TMC MP Abhishek Banerjee Moves Supreme Court Against Delhi HC's Refusal To Quash ED Summons

The Supreme Court on Tuesday agreed to hear next week the plea filed by All India Trinamool Congress MP Abhishek Banerjee and his wife challenging Delhi High Court's order refusing to quash summons issued to them by Enforcement Directorate in connection with West Bengal coal scam case.

The impugned order 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

A Bench comprising CJI NV Ramana, Justice Krishna Murari and Justice Hima Kohli agreed to hear the matter next week after a request for urgent listing of the special leave petition was made by Senior Advocate Kapil Sibal on behalf of the petitioners.

As an interim relief, the petitioners have sought an ad-interim ex-parte stay of operation of the impugned order dated 11.03.2022 passed by the Single Judge of the High Court of Delhi.

Further, directions have been sought to the ED to summon the Petitioners under Section 50 PMLA only at Kolkata (for Abhishek Banerjee) or only at their residence (for Rujira Banerjee), exempt Rujira Banerjee's personal appearance and allow her to appear through counsel before the Trial Court. 

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.

The petition filed through Advocate Sunil Fernandes has argued that the impugned order holds that Section 50 of the PMLA and Section 160 CrPC are in conflict with each other and the Petitioners cannot avail any benefit of Section 160 CrPC and shall be governed by Section 50 of the PMLA, which does not provide that a witness must be examined in his/her local area, as Section 160 CrPC does.

"Thus the substantial question of law, having great public importance that arises for the kind consideration of this Hon'ble Court in the instant petition is whether the Respondent-ED can assume a pan-India jurisdiction, to summon any person, without indicating to such person as to whether they are being summoned as an accused/ suspect or as a witness, at any place of their choice, under the purported garb of Section 50 of the PMLA, in utter derogation of the Fundamental Rights of the witness/accused persons, salutary principles of fairplay and expeditious investigation, and the extant provisions of the CrPC and the PMLA." the petition states.

According to the petitioner, the order fails to appreciate that powers under Section 50 PMLA have to be exercised in conjunction of Section 160 CrPC and not in derogation thereof. Further it has been submitted that the PMLA does not contemplate the method or manner of examination of witnesses/accused under Section 50 PMLA, and therefore when such manner is specifically prescribed under Section 160 CrPC, the same squarely applies to the operation of Section 50 PMLA.

The petitioners have argued that the impugned order virtually vests unfettered pan-India mandate on the ED and gives it uncanalised power to operate de hors the well-established and long- standing principles of criminal jurisprudence pertaining to territorial jurisdiction vis-a-vis place of occurrence of offence, cause of action, and residence of accused persons and summoned persons etc.

According to the petitioners the impugned order fails to appreciate that the Petitioners are permanent residents of Kolkata and that the entire alleged cause of action and the place of alleged offence, is in the State of West Bengal.

The petitioners have argued that it is inconceivable as to how the Impugned Order could permit investigation of the present case at New Delhi, under the 'superfluous ground' that the Headquarters of the ED is located in New Delhi.

According to petitioners, the provisions of PMLA or even CrPC does not contain any enabling provision for the investigation to be conducted at the "Headquarters" of the Investigating Authority, de hors the cause of action. 

"Such pan-India power being arrogated to the Respondent would militate against the provisions of the CrPC relating to jurisdiction of Magistrates/ Special Judges, and would have the propensity to cause havoc during the course of investigation, and even more, during trial." the petition states

The petition argued that the impugned Order chooses to ignore the clear uncontroverted facts, of which it ought to have taken judicial notice, that the Banerjee is an important opposition leader and is being targeted by political party in Centre by using Central Investigative Agencies.

He is the National General Secretary of the All-India Trinamool Congress Party which is one of the principal opposition parties to the political party in power at the Centre and was a leading figure in Assembly Elections in the State of West Bengal in April/May 2021 wherein TMC comprehensively trounced the political party at power in the Centre, thereby giving justifiable cause to "target" and "fix" Banerjee by misusing the Central Investigation Agencies.

Case Title: ABHISHEK BANERJEE & ANR v. DIRECTORATE OF ENFORCEMENT SLP (Crl) 2806/2022