West Bengal Coal Scam Case: Delhi High Court Dismisses Plea By TMC MP Abhishek Banerjee, His Wife Seeking Quashing Of Summons

The Delhi High Court on Friday dismissed the plea by All India Trinamool Congress MP Abhishek Banerjee and his wife seeking quashing of summons issued to them by Enforcement Directorate in connection with West Bengal coal scam case.

Justice Rajnish Bhatnagar also dismissed the plea by Banerjee's wife Rujira Banerjee assailing the complaint filed by Enforcement Directorate against her in the money laundering case and the Trial Court order taking cognizance of the said complaint. The plea also assailed the subsequent issuance of summons against her for physical appearance.

The CBI had registered an FIR in respect to alleged offences of illegal mining and theft of coal from the leasehold areas of Eastern Coalfields Ltd committed in the state of West Bengal by certain individuals. Pursuant to this, ED has registered an ECIR in the Head Investigative Unit located in New Delhi.

About Plea by Abhishek Banerjee and Rujira Banerjee

The duo, permanent residents of Kolkata, were directed to appear before ED for interrogation in Delhi. They had moved the High Court in September last year, claiming that that the agency cannot assume investigative powers in respect of allegations of money laundering arising in the scheduled offence as the same could only have been investigated into by the concerned zonal office at Kolkata.

The petition stated that both Banerjee and his wife have not been named neither in the CBI FIR nor in the complaint registered by the ED in New Delhi under sec. 45 of PMLA.

The plea therefore stated that the agency "cannot assume investigative powers in respect of allegations of money laundering arising in the scheduled offence as the same could only have been investigated into by the concerned zonal office at Kolkata."

In view of this, the plea sought to quash summons issued by the ED dated 10th September 2021 under sec. 50 of the Prevention of Money Laundering Act, 2002 and further directing ED to not summon them in New Delhi and to carry out any further examination qua the two in Kolkata, West Bengal.

Senior Advocate Kapil Sibal appearing for the petitioners argued that only the National Investigating Agency had 'All India jurisdiction'. He had pointed out that the police authorities are bound to their own jurisdictions under Section 160 (Police officer' s power to require attendance of witnesses) of CrPC. Similarly, it was submitted, ED has zonal and regional jurisdiction as described under the Prevention of Money Laundering Act, 2002 ('PMLA'). In this regard, he referred to Section 65 of PMLA which states that provisions of CrPC are to apply.

ED on the other hand has argued that the case is being probed by its Headquarter Investigative Unit which has All India jurisdiction.

ASG S V Raju representing the agency argued that the ED has followed the prescribe procedure for summoning the petitioners for interrogation. He submitted that ED officials are not police officers and hence, Section 160 of CrPC is not applicable in the case. He also submitted that Banerjee is a Member of Parliament and has a residence in Delhi. Hence also, the case is liable to be dismissed.

The Court analyzed the respective scheme of the PMLA and the CrPC. It said that the CrPC clearly points towards the territorial limitations imposed on police officers in terms of the exercise of their jurisdiction and that such jurisdiction appears to be limited to their respective local areas (except in certain situations) falling under their respective police stations.

The Court added that on the other hand, a perusal of the PMLA would provide that the authorities under Section 48 of the Act, in the exercise of their powers under the PMLA are not territorially restricted in the manner envisaged under the CrPC.

"From a perusal of the same, it is clear that the legislature has created a separate machinery in order to deal with a specific offence and, despite being aware of the territorial limitations in the CrPC, the legislature chose not to incorporate those limitations in the PMLA. Admittedly, certain sections of the PMLA like Section 6, Section 16 and Section 44 refer to territorial jurisdiction in specific circumstances, no other provision of the PMLA, especially the provisions concerning the investigative powers of the authorities under the Act provide for any such territorial limitation," the Court said.

It added "Therefore, it is clear that the authorities under the PMLA are not restricted as per the territorial caskets envisaged under the CrPC and would naturally exercise jurisdiction depending upon the exigencies of special investigation. This is so in view of the nature of the offence being dealt with by "the authorities" under the PMLA which may not be localized like IPC offences."

Therefore, the Court opined that while CrPC provide for a procedure to deal with offences under the IPC and imposes territorial limitations on police officer, the PMLA while establishing a national investigative agency, does not incorporate any such territorial limitations.

"In light of the above, it is amply clear that Section 50 of the PMLA and Section 160 of the CrPC cannot operate together and there appears to be a clear inconsistency between the two. It is also clear that there would be a difference in the evidentiary value of the evidence collected under Section 50 of the PMLA as opposed to the evidence collected in Section 160 of the CrPC. To apply both the provisions together would be statutorily and logically not possible and may lead to absurdity," the Court said.

Importantly, the Court observed the following:

- From a bare reading of the said provisions along with the scheme of the PMLA, it is clear that 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.

- 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 the 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. The PMLA being a special criminal enactment providing for a separate investigative procedure and power, it is imperative that due meaning and regard is given to the provisions of the PMLA in its totality and the said provisions are allowed to operate in their full force on their own.

- Therefore, undoubtedly the judgment of the Hon'ble Supreme Court in Ashok Munilal Jain (supra) is a binding authority as far as the applicability of Section 167 of the CrPC is concerned however, the ratio of the said judgment would not carry the case of the Petitioners any further in view of the fact that Section 50 of the PMLA and Section 160 of the CrPC operate in the same field and have inconsistencies between them as pointed out above.

- Considering that Section 50 of the PMLA specifically refers to „any person‟ which would include a woman, the special provision in Section 160 CrPC available to a woman would not apply in view of the overriding provision in Section 71 of the PMLA. To apply proviso to Section 160 CrPC concerning a woman to a summons issued under Section 50 of the PMLA would amount to curtailing the powers of the authorized officer under the PMLA, which extends to all persons and has not been statutory limited either on the basis of territory or on the basis of the gender of the person.

- The offices of the Directorate of Enforcement cannot be said to be police station under the meaning of Section 2(s) of the CrPC.

- If the proviso to Section 160 CrPC is made applicable to Section 50 of the PMLA, the said provision may become unworkable as often women would have to be summoned in order to carry out the functions vested under the Act over and beyond the investigative powers under the Act. Such an interpretation would defeat the very object of the Act.

"Though the issue in the present two petitions pertain to applicability or otherwise of Section 160 of CrP Code, the question about applicability of Chapter XII itself [in which section 160 forms part] is pending consideration in a batch of petitions before Hon'ble Supreme Court of India in Vijay Madanlal Choudhary and ors versus Union of India and ors. and other cognate matters. However, considering the very nature of the investigation under PMLA, this question needs to be examined and decided. Considering the very nature of PMLA, 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," the Court said while dismissing the petition.

About Rujira Banerjee's Plea

Senior Advocate Kapil Sibal appearing for the petitioner argued that the complaint filed by Enforcement Directorate against her was arbitrary, false and abuse of the process of law.

The petition was opposed by Amit Mahajan appearing for ED.

The plea stated that the fact that Rujira Banerjee was in constant dialogue with the agency in relation to the aforementioned summons clearly showed that there was no intention on her part of to disobey the same.

The petition further averred that the trial court took cognizance and issued summons on the complaint in a mechanical manner and without any application of mind.

The Court dismissed the petition on the basis of aforesaid observations.

Title: ABHISHEK BANERJEE & ANR v. DIRECTORATE OF ENFORCEMENT and other connected matter

Citation: 2022 LiveLaw (Del) 196

Click Here To Read Order