Can ED Summon Abhishek Banerjee To Delhi Regarding Jobs Scam Case In Bengal? Supreme Court Continues Hearing

The Supreme Court on Thursday (August 8) continued hearing TMC MP Abhishek Banerjee's plea against ED summons in a school jobs scam case. The crux of the issue is whether the ED could summon Banerjee to Delhi in relation to the school jobs case in West Bengal. Arguments were made on the extent of applicability of the Code of Criminal Procedure (CrPC) to the proceedings under the Prevention of Money Laundering Act (PMLA).

A bench of Justices Bela M Trivedi and Satish Chandra Sharma, after hearing submissions on behalf of Additional Solicitor General SV Raju, as well as Senior Advocate Kapil Sibal (for Banerjee), re-listed the matter on August 13.

The hearing began with Sibal recapitulating his previous arguments ie (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.

Sibal took the court through judicial precedents such as Rana Ayyub v. Directorate of Enforcement, where the issue of territorial jurisdiction arose. Citing the judgment, he said that trial must go on where the offence of money laundering is committed.

The senior counsel further argued that Section 71 PMLA, which gives an overriding effect to the provisions of the Act in case of an inconsistency with provisions of any other law (such as CrPC), has to be read in tune with Sections 46(1) and 65 PMLA.

Contrasting the PMLA with the National Investigation Agency Act, Sibal pointed out that the latter provides an all-India jurisdiction but the former does not. Yet, ED officials often summon persons, who are not even accused, to far-off places just because ECIR has been registered there.

Thereafter, the senior counsel adverted to the impugned judgment of the Delhi High Court (in Banerjee's case), and argued that the HC did not apply the test of Section 65 PMLA correctly.

After Sibal concluded arguments, Senior Advocate Gopal Sankaranarayanan took to submissions on behalf of Banerjee's wife-Rujira. He argued that Rujira was covered by the proviso to Section 160 CrPC, which states that "no male person under the age of fifteen years or above the age of sixty-five years or a woman or a mentally or physically disabled person shall be required to attend at any place other than the place in which such male person or woman resides".

It was Sankaranarayanan's contention that insofar as the safeguards accorded to women in the context of summoning, provisions of the CrPC shall apply. He pointed out that the ED is the investigating agency under 5 different legislations and not just the PMLA. Yet, only under the PMLA regime, the protective umbrella of CrPC provisions has been taken away, while CrPC continues to apply to the other statutes (viz. Foreign Exchange Management Act, Foreign Exchange Regulation Act, Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, etc.)

"ED morphs into a very unique creature under PMLA where protective umbrella of CrPC is taken away...they can ask children aged 6 years to come from Tripura all the way to an ED officer sitting in Cochin if he wants to, because he has registered the ECIR there...and say come...and not even as an accused young man...but I want you as a witness, you have to come. When they argue Article 14, 21, ED says sorry that does not apply to us because of PMLA," Sankaranarayanan said.

Following him, submissions were advanced by the ASG, who argued that the safeguard in favor of women (under proviso to Section 160 CrPC) does not extend to all provisions of the CrPC (such as Section 91).

The ASG's case was that the safeguard only applies to Chapter 12 CrPC, and nowhere in the Code is it stated that the proviso shall apply to each and every enquiry.

It was urged that 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.

The ASG also countered the petitioner's submission that summons were bad because ED did not inform the capacity in which he was summoned, by saying that it's a legal question and the agency is not obligated to inform.

Lastly, pointing to a reply sent in response to ED summons, the ASG claimed that Banerjee suppressed from the court that he has a Delhi address. Therefore, even if procedure under Section 160 CrPC is applied, he could be summoned in Delhi.

"Even if the proviso is held to be applicable, it is complied with because he resides in Delhi. He is saying I can't be called at any other place, the proviso says you can't be called outside the place where you reside. He resides in Delhi. Also, part of the offense has taken place in Delhi", said the ASG.

Earlier proceedings

On the last date, Sibal had submitted that ED officials initially interrogated Banerjee in Kolkata, so what was the need now to summon him to Delhi. He further informed that although the case falls within the territorial jurisdiction of Kolkata, ED officials summoned the petitioner to New Delhi. In this context, reference was made to the order passed by the Supreme Court in May 2022 directing the ED to interrogate Banerjee at Kolkata and asking the State Police to ensure assistance.

Sibal took the court through certain provisions of the PMLA, including Sections 18, 19, 50, 65, 71 and Chapter 5, to contend that "procedure to summon" was absent in the statute. Since the PMLA is silent about the procedure on summons, the general provisions of the CrPC will apply.

As he was referring to power to arrest under Section 19, Justice Trivedi commented that no arrest has yet been made in the present case. However, Sibal countered that the ED officials are calling Banerjee and saying he is an accused.

It was also contended that Article 21 of the Constitution guarantees the right to personal liberty, which can be curtailed only in accordance with “procedure established by law”. Emphasizing that PMLA does not prescribe a procedure for summoning, Sibal said that summoning by ED is not in accordance with a “procedure established by law”.

Towards the end, Sibal raised issues regarding the Supreme Court's findings in Vijay Madanlal Choudhary v. Union of India. He submitted that the larger issue as to whether provisions of the Code of Criminal Procedure apply to PMLA proceedings also arises in the case and the same is pending adjudication before a three-judge bench of the court.

Among other things, it was contended that the difference between “proceeds of crime” and “money laundering” has been eliminated due to the enactment of the Finance Act, 2019 which added the explanation to Section 3 (Offence of Money Laundering).

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