA is not pari materia to Section 160 CrPC and up till arrest, provisions of PMLA are to hold the field if there is inconsistency with any other law.

Contrasting the provisions, Hossain submitted that Section 50 PMLA does not have the limitations contained in Section 160 CrPC (such as on territorial jurisdiction) and while only witnesses can be called under Section 160 CrPC, anyone can be summoned under Section 50 PMLA.

"It does not come hedged with limitations in S.160. S.50 being a special provision will prevail. Not only because of Sections 65 and 71 PMLA, but also Sections 4,5 of CrPC", he said.

In support, Hossain cited the decision in CBI v. State of Rajasthan, where as per him, a similar issue was raised and the Supreme Court took the view that CrPC was ousted, and special provisions of Foreign Exchange Regulation Act were to apply.

On facts of the present case, the counsel claimed that proceeds of crime were transferred to Delhi, and that also gave jurisdiction to ED at Delhi: "In our counter, we have stated that Rs.168 crores were transferred to Delhi and overseas...Transfer of proceeds of crime to a particular place also assumes jurisdiction...(therefore) Delhi assumes jurisdiction".

When Sibal took to rejoinder submissions, he urged that ED did not address the primary issue that PMLA does not provide any "procedure" for summoning and hence CrPC provisions shall apply.

Countering Hossain, the senior counsel cited the decision in Nandini Satpathy v. PL Dani and said that Section 160 CrPC applies to both witnesses as well as accused.

Insofar as the ED relied heavily upon the decision in Vijay Madanlal Choudhary (VMC), Sibal claimed that the observations in VMC were not being contested in the present case. If there is inconsistency between PMLA and CrPC provisions, the special law will prevail and there was no dispute in that. The only issue was that PMLA does not stipulate a procedure for summons and as such, there is no inconsistency with CrPC.

"I am not disputing any of this. What I am saying is how is interrogating me in Calcutta inconsistent with...they have not answered the issue of territorial jurisdiction under S.50(1) PMLA. VMC is not some appellation in the sky!" Sibal said.

So far as ASG Raju mentioned during the last hearing that Abhishek Banerjee suppressed his Delhi address, which gave jurisdiction to ED even if CrPC provisions were to apply, Sibal argued that the same was a "Member of Parliament's" address, which is different from actual residence.

"My ld. friend pointed out that in a letterhead, my MP address is given...residence can't be determined by MP residence. All summons have been sent to me in Calcutta. MPs go for the session and come back. Every summon sent in Calcutta. Suddenly they find that I reside in Delhi", Sibal said.

The senior counsel also argued that ED's stance was not clear, inasmuch as it was going back and forth on whether or not CrPC provisions were to apply.

"Why are they inviting concept of residence from CrPC when they say CrPC does not apply? They are now using CrPC which they say can't be used prior to arrest."

Contesting the agency's reliance on CBI v. State of Rajasthan, Sibal also urged that in FERA, unlike CrPC, there is in fact an inconsistent provision (Section 40). As such, the decision was of no help to ED.

He concluded with the following remarks,

"They have not answered basic question what is the prejudice caused to them for interrogating me in Calcutta. They haven't been able to show. They say I'm not accused. If they want information, they can come and ask. Already interrogated me in Calcutta...Procedure can't be will of authority. A special statute which does not have procedure is "procedure established by law" under Article 21 according to them. How power to summons includes power to summon anywhere - is not answered. This is a matter where ED is using a procedure inconsistent with Article 21 and CrPC. This summons shall be struck down."

Supplementing Sibal, Singhvi addressed the court on behalf of Rujira Banerjee and said that if the safeguard accorded to women under Section 160 CrPC is not to apply, the agency has to show why that protection has to be specifically excluded. He further submitted that interrogating Rujira at Calcutta or through video conferencing will not hamper the case at this pre-nascent stage.

"No compelling circumstances pleaded by ED. She is a woman with 2 minor children...not an accused...", Singhvi said.

The senior counsel also cited a plethora of judgments, including DK Basu v. State of West Bengal, Kartar Singh v. State of Punjab and Maneka Gandhi v. Union of India, and submitted that now the standard under Article 21 of the Constitution has risen to "substantive due process".

Before the end of hearing, Hossain briefly addressed the court to respond to the petitioners' submissions. He submitted that Section 50 PMLA has to be constitutionally-compliant, not CrPC-compliant, and where the Legislature wanted to carve out an exception in favor of women under PMLA, it did. But otherwise, the safeguard cannot be read in by way of judicial intervention, else it would amount to judicial legislation.

"S.50, unlike S.160 CrPC, does not carve out any special exception....Legislature carved out exception for women in S.45. Parliament has chosen not to carve out exception under S.50 PMLA. It's a policy decision", Hossain said.

He contended that sometimes, even women are at the forefront of crimes, and as such, the Legislature's not importing the safeguard into Section 50 PMLA has to be deemed as "conscious omission".

The counsel also added: "S.50 also provides procedure. Not just power. Please see the manner in which they are being asked to come and produce...The argument that accused can't be called, has been dealt in VMC".

Ultimately, the bench reserved its judgment in Abhishek Banerjee and Rujira Banerjee's case.

Background

The petitioners (Abhishek Banerjee and his wife Rujira) moved the Supreme Court against ED's summons in relation to the school jobs scam probe, which required them to appear at New Delhi ie outside their ordinary place of residence.

In March, 2024, after the Court pointed out that Abhishek Banerjee had not been summoned since 2022 and was set to contest then upcoming general elections, ED agreed to not summon him till July.

Subsequent hearings saw the counsels address arguments on the extent of applicability of the Code of Criminal Procedure (CrPC) to the proceedings under the Prevention of Money Laundering Act (PMLA).

While the Banerjees' case was that there was no procedure for summoning provided under the PMLA and hence CrPC ought to prevail (there being no inconsistency), ED claimed that PMLA is a special statute which overrides the CrPC; as such, the Banerjees could be summoned to Delhi.

Some of the arguments made by Sibal on behalf of Banerjees were as follows (i) on subjects where PMLA is silent, the Code of Criminal Procedure will apply, (ii) in the context of summoning of an accused, there has to be a "procedure established by law" (in terms of Article 21 of the Constitution) and absence of procedure is no "procedure", (iii) insofar as ED is concerned, statutory provisions and instructions divide the country into regional offices, which ought to perform the duties under PMLA.

On the other hand, ASG Raju argued for ED that: (i) safeguard in favor of women (under proviso to Section 160 CrPC) does not extend to all provisions of the CrPC (such as Section 91) (ii)  police officers carry out preliminary enquiries prior to registration of FIR (which power was discussed in Lalita Kumari's case) and such enquiries do not amount to "investigation" under Chapter 12 CrPC (iii) summons were not bad on the ground that ED did not inform the capacity in which Banerjees were summoned because it's a legal question and the agency is not obligated to inform.

Case Title: ABHISHEK BANERJEE AND ANR. Versus DIRECTORATE OF ENFORCEMENT, Crl.A. No. 2221-2222/2023 (and connected case)

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