Madras HC dismisses Nalini Chidambaram plea against personal appearance before ED

The Madras High Court on Tuesday dismissed the petition filed by Senior Advocate Nalini Chidambaram against summons issued for her personal appearance before the Enforcement Directorate (ED), Kolkata, as a witness in the Saradha Chit Fund scam..The summons in question had been issued by the ED in September 2016, under Section 50 of the Prevention of Money Laundering Act (PMLA), 2002..In Chidambaram’s challenge to the same, it was argued that the ED’s powers were subject to Section 160 of the Code of Criminal Procedure (CrPC), 1973. Section 160 provides inter alia that a woman cannot be required to attend an investigation at any place other than the place in which she resides..It was also argued that Chidambaram’s personal presence was not required in the case, and that repeated insistence on her personal appearance before the ED amounted to harassment..Justice SM Subramaniam however took that view that Section 160 cannot be applied as a matter of routine or as a strait jacket formula. It was opined that such concessions provided in the CrPC were not absolute in nature..Rather, concessions had to be interpreted in a constructive and pragmatic manner. Following such interpretation, Section 160 was taken to mean that the Investigating Officer may dispense with personal appearance in genuine cases, depending on facts and circumstances. The Court found that when it comes to concessions,.“Constructive interpretation of such provisions are mandatory…In normal circumstances, every such exemption can never be construed as an absolute prohibition. The exemptions are not mandatory, and subject to the facts and circumstances of each case.”.Justice Subramaniam observed that it is impractical to allow concessions regardless of such factors..“In all the cases of aged person, women, if the authorities have to come over to the residences of the witnesses for the purpose of obtaining statement, this Court is afraid that the very ingredients in Section 160 of the Code of Criminal Procedure is not only abused and will become impracticable… .…it may not be possible for the Enforcement Directorate to travel all over the country, in each and every case for the purpose of recording the statement from the witnesses, and it is not the intention of the Legislation.”.Therefore, Justice Subramaniam found that Chidambaram’s plea against personal appearance on this ground could not be sustained. This was particularly so given the observation that,.“In the present case on hand, the writ petitioner is a Senior Advocate actively practicing before the Hon’ble Supreme Court of India as well as before various High Courts across the country. .Such being the voluntary statement of the writ petitioner, this Court has no reason to believe that such an exemption to be extended to the writ petitioner for the purpose of her non-participation in the investigation process, by appearing in person.”.Interestingly, the judgment also assumed feminist undertones when the Court opined,.“This Court is aware of the fact that in certain circumstances, the women in this country are vulnerable. However, we are a fast growing developing Nation, wherein women empowerment is provided in all walks of life and we are consistently promoting such an empowerment of women in this great Nation. Undoubtedly, now the women are standing on par with the men in all walks of life… .…this Court is of an opinion that in no circumstances with reference to the current day developments of our great Nation, women can never be underestimated or blindly considered as vulnerable. May be in certain circumstances in certain areas, women are vulnerable, however, not in all circumstances in all areas.”.These observations apart, the Court found merit in the argument that the PMLA conferred sufficient powers upon the ED to secure personal appearance, if it is required for personal clarifications. The limited scope of court interference in such matters were also referred to thus,.“…this Court is of an opinion that, when the Investigating Officer is of an opinion that personal clarifications are required in respect of written statements and the documents filed, then the Court would not enter into the arena of such clarifications to be obtained from the person in order to ensure free and fair investigations.”.Further, it was noted that the PMLA, being a special statute, would have an overriding effect over the general provisions provided in the CrPC..On these grounds, the petition was dismissed with a direction that the ED issue fresh summons for continuing the investigation in accordance with law..Arguments in the case were made by Senior Advocate Satish Parasaran for Nalini Chidambaram. The ED was represented by Additional Solicitor General, G Rajagopalan, assisted by Special Public Prosecutor, G Hema..Picture Courtesey: Nalini Chidambaram – The Hindu.Read the judgment: