[West Bengal coal scam] Delhi High Court dismisses TMC MP Abhishek Banerjee, wife's plea challenging ED summons

The Delhi High Court on Friday dismissed the petition filed by Trinamool Congress Member of Parliament Abhishek Banerjee and his wife Rujira Banerjee challenging the summons issued to them by the Enforcement Directorate (ED) in a case related to alleged coal scam in West Bengal [Abhishek Banerjee and Anr v Directorate of Enforcement].

Single-judge Justice Rajnish Bhatnagar also dismissed a separate plea by Rujira Banerjee by which she had challenged the ED’s complaint with the Rouse Avenue court for her non-appearance and the Chief Metropolitan Magistrate’s (CMM) order taking cognisance of the same.

ED had issued summons to both the petitioners on September 10, 2021 seeking their personal appearance in Delhi along with ‘voluminous documents’ in connection with the alleged scam.

It was alleged that the present case involves money laundering to the tune of ₹1,300 crores.

In their petition, the couple had argued that the news of summons being issued was put in public domain even prior to it being served which proved the ED’s mala-fide intentions.

They said that since the petitioners are residents of Kolkata, they can only be examined by ED officers under Section 50 of PMLA at Kolkata.

It was submitted that by virtue of Section 4(2) Code of Criminal Procedure (CrPC) and Section 65 of PMLA, the procedure with respect to arrest, search, seizure, attachment, confiscation and investigation would apply to all investigations under the PMLA.

Therefore, considering the proviso to Section 160 of the CrPC, Rujira Banerjee, being a woman, can only be examined at her residence.

They also stated that under Section 160 of CrPC, a police officer can summon only such persons residing within the limits of their own or adjoining police stations and therefore Section 50 of the PMLA should be read in a manner that ED officer can only summon persons residing within the limits of of their own or adjoining jurisdiction.

The Court, however, held 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.

It said that while Section 160 of CrPC is limited to witnesses (who may become accused in the future), Section 50 of PMLA operates on a larger/broader level and includes the power not only to summon witnesses but to summon and enforce the attendance of any person.

"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.

On the issue of protection granted to women under Section 160 CrPC, the Court said that applying the same to summons issued by ED would amount to curtailing its powers which extends to all persons and is not limited on the basis of territory or gender of the person.

“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.”

Justice Bhatnagar further said that he has found no evidence to substantiate allegations of mala fides levelled by the petitioners and the assertion that certain questions were put in a roving and fishing manner cannot be a ground to allege the same.

With regard to Rujira Banerjee’s challenge to complaint filed by ED with Rouse Avenue court and CMM taking cognisance of the same, the High Court said that the factual issues raised by her can be urged before the jurisdictional court and no case was made out for the High Court to exercise its inherent powers under Section 482 CrPC.

The petitions were, therefore, dismissed.

Senior Advocates Kapil Sibal and Siddharth Aggarwal along with advocates Angad Mehta, Adit S Pujari, Abhinav Sekhri, Arshiya Ghose and Rupin Bahal appeared for the petitioners.

The ED was represented by Solicitor General Tushar Mehta, Additional Solicitor General SV Raju, Central Government Standing Counsel (CGSC) Amit Mahajan and advocates Kanu Agrawal and Kritigya Kumar.

Central Government Standing Counsel Ajay Digpaul and advocate Kamal R Digpaul appeared for Centre.

[Read Judgment]