Whether a witness can be summoned to appear outside his city of residence in case of an offence under Prohibition of Money Laundering Act (PMLA)?

Whether in view of provisions of Section 160 CrPC , a woman can be examined only at her place of usual residence under PMLA?

Delhi High Court in the case of Abhishek Banerjee & Anr Vs Directorate of Enforcement was concerned with the issue as to whether a witness can be summoned to appear outside his city of residence in case of an offence under Prohibition of Money Laundering Act (PMLA) and whether in view of provisions of Section 160 CrPC , a woman can be examined only at her place of usual residence ?

In this high profile case argued by Adv. Kapil Sibal, the question was regarding the appearance of Mr Abhishek Banerjee and his wife Rujira Banerjee in connection with offence involving PMLA and the summons which were issued were challenged under Article 226 of the Constitution of India.

Mr Kapil Sibal arguing for the petitioner relied on the argument that Section 50 of PMLA under which summons were issued was consistent with Section 160 of CrPC and Delhi high court itself in the context of Section 40 of FERA in another judgement had held that the provisions of Section 160 of CrPC would apply.

However, the court rejected all these arguments by observing that the PMLA was a special act where the law makers whenever they wanted have made provisions for specific inclusion of CrPC provisions.

Moreover, the court also held that the decision in the case of Nalini Chidambaram where the Supreme Court has stayed the applicability of Section 50 of PMLA cannot be of any assistance as the order of the Madras High court was still a valid order and only one portion was stayed and that cannot be a binding precedent.

Thus the writ was dismissed.

Though this judgement is in the context of PMLA, the ratio of this decision will be helpful in all such cases where summons are issued to persons under various acts for offences, appearances in person, appearance of females and connected issues.

The copy of the order is as under:

IN THE HIGH COURT OF DELHI AT NEW DELHI 

 Reserved on : 04.02.2022 

Pronounced on : 11.03.2022 

W.P.(CRL.) 1808/2021 AND CRL.M.As. 14972-73/2021  

ABHISHEK BANERJEE & ANR.  

 ….. Petitioners 

 

Through: Mr. Kapil Sibal, Sr. Adv. with Mr.  Siddharth Aggarwal, Sr. Adv., Mr.  Angad Mehta, Mr. Adit S. Pujari,  Mr. Abhinav Sekhri and Ms. Arshiya  Ghose, Advs.  

versus 

DIRECTORATE OF ENFORCEMENT  

…. Respondent 

Through: Mr. Tushar Mehta, SG, Mr. S.V.  Raju, ASG, with Mr. Amit Mahajan,  CGSC with Mr. Kanu Agarwal and  Mr. Kritigya Kumar, Adv.  

 Reserved on : 11.02.2022 

 Pronounced on : 11.03.2022 

 CRL.MC. 2442/2021 AND CRL.M.A. 16069/2021  

RUJIRA BANERJEE                   

  ….. Petitioner 

Through: Mr. Kapil Sibal, Sr. Adv. with Mr.  Siddharth Aggarwal, Sr. Adv., Mr.  Angad Mehta, Mr. Rupin Bahal, Mr.  Adit S. Pujariand Mr. Abhinav   Sekhri, Advocates. 

W.P.(CRL) 1808/2021 & CRL.M.C. 2442/2021 Page 1 of 60 

versus  

DIRECTORATE OF ENFORCEMENT  

…. Respondent 

Through: Mr. Tushar Mehta, SG, Mr. S.V.  Raju, ASG, with Mr. Amit Mahajan,  CGSC, Mr. Kanu Agarwal and Mr.  Kritigya Kumar Kait, Advocates.  

Mr. Ajay Digpaul, CGSC and Mr.   Kamal R. Digpaul, Advocate for UOI.  

CORAM:  

HON’BLE MR. JUSTICE RAJNISH BHATNAGAR 

 JUDGMENT 

RAJNISH BHATNAGAR, J.  

1. The brief facts of the case are as follows :  

a. On 27.11.2020, an FIR/RC was registered by the CBI ACB,  Kolkata bearing No. RC0102020A0022 (“RC”) under Sections  120B and 409 of the Indian Penal Code, 1980 (“IPC”) and  Sections 13(2) read with Section 13(1)(a) of the Prevention of  Corruption Act, 1988 (“PC Act”). The primary allegations in  the RC were that illegal excavation and theft of coal was taking  place in the leasehold areas of Eastern Coalfield Ltd.  (hereinafter referred to as “ECL”) by one Anup Majee @ Lala  with active connivance of certain ECL employees.  

b. On 28.11.2020, ECIR bearing No. 17/HIU/2020 (“ECIR”) was  registered. Various Summons(es) were issued to Petitioners No.  1 and 2 by the Respondent in relation to the ECIR on several  occasions seeking their appearance in New Delhi along with  voluminous documents. Replies were furnished by the  Petitioners to the said Summons(es) which have been annexed  with the Writ Petition. 

c. Summons dated 18.08.2021 was issued seeking personal  appearance of Petitioner No. 1 on 06.09.2021. The Petitioner  No. 1 in compliance of the Summons, joined investigation on  06.09.2021. After Petitioner No. 1 was examined by the  respondent, summon dated 06.09.2021 was issued seeking his  personal appearance on 08.09.2021. Reply dated 08.09.2021  was sent by Petitioner No. 1 stating that he had cooperated with  the investigation conducted by the respondent and would  continue to do so. Petitioner No. 1 further stated that he  appeared before the respondent on 06.09.2021 and sought for  four (4) weeks‟ time for the documents sought in the concerned  summon. Petitioner No. 1 also requested that the investigation  qua him be conducted in Kolkata or via video-conferencing as  he is a permanent resident of Kolkata and the Respondent has a  functional Zonal Office at Kolkata.  

d. Summon dated 10.09.2021 (hereinafter referred to as the  “Impugned Summons”) were issued seeking personal  appearance of Petitioner No. 1. The Impugned Summons was  served on Petitioner No. 1 on 11.09.2021. However, Petitioner  submits that the news about the Summons having been issued  to Petitioner No. 1 was put in public domain prior to the same  being served to him. This, according to the Petitioner, shows  the mala-fide intentions of the Respondent. 

2. The Respondent, on the other hand, countered the factual assertions as  under: 

a. Upon receipt of reliable information about theft of coal and  illegal excavation being done by criminal elements from the  lease hold area of Eastern Coal Field Ltd. (ECL) in connivance  with officials of ECL, CISF, Indian Railways and other  concerned departments, joint inspection was carried by  Vigilance Department and Task Force Officials on several lease  hold areas of ECL from May, 2020 onwards. During this  inspection, several evidences of extensive illegal mining and its  transportation were found. A large number of  vehicles/equipments used in illegal coal mining and its  transportation were seized during these inspections. Seizure of  stolen coal was made from several locations during these raids.  Pursuant to these raids and seizure of stolen material etc., an  FIR bearing no. RC0102020 A 0022 dated 27.11.2020 was  registered by CBI, Kolkatta against Sh. Amit Kumar Dhar, the  then General Manager, ECL and others for the offence under  Section 120B/409 IPC and Sec 13 (2) r/w Sec 13 (1) (d) of PC  Act, 1988. Based on the said FIR and to probe the money  laundering in India as well as internationally (since the ill  gotten money/proceeds of crime have been routed to various  places through non banking channels), the present ECIR was  recorded by answering Respondent/ED.  

b. Upon detailed investigation by ED, it was found out that the  present case involves money laundering to the tune of Rs. 1300  Crores. One of the accused persons Vikas Mishra was arrested  on 16.03.2021 and another accused Inspector Ashok Mishra of  Bankura Police Station was arrested on 03.04.2021, who had  become part of illegal coal mafia and helped coal mafia in  laundering several hundreds of crores of rupees. During  investigation, specific evidences were seized and statements of  the witness and other accused persons were recorded and it was  found out that Inspector Ashok Kumar Mishra has received Rs  168 crores in just 109 days from co-accused Anoop Majee, to  be delivered to his political bosses including Vinay Mishra (co accused) etc.  

c. It was pointed out that Rs 168 crores were transferred through  vouchers to Delhi and overseas. After investigation, complaint  u/s 44/45 PMLA was filed against these two accused persons  before Special Court, PMLA, Rouse Avenue Courts, New  Delhi. The Ld Trial Court took cognizance in that complaint  vide order dated 28.06.2021. It was pointed out that during the  investigation of the above mentioned accused persons, names  of present Petitioners surfaced and thereafter investigation  proceeded accordingly. 

 

d. That the Petitioners while alleging mala fides have neither  named any officer or person against whom mala fides are  alleged nor have they made any officer or person a party to the  proceedings. It is just a tactic to evade/hamper the investigation  being carried out by the officers of the Respondent. 

3. In light of the above, the Petitioners in WP(CRL) No.1808 of 2021  have sought for the following relief: 

“a. Allow the instant petition and pass an appropriate  writ in the nature of certiorari or any other writ, order  or direction setting aside and quashing the Impugned  Summons dated 10.09.2021 under Section 50 of the  Prevention of Money Laundering Act, 2002 issued by  the Respondent in case arising out of ECIR No.  17/HIU/2020 registered by the Respondent and further  directing the Respondent to not summon the Petitioner  1 and 2 in New Delhi and carry out any further  examination of the Petitioner no. 1 and 2 in Kolkata,  West Bengal; and  

b. Pass any other Order(s) this Hon’ble Court may deem  fit and necessary in the interest of justice.” 

4. In CRL.M.C. No. 2442 of 2021, filed by the Petitioner No. 2 in  WP(CRL) No.1808 of 2021, the following facts have been highlighted  by the Petitioner: 

a. Two (2) Summons(es) were issued under Section 50(2) of the  Prevention of Money Laundering Act, 2002 (“PMLA”) to the  Petitioner by the Respondent under the ECIR seeking her  personal appearance in New Delhi along with voluminous  documents. Replies were furnished by the Petitioner to the said  Summons(es).  

b. Summons dated 04.08.2021 was issued to the Petitioner seeking  her personal appearance at the New Delhi office of the  respondent on 13.08.2021 along with documents. The Petitioner  received the aforesaid Summons on 11.08.2021 and furnished a  reply on 12.08.2021 through her counsel. It was stated that it  was too short a notice for the Petitioner to produce the  documents and sought for three (3) weeks‟ time. It further  stated that she is ready and willing to render all her assistance  in the ongoing investigation, in accordance with law.  

c. Summons dated 18.08.2021 was issued to the Petitioner seeking  her personal appearance on 01.09.2021 along with documents  as sought in the previous Summons. The Petitioner furnished a  reply to the aforesaid Summons on 31.08.2021 wherein she  stated that travelling to New Delhi in the midst of the pandemic  along with her two (2) young children could put their lives at  great risk. Further, she requested for her examination to be  conducted at her residence at Kolkata since the Respondent had  a functional office there.  

d. The Petitioner further sent an email on 16.09.2021 in reference  to the Summons dated 18.08.2021 clearly stating that she  intended to fully cooperate with the investigation, and her only  request was to be examined at her residence at Kolkata. She  also stated that it has come to her knowledge that the entire  cause of action arose in West Bengal, and that other women in  the ECIR have been examined at their residences in Kolkata.  She further stated that a woman cannot be summoned to appear  before an investigating authority, that too in a different state  and reiterated her intention to fully co-operate and assist with  the ongoing investigation.  

e. On 13.09.2021, the Respondent filed a complaint under Section  63 PMLA read with Section 174 IPC against the Petitioner,  bearing CC No. 1186 of 2021, before the Ld. CMM, Patiala  House Courts, New Delhi. The Ld. CMM, Patiala House Courts  took cognizance of the aforesaid complaint vide Order dated  18.09.2021 (hereinafter referred to as “First Impugned  Order”). Thereafter, the Ld. CMM, Patiala House Courts  summoned the Petitioner physically for furnishing surety vide  Order dated 30.09.2021 (hereinafter referred to as the “Second  Impugned Order”)  

f. The Petitioner, along with her husband, filed a Writ Petition  bearing W.P. (Crl.) No. 1808/2021 titled „Abhishek Banerjee  and Anr. v. Directorate of Enforcement‟ before this Hon‟ble  Court on 17.09.2021, challenging the legality of the Summons  issued inter alia to the Petitioner. 

5. The Petitioner in CRL.M.C. No. 2442 of 2021, has sought the  following relief in the nature of quashing : 

 

“a. Allow the instant Petition and pass an appropriate  order or direction setting aside and quashing the  Impugned Complaint dated 13.09.2021, Impugned  Orders dated 18.09.2021 and 30.09.2021 passed by the  Ld. Chief Metropolitan Magistrate, Patiala House  District Court, New Delhi in CC no. 1186 of 2021 and  all proceedings emanating therefrom; and  

b. Pass any other Order(s) this Hon’ble Court may deem   fit and necessary in the interest of justice.” 

6. The subject matter of both the petitions being the same but considering  that the substantial legal issues have been raised in WP(CRL) No.1808  of 2021, the said petition is taken up first for disposal.  

W.P.(CRL.) 1808/2021 AND CRL.M.As. 14972-73/2021 

7. I have heard the Ld. Sr. counsel for the petitioners and the Ld. SG for  the respondent and perused the records of the case carefully. 

8. The Ld. Sr. counsel for Petitioner No.1 and Petitioner No.2, in order to  seek the relief mentioned above, has made the following submissions:

(a) Since the Petitioners are residents of Kolkata they can be  examined by officer of the Respondent under Section 50 of the  Prevention of Money Laundering Act, 2002 (hereinafter referred  to as the PMLA‟) only at Kolkata. 

(b) Petitioner No.2 being a woman can be examined only at her  residence in light of the proviso to Section 160 the Code of  Criminal Procedure [hereinafter referred to as “CrPC”].

(c) The Ld. Sr. counsel for the Petitioners strenuously urged that  Section 160 of the CrPC in its totality falling in Chapter 12 of the  CrPC would be applicable to investigations conducted under the  PMLA. 

(d) The Ld. Sr. counsel for the Petitioners urges that by virtue of  Section 4 (2) of the CrPC and Section 65 of the PMLA, the  procedure with respect to arrest, search and seizure, attachment,  confiscation, investigation would apply to all investigations  carried out under the PMLA. 

(e) The Ld. Sr. counsel for the Petitioners further submitted that a  conjoint reading of Section 50 of the PMLA and Section 160 of  the CrPC shows that Section 160 is not in any manner inconsistent  with Section 50 of the PMLA. In order to buttress the same,  reliance is being placed on the judgment of the Hon‟ble Supreme  Court in Ashok Munilal Jain& Anr. Vs. Directorate of  Enforcement, (2018) 16 SCC 158, para 3 & 4. 

(f) The Ld. Sr. counsel for the Petitioners have also sought to draw a  parallel with a judgment of the Division Bench of this Hon‟ble  Court in Asmita Aggarwal vs. Enforcement Directorate &  Others, 2002 (61) DRJ 339 (para 7, 8) which, in the context of  Section 40 of the Foreign Exchange Regulation Act held that  Section 160 of the CrPC, specifically the proviso, would apply to  a woman being summoned in pursuance to any investigation under  the Foreign Exchange Regulation Act, 1973 (hereinafter referred  to as “FERA”). The Ld. Sr. counsel for the Petitioners have  submitted that Section 40 of FERA and Section 50 of the PMLA  are similar provisions and are silent as to the manner and place  where a person can be summoned for their examination. 

(g) The Ld. Sr. counsel for the Petitioners further relied on a  judgment of Hon’ble High Court of Gujarat in Foziya Samir Godil  v. Union of India, 2014 SCC Online Guj 3417 (Para 42 – 43).  The Ld. Sr. counsel for the Petitioners further submitted that the  said judgment was delivered in the context of Section 50 of the  PMLA and has held that a woman can be examined only at her  residence by virtue of Section 160 of the CrPC. 

(h) The Ld. Sr. counsel for the Petitioners specifically referring to the  territorial limitation under Section 160 of the CrPC submits that  police officer can summon only such person residing within the  limits of his/her own or adjoining police station and, therefore,  Section 50 of the PMLA would also have to be read in a manner  where an officer of the respondent in any jurisdiction can summon  only such persons who are residing within the limits of his own or  adjoining jurisdiction. The Ld. Sr. counsel for the Petitioners  submits that the respondent has a functional office at his place of  residence and such examination of the Petitioners must take place,  if at all within the territorial jurisdiction of such office. Reliance in  this regard is placed on Washeshar Nath Chadha v. State, 1993  Cri LJ 3214 (Para 17), Mathews Peter v. Asst. Police Inspector,  Crime Branch – II, Pune and Ors., 2001 SCC Online AP 739  (Paras 8 – 9), Krishan Bans Bahadur v. State of Himachal  Pradesh (Para 4), Tar Balbir Singh v. Union of India and Anr.,  1992 SCC Online P&H 81 (Para 5 – 6), Pusma Investment (P.)  Ltd. v. State of Meghalaya, 2009 SCC Online Gau 107 (Para 5). 

(i) The Ld. Sr. counsel for the Petitioners have further placed reliance  on the order dated 07.12.2021 passed in WP(Crl) 1768/2021 titled  Directorate of Enforcement vs. State of West Bengal & Others wherein this Hon’ble Court had stayed the operation of notices  issued by the West Bengal Police under Section 160 of the CrPC.  The Ld. Sr. counsel for the Petitioners have further placed reliance  on interim order passed by the Hon’ble High Court of Calcutta in  WPA 17576/2021 titled Sumit Roy v. Union of India and Anr.  dated 09.11.2021 and 22.12.2021 whereby directing the  Respondent to examine the Petitioners therein either in Kolkata or  through video conferencing.  

9. In response to the same, the Ld. SG for the respondent submitted as  under : 

(a) The mode, manner and method of investigation is the sole  prerogative of the investigating agency and cannot be interfered  on the exigencies shown by the Petitioners or as per the wisdom of  the Court. Reliance in this regard is placed on the judgment in  King-Emperor Vs. Khwaja Nazir Ahmad, 1944 SCC OnLine PC  29. The Ld. SG further urged that it is within their investigative  domain as to who is to be summoned and where such person is to  be summoned. 

(b) Placing reliance on the order of the Hon’ble Supreme Court in Kirit Shrimankar v. Union of India & Ors. in WP (Crl.) No.  109/2013, the Ld. SG urged that the writ petition is premature, the  Petitioners cannot be said to be persons aggrieved and, therefore,  no violation of fundamental rights or statutory rights can be urged  at the issuance of summons. In light of the above, it is urged that  the present writ petition is not maintainable. Reliance in this  regard is also placed on Union of India & Anr. Vs. Kunisetty  Satyanarayanan (2006) 12 SCC 28, Commissioner of Customs,  Kolkata & Anr. Vs. M/s M.M. Exports & Anr. (2010) 15 SCC  647. 

(c) The Ld. SG submitted that the Respondent agency is a national  agency which has Pan India jurisdiction and is not limited by the  territorial limitations present in the CrPC. The Ld. SG pointed out  that the scheme of the CrPC imposes a territorial restriction on the  power of the investigation by a police officer wherein such  restriction is limited to the local area which is in turn connected to  the concerned local Magistrate. Reliance in this regard was placed  on various provisions of the CrPC including Section 2 (j), 2(k),  2(o), 2(s), 2(u) and other provisions in order to show that there is a  territorial link between the police officer, the police station, the  Magistrate and the local area.

(d) The Ld. SG pointed out that in contra distinction to the scheme of  the CrPC, the respondent agency being a national investigative  agency, the scheme of the PMLA is designedly different and no  such territorial limitations are placed on the powers of the relevant  authorities under the PMLA. The Ld. SG highlighted that due to  the unique nature of the offence of the PMLA, the legislature has  not sought to impose such territorial limitation considering the  speed at which the situs of the offence can shift from one  jurisdiction to another. The Ld. SG also highlighted that the  scheme of the PMLA also provides for offences dealing with cross  border implications, which fall outside the territory of India,  thereby indicating that a wider expanse of jurisdiction has been  vested with authorities under the Act. Reliance in this regard has  been placed on Sections 2(ra), 2(na), 2(rc), 2(u), Section 55,  Section 56, Section 57, Section 58, Section 58(B), Section 59,  Section 60, Section 61 of the PMLA. 

(e) The Ld. SG submitted that the impugned summons have been  issued by the relevant empowered officer under Section 40 of the  PMLA and the power has been duly exercised.  

(f) With regard to the applicability of Section 160 of the CrPC, the  Ld. SG submitted that considering the absence of any territorial  limitation under the PMLA and due to specific provisions dealing  with the power of issuance of summons under Section 50 of the  PMLA, Section 160 of the CrPC would not apply.

(g) The Ld. SG further submitted that the ratio of the judgment in  Asmita Aggarwal (supra) would not apply to an investigation  under PMLA due to the difference in the provisions of FERA and  the PMLA, specifically highlighting the overriding provision in  Section 71 of the PMLA. 

(j) With regard to issuance of notice to a woman, the Ld. SG placed  reliance on the judgment of the Division Bench of the Hon‟ble  High Court of Judicature at Madras in Nalini Chidambaram vs.  ED 116-134 (W.A.Nos.1168 and 1169 of 2018) [2018 SCC  Online Mad 5924] wherein it was held that the protection under  the proviso to Section 160 CrPC would not apply to investigations  under PMLA. It was submitted that in appeal from the said order,  the Hon’ble Supreme Court vide order dated 03.08.2018 passed in  SLP(Civil) No.19275 of 2018 granted interim relief to the  Petitioner therein, however, the Hon‟ble Apex Court has not  stayed the order of the Hon‟ble Division Bench mentioned above.  

(k) The Ld. SG further submits that as per the judgment in Nandini  Satpathy vs. Dani (P.L.) And Anr (1978) DAN, the rationale  behind the proviso to Section 160 CrPC was to keep women and  children away from police station due to various factors and  specifically due to the nature of police stations in general. In  order to distinguish the same, the Ld. SG submitted that PMLA  deals with white collar crimes committed with cool calculations and have seen an increased participation by persons from all walks  of life including women. The Ld. SG submitted that therefore,  with regard to special nature of the offence under the PMLA, the  legislature thought it fit to do away with the distinction provided  for under Section 160 of the CrPC contained in Chapter XII of the  Code and proceeded made it gender neutral under Section 50 of  PMLA. 

(l) The Ld. SG submitted that the judgment in Ashok Munilal Jain  (supra) would have no application to the facts of the present case  as the said judgment was limited to deciding the issue of the  applicability of Section 167 of the CrPC to an arrest made under  the PMLA. 

(m) The Ld. SG further pointed out that Section 167 of the CrPC is  undoubtedly applicable to arrests made under the PMLA due to  the judgment in Directorate of Enforcement vs. Deepak Mahajan  (1994) 3 SCC 440. However, it was argued that the rational of the  said decision cannot be extended to include the applicability of  Section 160 CrPC to investigations under the PMLA. 

(n) With regard to the larger issue of the extent of the applicability of  CrPC to investigations under the PMLA and specifically with  regard to applicability of Chapter 12 of the CrPC (which includes  Section 167 CrPC), the Ld. SG submitted that the said issues are  pending before a Special 3-Bench of the Hon’ble Supreme Court  in a batch of matters titled “Vijay Madanlal Choudhary Vs.  Union Of India” – SLP(Crl) No. 004634 / 2014. 

(o) The Ld. SG further submitted that the Petitioners are even  otherwise estopped from raising the plea of territorial jurisdiction  when they themselves had submitted to the jurisdiction of the  authority vide letter dated 08.09.2021. The Ld. SG further pointed  out that the Petitioners are not permanent residents of the State of  West Bengal as the foot note of the said letter shows that the  Petitioners also have an address in New Delhi. Therefore, even  assuming that the provisions of Section 160 CrPC apply to  investigations under the PMLA, the Petitioners would qualify to  be a person within the limits of the territory of Delhi so as to abide  by the notices issued. 

(p) The Ld. SG further urged that since part of money laundering took  place in Delhi and part outside the territory of the country, it is  appropriate that the headquarters Investigation Unit (HIU) of the  Respondent investigate the same. 

10. In response to the same, the Ld. Sr. counsel for the Petitioners in  Rejoinder, submitted as under :  

(a) that Section 71 of the PMLA has an overriding effect only if an  inconsistency arises and considering the submission that there  exists no inconsistency between Section 160 of the CrPC and  Section 50 of the PMLA, the overriding effect clause of the  PMLA does not come in play. 

(b) The Ld. Sr. counsel for the Petitioner further highlighted that there  are various territorial limitations even in the PMLA. The Ld. Sr.  counsel for the Petitioners highlighted Section 6 (5), Section 16,  Section 44, Section 51. 

(c) The Ld. Sr. counsel for the Petitioners further highlighted the  annual report of the Department of Revenue showing an  organizational chart of zonal officers. On the basis of the same,  the Ld. Sr. counsel for the Petitioners urged that the concept of  territorial limitation is also present under the PMLA. 

(d) The Ld. Sr. counsel for the Petitioners further submitted that the  validity of the notice issued under Section 50 of PMLA can be  challenged by way of a writ petition which is maintainable  considering the statutory infractions pleaded by the Petitioners.  

(e) The Ld. Sr. counsel for the Petitioners further urged that the  Petitioners had been repeatedly summoned to join the  investigation by having to appear in New Delhi and when they  joined the investigation, the Petitioners were subjected to a roving  and fishing enquiry. In light of the same, the Ld. Sr. counsel for  the Petitioners submitted that there is reasonable apprehension that  the investigation conducted qua them is motivated and mala fide. 

(f) The Ld. Sr. counsel for the Petitioners clarified that the residence  of the Petitioners is at Kolkata and the allotted residence at New  Delhi is only for the purpose of attending the sessions of  Parliament. In light of the same, the Ld. SG urged that for the  purpose of Section 160 CrPC, the Petitioners would be residents  of Kolkata, West Bengal. 

(g) The Ld. Sr. counsel for the Petitioners further contended that  while other provisions of Chapter XII of the CrPC may be directly  inconsistent with the process of investigation and the procedure  provided for under the PMLA but Section 160 of the CrPC is not  inconsistent with Section 50 of the PMLA and, therefore, would  apply to investigation under PMLA. 

11. The core issue raised in the present petition is whether Section 160 of  the CrPC would be applicable to an investigation conducted under  the PMLA. Before analyzing the various aspects highlighted by the  Petitioners, it is necessary to take note of the fact that larger issues  considering the applicability of CrPC to investigation under the PMLA  including Chapter XII of the CrPC, which includes Section 160 of the  CrPC, are pending before the Hon’ble Supreme Court in Vijay Mandal  Chaudhary (supra). In light of the same, while arguments have been  made, to a limited extent touching upon other issues involving  applicability of Chapter XII of the CrPC, this Court would restrict its  exercise only to the issue of Section 160 of the CrPC. 

12. While the Respondent has sought to question maintainability of the  present petition on the basis of placing reliance on the judgment in Kirit  Shrimankar v. Union of India & Ors. in WP (Crl.) No. 109/2013, this  Court is not inclined to apply the said ratio to the facts of the present  case, as admittedly, the Petitioners have raised a question with regard  to the breach of their respective legal right in light of the statutory  interpretation provided for by the Petitioners while the validity of the  2017 order is a subject matter of the final decision of this Hon’ble Court  it cannot be denied that a writ petition in view of the alleged breach of legal rights would be maintainable under Section 226 of the  Constitution of India.

13. In order to appreciate the controversy at hand, it is necessary to analyze  the respective scheme of the PMLA and the CrPC. A bare perusal of  the Definition Clause of the CrPC would be relevant : 

“2. Definitions.—In this Code, unless the context  otherwise requires,— 

(h) “investigation” includes all the proceedings under  this Code for the collection of evidence conducted by a  police officer or by any person (other than a  Magistrate) who is authorised by a Magistrate in this  behalf;  

(j) “local jurisdiction”, in relation to a Court or  Magistrate, means the local area within which the Court  or Magistrate may exercise all or any of its or his  powers under this Code and such local area may  comprise the whole of the State, or any part of the State,  as the State Government may, by notification, specify;  

(k) “metropolitan area” means the area declared, or  deemed to be declared, under section 8, to be a  metropolitan area;  

(o) ―officer in charge of a police station‖ includes,  when the officer in charge of the police station is  absent from the station-house or unable from illness or  other cause to perform his duties, the police officer  present at the station-house who is next in rank to such  officer and is above the rank of constable or, when the  State Government so directs, any other police officer so  present; 

(s) ―police station‖ means any post or place declared  generally or specially by the State Government, to be a  police station, and includes any local area specified by  the State Government in this behalf; (v) ―sub-division‖   means a sub-division of a district;” 

14. The CrPC being the primary generic law for investigation of penal  offences in the country mostly falling under the Indian Penal Code  which are investigated by police officers stationed at a police station  investigating the offences committed within its local jurisdiction.  Section 7 of the Code, provides as under :  

―7. Territorial divisions.— 

(1) Every State shall be a sessions division or shall  consist of sessions divisions; and every sessions  divisions shall, for the purposes of this Code, be a  district or consist of districts: Provided that every  metropolitan area shall, for the said purposes, be a  separate sessions division and district. 

(2) The State Government may, after consultation with  the High Court, alter the limits or the number of such  divisions and districts.  

(3) The State Government may, after consultation with  the High Court, divide any district into subdivisions and  may alter the limits or the number of such sub-divisions.  

(4) The sessions divisions, districts and sub-divisions  existing in a State at the commencement of this Code,  shall be deemed to have been formed under this  section.” 

15. Further, it would be relevant to cursorily examine some portions of  Chapter XII of the CrPC in order to ascertain the territorial link  between police officer, “an officer in charge of a police station”, 

 “police station” and “jurisdictional magistrate”. The same are quoted as  under:  

“154. Information in cognizable cases.— 

(1) Every information relating to the commission  of a cognizable offence, if given orally to an officer in  charge of a police station, shall be reduced to writing  by him or under his direction, and be read over to the  informant; and every such information, whether given in  writing or reduced to writing as aforesaid, shall be  signed by the person giving it, and the substance thereof  shall be entered in a book to be kept by such officer in  such form as the State Government may prescribe in this  behalf:  

xxx 

155. Information as to non-cognizable cases and  investigation of such cases.— 

(1) When information is given to an officer in  charge of a police station of the commission within the  limits of such station of a non-cognizable offence, he  shall enter or cause to be entered the substance of the  information in a book to be kept by such officer in such  form as the State Government may prescribe in this  behalf, and refer the informant to the Magistrate. 

(2) No police officer shall investigate a non cognizable case without the order of a Magistrate  having power to try such case or commit the case for  trial.  

(3) Any police officer receiving such order may  exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an  officer in charge of a police station may exercise in a  cognizable case.  

(4) Where a case relates to two or more offences  of which at least one is cognizable, the case shall be  deemed to be a cognizable case, notwithstanding that  the other offences are non-cognizable.  

156. Police officer’s power to investigate cognizable  case.— 

(1) Any officer in charge of a police station may,  without the order of a Magistrate, investigate any  cognizable case which a Court having jurisdiction over  the local area within the limits of such station would  have power to inquire into or try under the provisions of  Chapter XIII.  

(2) No proceeding of a police officer in any such  case shall at any stage be called in question on the  ground that the case was one which such officer was not  empowered under this section to investigate.  

(3) Any Magistrate empowered under section 190 may order such an investigation as above-mentioned.  

157. Procedure for investigation.— 

(1) If, from information received or otherwise, an  officer in charge of a police station has reason to  suspect the commission of an offence which he is  empowered under section 156 to investigate, he shall  forthwith send a report of the same to a Magistrate  empowered to take cognizance of such offence upon a  police report and shall proceed in person, or shall  depute one of his subordinate officers not being below  such rank as the State Government may, by general or  special order, prescribe in this behalf, to proceed, to the  spot, to investigate the facts and circumstances of the  case, and, if necessary, to take measures for the  discovery and arrest of the offender:  

xxx 

161. Examination of witnesses by police.— 

(1) Any police officer making an investigation  under this Chapter, or any police officer not below such rank as the State Government may, by general or special  order, prescribe in this behalf, acting on the requisition  of such officer, may examine orally any person supposed  to be acquainted with the facts and circumstances of the  case.  

(2) Such person shall be bound to answer truly all  questions relating to such case put to him by such  officer, other than questions the answers to which would  have a tendency to expose him to a criminal charge or  to a penalty or forfeiture.  

(3) The police officer may reduce into writing any  statement made to him in the course of an examination  under this section; and if he does so, he shall make a  separate and true record of the statement of each such  person whose statement he records.  

164. Recording of confessions and statements.— 

(1) Any Metropolitan Magistrate or Judicial  Magistrate may, whether or not he has jurisdiction in  the case, record any confession or statement made to  him in the course of an investigation under this Chapter  or under any other law for the time being in force, or at  any time afterwards before the commencement of the  inquiry or trial:  

173. Report of police officer on completion of  investigation.—

174.  (1) Every investigation under this Chapter shall be  completed without unnecessary delay”

16. A bare perusal of Section 2 of the CrPC read with Section 7 and other  provisions of Chapter XII clearly points towards the territorial  limitations imposed on police officers in terms of the exercise of their  jurisdiction. Such jurisdiction appears to be limited to their respective  local areas [except in certain situations] falling under their respective  police stations.

17. As opposed to the same, a perusal of the PMLA would provide that the  authorities under Section 48 of the PMLA, in the exercise of their  powers under the PMLA are not territorially restricted in the manner  envisaged under the CrPC. The relevant provisions may be noted as  under :  

“Section 2 – Definitions (ra) ―offence of cross border implications‖, means— 

(i) any conduct by a person at a place outside  India which constitutes an offence at that place  and which would have constituted an offence  specified in Part A, Part B or Part C of the  Schedule, had it been committed in India and if  such person transfers in any manner the proceeds  of such conduct or part thereof to India; or  

(ii) any offence specified in Part A, Part B or Part  C of the Schedule which has been committed in  India and the proceeds of crime, or part thereof  have been transferred to a place outside India or  any attempt has been made to transfer the  proceeds of crime, or part thereof from India to a  place outside India.  

Explanation.—Nothing contained in this clause  shall adversely affect any investigation, enquiry,  trial or proceeding before any authority in respect  of the offences specified in Part A or Part B of the  Schedule to the Act before the commencement of  the Prevention of Money laundering (Amendment)  Act, 2009 (21 of 2009); 

(na)“investigation” includes all the proceedings under  this Act conducted by the Director or by an authority  authorised by the Central Government under this Act  for the collection of evidence;  

(rc) “payment system operator” means a person who  operates a payment system and such person includes his  overseas principal.  

Explanation.—For the purposes of this clause,  “overseas principal” means,— 

(A) in the case of a person, being an individual,  such individual residing outside India, who owns  or controls or manages, directly or indirectly, the  activities or functions of payment system in India;  

(B) in the case of a Hindu undivided family, Karta  of such Hindu undivided family residing outside  India who owns or controls or manages, directly  or indirectly, the activities or functions of  payment system in India;  

(C) in the case of a company, a firm, an  association of persons, a body of individuals, an  artificial juridical person, whether incorporated  or not, such company, firm, association of  persons, body of individuals, artificial juridical  person incorporated or registered outside India  or existing as such and which owns or controls or  manages, directly or indirectly, the activities or  functions of payment system in India;  

(u) “proceeds of crime” means any property derived or  obtained, directly or indirectly, by any person as a  result of criminal activity relating to a scheduled offence  or the value of any such property or where such  property is taken or held outside the country, then the  property equivalent in value held within the country or  abroad. 

54. Certain officers to assist in inquiry, etc.— The following officers and others are hereby empowered  and required to assist the authorities in the enforcement  of this Act, namely:— 

(a) officers of the Customs and Central Excise  Departments;  

(b) officers appointed under sub-section (1) of  section 5 of the Narcotic Drugs and Psychotropic  Substances Act, 1985 (61 of 1985);  

(c) income-tax authorities under sub-section (1) of  section 117 of the Income-tax Act, 1961 (43 of  1961); 2  

(d) members of the recognised stock exchange  referred to in clause  

(f) of section 2 and the officers of the stock  exchanges recognised under section 4 of the  Securities Contracts (Regulation) Act, 1956 (42 of  1956); 

(e) officers of the Reserve Bank of India  constituted under sub-section (1) of section 3 of  the Reserve Bank of India Act, 1934 (2 of 1934);  (f) officers of Police;  

(g) officers of enforcement appointed under sub section (1) of section 36 of the Foreign Exchange  Management Act, 1999 (40 of 1999);  

(h) officers of the Securities and Exchange Board  of India established under section 3 of the  Securities and Exchange Board of India Act, 1992  (15 of 1992); 3  

(ha) officers of the Insurance Regulatory and  Development Authority established under section  3 of the Insurance Regulatory and Development  Authority Act, 1999 (41 of 1999);  

(hb) officers of the Forward Markets Commission  established under section 3 of the Forward  Contracts (Regulation) Act, 1952 (74 of 1952); 

(hc) officers and members of the recognised  association recognised under section 6 of the  Forward Contracts (Regulation) Act, 1952 (74 of  1952);  

(hd) officers of the Pension Fund Regulatory and  Development Authority;  

(he) officers of the Department of Posts in the  Government of India;  

(hf) Registrars or Sub-Registrars appointed by the  State Governments under section 6 of the  Registration Act, 1908 (16 of 1908);  

(hg) registering authority empowered to register  motor vehicles under Chapter IV of the Motor  Vehicles Act, 1988 (59 of 1988);  

(hh) officers and members of the Institute of  Chartered Accountants of India constituted under  section 3 of the Chartered Accountants Act, 1949  (38 of 1949);  

(hi) officers and members of the Institute of Cost  and Works Accountants of India constituted under  section 3 of the Cost and Works Accountants Act,  1959 (23 of 1959);  

(hj) officers and members of the Institute of  Company Secretaries of India constituted under  section 3 of the Company Secretaries Act, 1980  (56 of 1980);]  

(i) officers of any other body corporate  constituted or established under a Central Act or  a State Act;  

(j) such other officers of the Central Government,  State Government, local authorities or reporting  entities as the Central Government may, by  notification, specify, in this behalf.  

CHAPTER IX RECIPROCAL ARRANGEMENT FOR  ASSISTANCE IN CERTAIN MATTERS AND 

PROCEDURE FOR ATTACHMENT AND  CONFISCATION OF PROPERTY  

55. 5 Definitions.—

In this Chapter, unless the context otherwise requires,— (a) “contracting State” means any country or  place outside India in respect of which  arrangements have been made by the Central  Government with the Government of such country  through a treaty or otherwise;  

(b) “identifying” includes establishment of a  proof that the property was derived from, or used  in the commission of an offence under section 3;  (c) “tracing” means determining the nature,  source, disposition, movement, title or ownership  of property.  

56. 5 Agreements with foreign countries.—

(1) The Central Government may enter into an  agreement with the Government of any country outside  India for— 

(a) enforcing the provisions of this Act;  

(b) exchange of information for the prevention of  any offence under this Act or under the  corresponding law in force in that country or  investigation of cases relating to any offence  under this Act, and may, by notification in the  Official Gazette, make such provisions as may be  necessary for implementing the agreement.  

(2) The Central Government may, by notification in the  Official Gazette, direct that the application of this  Chapter in relation to a contracting State with which  reciprocal arrangements have been made, shall be  subject to such conditions, exceptions or qualifications  as are specified in the said notification. 

57. 5 Letter of request to a contracting State in certain cases.—

(1) Notwithstanding anything contained in this Act or  the Code of Criminal Procedure, 1973 (2 of 1974) if, in  the course of an investigation into an offence or other  proceedings under this Act, an application is made to a  Special Court by the Investigating Officer or any officer  superior in rank to the Investigating Officer that any  evidence is required in connection with investigation  into an offence or proceedings under this Act and he is  of the opinion that such evidence may be available in  any place in a contracting State, and the Special Court,  on being satisfied that such evidence is required in  connection with the investigation into an offence or  proceedings under this Act, may issue a letter of request  to a court or an authority in the contracting State  competent to deal with such request to— ( 

(i) examine facts and circumstances of the case, (ii) take such steps as the Special Court may specify in such letter of request, and  

(iii) forward all the evidence so taken or collected  to the Special Court issuing such letter of request.  (2) The letter of request shall be transmitted in such  manner as the Central Government may specify in this  behalf.  

(3) Every statement recorded or document or thing  received under sub-section (1) shall be deemed to be the  evidence collected during the course of investigation.  

58. 5 Assistance to a contracting State in certain cases.— Where a letter of request is received by the Central Government from a court or authority in a contracting State requesting for investigation into an offence or  proceedings under this Act and forwarding to such court  or authority any evidence connected therewith, the  Central Government may forward such letter of request  to the Special Court or to any authority under the Act as  it thinks fit for execution of such request in accordance  with the provisions of this Act or, as the case may be,  any other law for the time being in force.

58A. Special Court to release the property.— Where on closure of the criminal case or conclusion of a  trial in a criminal court outside India under the  corresponding law of any other country, such court  finds that the offence of money-laundering has not taken  place or the property in India is not involved in money laundering, the Special Court may, on an application  moved by the concerned person or the Director, after  notice to the other party, order release of such property  to the person entitled to receive it.  

58B. Letter of request of a contracting State or  authority for confiscation or release the property.— Where the trial under the corresponding law of any  other country cannot be conducted by reason of the  death of the accused or the accused being declared a  proclaimed offender or for any other reason or having  commenced but could not be concluded, the Central  Government shall, on receipt of a letter of request from  a court or authority in a contracting State requesting for  confiscation or release of property, as the case may be,  forward the same to the Director to move an application  before the Special Court and upon such application the  Special Court shall pass appropriate orders regarding  confiscation or release of such property involved in the  offence of money-laundering.  

59. 5 Reciprocal arrangements for processes and assistance for transfer of accused persons.— (1) Where a Special Court, in relation to an offence punishable under section 4, desires that— 

(a) a summons to an accused person, or 

W.P.(CRL) 1808/2021 & CRL.M.C. 2442/2021 Page 31 of 60 

(b) a warrant for the arrest of an accused person,  or  

(c) a summons to any person requiring him to  attend and produce a document or other thing or  to produce it, or  

(d) a search warrant, issued by it shall be served  or executed at any place in any contracting State,  it shall send such summons or warrant in  duplicate in such form, to such Court, Judge or  Magistrate through such authorities, as the  Central Government may, by notification, specify  in this behalf and that Court, Judge or  Magistrate, as the case may be, shall cause the  same to be executed.  

(2) Where a Special Court, in relation to an offence  punishable under section 4 has received for service or  execution— 

(a) a summons to an accused person, or  

(b) a warrant for the arrest of an accused person,  or  

(c) a summons to any person requiring him to  attend and produce a document or other thing, or  to produce it, or  

(d) a search warrant, issued by a Court, Judge or  Magistrate in a contracting State, it shall, cause  the same to be served or executed as if it were a  summons or warrant received by it from another  Court in the said territories for service or  execution within its local jurisdiction; and  where— 

(i) a warrant of arrest has been executed,  the person arrested shall be dealt with in  accordance with the procedure specified  under section 19;  

(ii) a search warrant has been executed, the  things found in this search shall, so far as  possible, be dealt with in accordance with the procedure specified under sections 17  and 18: Provided that in a case where a  summon or search warrant received from a  contracting State has been executed, the  documents or other things produced or  things found in the search shall be  forwarded to the Court issuing the  summons or search-warrant through such  authority as the Central Government may,  by notification, specify in this behalf.  

(3) Where a person transferred to a contracting State  pursuant to sub-section (2) is a prisoner in India, the  Special Court or the Central Government may impose  such conditions as that Court or Government deems fit.  

(4) Where the person transferred to India pursuant to  sub-section (1) is a prisoner in a contracting State, the  Special Court in India shall ensure that the conditions  subject to which the prisoner is transferred to India are  complied with and such prisoner shall be kept in such  custody subject to such conditions as the Central  Government may direct in writing.  

60. Attachment, seizure and confiscation, etc., of property in a contracting State or India.— (1) Where the Director has made an order for attachment of any property under section 5 or for  freezing under sub-section (1A) of section 17 or where  an Adjudicating Authority has made an order relating to  a property under section 8 or where a Special Court has  made an order of confiscation relating to a property  under sub-section (5) or sub section (6) of section 8 and  such property is suspected to be in a contracting State,  the Special Court, on an application by the Director or  the Administrator appointed under sub-section (1) of  section 10, as the case may be , may issue a letter of  request to a court or an authority in the contracting  State for execution of such order. 

(2) Where a letter of request is received by the Central  Government from a court or an authority in a  contracting State requesting attachment, seizure,  freezing or confiscation of the property in India, derived  or obtained, directly or indirectly, by any person from  the commission of an offence under a corresponding law  committed in that contracting State, the Central  Government may forward such letter of request to the  Director, as it thinks fit, for execution in accordance  with the provisions of this Act.  

(2A) Where on closure of the criminal case or  conclusion of trial in a criminal court outside India  under the corresponding law of any other country, such  court finds that the offence of money-laundering under  the corresponding law of that country has been  committed, the Special Court shall, on receipt of an  application from the Director for execution of  confiscation under sub-section (2), order, after giving  notice to the affected persons, that such property  involved in money-laundering or which has been used  for commission of the offence of money-laundering  stand confiscated to the Central Government. 

(3) The Director shall, on receipt of a letter of request  under section 58 or section 59, direct any authority  under this Act to take all steps necessary for tracing and  identifying such property.  

(4) The steps referred to in sub-section (3) may include  any inquiry, investigation or survey in respect of any  person, place, property, assets, documents, books of  account in any bank or public financial institutions or  any other relevant matters.  

(5) Any inquiry, investigation or survey referred to in  sub-section (4) shall be carried out by an authority  mentioned in sub-section (3) in accordance with such  directions issued in accordance with the provisions of  this Act. 

(6) The provisions of this Act relating to attachment,  adjudication, confiscation and vesting of property in the  Central Government contained in Chapter III and  survey, searches and seizures contained in Chapter V   shall apply to the property in respect of which letter of   request is received from a court or contracting State for   attachment or confiscation of property.  

(7) When any property in India is confiscated as a result  of execution of a request from a contracting State in  accordance with the provisions of this Act, the Central  Government may either return such property to the  requesting State or compensate that State by disposal of  such property on mutually agreed terms that would take  into account deduction for reasonable expenses incurred  in investigation, prosecution or judicial proceedings  leading to the return or disposal of confiscated property. 

61. Procedure in respect of letter of request.—

62. Every letter of request, summons or warrant, received

by the Central Government from, and every letter of  request, summons or warrant, to be transmitted to a  contracting State under this Chapter shall be  transmitted to a contracting State or, as the case may  be, sent to the concerned Court in India and in such  form and in such manner as the Central Government  may, by notification, specify in this behalf.” 

18. 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.

19. This again shall have to be considered in light of Section 4 and 5 of the  CrPC read with Section 65 and 71 of the PMLA. It was open for the  Legislature, to enact a scheme in the nature of the CrPC and carry the  same limitations in the PMLA however, the same clearly appears to be  omitted consciously. 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.  

20. The annual report of the Department of Revenue or the organizational  chart of zonal officers of the Respondent would not come to the aid of  the Petitioners as the same cannot be considered to be statutory  limitations. In the absence of any express statutory limitations, it would  not be possible to circumscribe the power of authorities under the  PMLA by way of judicial interpretation of administrative documents,  which at most, are for internal administrative convenience.  

Therefore, 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.

 

21. At this juncture, it is necessary to examine Section 160 CrPC in light of  Section 50 of the PMLA to ascertain if there are any inconsistencies  between the two. Section 160 CrPC is quoted hereunder: 

“160. Police officer’s power to require attendance of  

witnesses.— 

(1) Any police officer making an investigation under this  Chapter may, by order in writing, require the  attendance before himself of any person being within the  limits of his own or any adjoining station who, from the  information given or otherwise, appears to be  acquainted with the facts and circumstances of the case;  and such person shall attend as so required: Provided  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.  

(2) The State Government may, by rules made in this  behalf, provide for the payment by the police officer of   the reasonable expenses of every person, attending  under sub-section (1) at any place other than his  residence.” 

22. Section 50 of the PMLA is quoted hereunder :  

“50. Powers of authorities regarding summons,  production of documents and to give evidence, etc.— 

(1) The Director shall, for the purposes of section 13,  have the same powers as are vested in a civil court  under the Code of Civil Procedure, 1908 (5 of 1908)  while trying a suit in respect of the following matters,  namely:— 

(a) discovery and inspection;  

(b) enforcing the attendance of any person, including  

any officer of a reporting entity and examining him on  

oath; 

(c) compelling the production of records;  

(d) receiving evidence on affidavits;  

(e) issuing commissions for examination of witnesses  

and documents; and  

(f) any other matter which may be prescribed.  

(2) The Director, Additional Director, Joint Director,  Deputy Director or Assistant Director shall have power  to summon any person whose attendance he considers  necessary whether to give evidence or to produce any  records during the course of any investigation or   proceeding under this Act.  

(3) All the persons so summoned shall be bound to  attend in person or through authorised agents, as such  officer may direct, and shall be bound to state the truth  upon any subject respecting which they are examined or  make statements, and produce such documents as may  be required.  

(4) Every proceeding under sub-sections (2) and (3)  shall be deemed to be a judicial proceeding within the  meaning of section 193 and section 228 of the Indian  Penal Code (45 of 1860).  

(5) Subject to any rules made in this behalf by the  Central Government, any officer referred to in sub section (2) may impound and retain in his custody for  such period, as he thinks fit, any records produced  before him in any proceedings under this Act:  

Provided that an Assistant Director or a Deputy  Director shall not— 

(a) impound any records without recording his reasons  for so doing; or  

(b) retain in his custody any such records for a period  exceeding three months, without obtaining the previous  approval of the Joint Director.” 

23. Section 160 of the CrPC provides for the power of a police officer to  require attendance of witnesses. At the same time, Section 50 of the  PMLA deals with power of the authorities under the PMLA regarding  summons, production of documents and to give evidence. Section 50  provides that the authorities shall have the power to enforce attendance  of „any person’ and shall also have the power to summon „any person‟  whose attendance is considered necessary for the purpose of  investigation. The proceedings under Section 50 are statutorily  considered to be civil in nature and the persons so summoned are  bound to attend and bound to state the truth before the authorities.  Therefore, while Section 160 of CrPC is limited to witnesses (who may  become accused in the future), Section 50 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 (which would  necessarily women). On a plain reading of Section 160 of the CrPC, it  is clear that it empowers only a “police officer” which has a specific  meaning in criminal jurisprudence who is making an investigation  under Chapter XII of the CrPC and has specific responsibilities under  the CrPC as noticed above. Further, Section 160 of CrPC, in line with  the overall scheme of the CrPC of territorial limitations, provides for a  limitation on only such persons who are within the limits of territorial  jurisdiction of such police officers, police station or any adjoining  station, can be required for attendance under the said provision. The  PMLA while providing for a similar power of requiring attendance of  any person – including witnesses, has not imposed any such territorial  limitation as the scheme of the PMLA does not permit the same.  Further, Section 160 of the CrPC provides for exception by way of a  proviso which is applicable to women and children. On the other hand,  Section 50 of the PMLA while providing for a similar power of  requiring attendance of any persons including witnesses, does not  provide for such exception despite providing for powers of compulsory  attendance. 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.

24. The Petitioners have placed considerable reliance on the judgment in  Asmita Aggarwal (supra) which was examining the question as to the  summoning of a woman under Section 40 of FERA. The relevant  paragraphs of the said judgment are as under:- 

“7. Bare reading of the proviso makes it clear that if the  attendance of the woman is required it shall be at her  residence. Admittedly the petitioner was summoned to  produce documents. Reading of the summon dated 8th  May, 1997 under Section40 of the FERA shows she was  only to produce documents. It appears she was  summoned in connection with some on going  investigation. She was to answer certain querries.  

8. Contention of Mr. K.K. Sud, Addl. Solicitor General,that by directing to investigate her at her residence  there has been a violation of the provision of FERA. We  find no substance in this contention. Section 4 of the Code of Criminal Procedure deals with the trial of  offence under the Penal Code, 1860 and other laws.  Perusal of sub-section (2) of Section 4 show that all  offences shall be investigated, inquired into, tried, and  otherwise dealt with under the same provision and the  Code subject to the condition that if there is any  enactment or a special Code regulating the manner or  place of investigating, inquiring, into, trying or  otherwise then the Code will not apply. But as already  pointed out above, FERA even though a special Code or  enactment, nowhere provides as to where the  investigation of woman is to be carried. Therefore, in  the absence of any provision available in the special  enactment, the provision of Code would apply as laid  down under Section 4(2) of the Code. In this respect  reference can be made to the decision of the Supreme  Court in the case of Directorate of Enforcement v.  Deepak Mahajan and another (Supra). In this case Apex  Court held that the operation of Section 4(2) of the Code  is straightaway attributed to the areas of investigation,  enquiry and trial of offences under the special laws  including the FERA and the customs. Section 4 is  comprehensive and that Section 5 is not in derogation of  Section 4(2) of the Code. It only relates to the extent of  application of the Code in the matter of territorial and  other jurisdiction but does not nullify the effect of  Section 4 (2) of the Code. It has further been observed  that the provision of the Code would be applicable to the  extent in the absence of any contrary provision in the  special Act or any other special provisions excluding the  jurisdiction or applicability of the Code. That reading of  Section 2 of the Code r/w Section 26 (B) which governs  any criminal proceeding as regards the course of which  an offence is to be tried and as to the procedure to be  followed renders the provision of the Code applicable in  the field not covered by the provision of FERA or  Customs Act. Admittedly, Apex Court in Deepak Mahajan’s case (Supra) was not dealing with the  proviso of Section 160 Cr.P.C. but was dealing with the  applicability of Section 167 of the Code to a case to be  filed under FERA, It is not denied that Section 160 and Section 167 of the Code fall under the same Chapter i.e.  Chapter XII under the title “Information to the police  and their power to investigate”. It was while dealing  with and interpreting Section 167 Cr.P.C. under  Chapter XII of the Apex Court made the observation in  Deepak Mahajan’s case (Supra). The fact of the matter  is that once the special legislation or enactment like  FERA is silent with regard to certain procedure like  where to investigate a woman, one cannot but have to  have recourse to the code. Admittedly FERA is silent in  this respect regarding investigating a woman 6r a minor  under the FERA, therefore, we are of the view that the  provisions of Section 160 of the Code would apply in the  facts of this case. It may, however, be made clear that  the petitioner will fully co-operate with the investigating  officer.”

25. The Ld. Sr. counsel for the Petitioners have further placed reliance on  the judgment in Foziya Samir Godil (supra) of the Hon‟ble High Court  of Gujarat wherein the Court held as under:- 

“42. However, so far as petitioner-Foziya Samir Godil  is concerned being a woman, it is rightly contended by  the learned counsel for the petitioners that she is  entitled to benefits of all the procedures applicable to  the woman under the relevant law and to that extent. the  respondents at the threshold shall have to comply with  the pro visIons of law.  

43. The contention that exclusive procedure for  summoning a per- son under Section 50 not providing   the safeguards to a woman as under various provisions  of Cr.P,C and therefore, no benefit as is available to the woman under Or.P.C can be conferred upon her, is  devoid of merits and suffers from misconception of law  inasmuch as concededly by virtue of Section 65 of P.M.L  Act, provisions of Cr.P, C as are not inconsistent with  the provisions of P.M.L Act are applicable to the  proceedings under P.M.L Act and it cannot be said that  the provisions providing safeguard to a woman under  Cr.P.C cannot stand with the provisions of P.M.L Act  and there- fore, such provisions cannot be said to be inconsistent with P.M.L Act”

26. Further, reliance has been placed on the judgment in Ashok Munilal  Jain (supra) which state as under: 

“3. We have gone through the orders passed by the  trial court as well as by the High Court. We may state at  the outset that insofar as the High Court is concerned, it  has not given any reasons in support of its aforesaid  view except endorsing the view of the trial court to the  effect that the provisions of Section 167(2) CrPC are not  applicable to the cases under the PMLA Act. This  position in law stated by the trial court does not appear  to be correct and even the learned Attorney General  appearing for the respondent could not dispute the  same. We may record that as per the provisions of  Section 4(2) CrPC, the procedure contained therein  applies in respect of special statutes as well unless the  applicability of the provisions is expressly barred.  Moreover, Sections 44 to 46 of the PMLA Act  specifically incorporate the provisions of CrPC to the  trials under the PMLA Act. Thus, not only that there is  no provision in the PMLA Act excluding the  applicability of CrPC, on the contrary, provisions of  CrPC are incorporated by specific inclusion. Even  Section 65 of the PMLA Act itself settles the controversy  beyond any doubt in this behalf which reads as under:

“65. Code of Criminal Procedure, 1973 to  

apply.—The provisions of the Code of Criminal  Procedure, 1973 (2 of 1974) shall apply, insofar as  they are not inconsistent with the provisions of this  Act, to arrest, search and seizure, attachment,  confiscation, investigation, prosecution and all other  proceedings under this Act.” 

4. We may also refer to the judgment of this Courtin Directorate of Enforcement v. Deepak  Mahajan [Directorate of Enforcement v. Deepak  Mahajan, (1994) 3 SCC 440 : 1994 SCC (Cri) 785]  wherein it was held as under: (SCC p. 480, para 136)

“136. In the result, we hold that sub-sections (1)  and (2) of Section 167 are squarely applicable with  regard to the production and detention of a person  arrested under the provisions of Section 35 of FERA  and Section 104 of the Customs Act and that the  Magistrate has jurisdiction under Section 167(2) to  authorise detention of a person arrested by any  authorised officer of the Enforcement under FERA  and taken to the Magistrate in compliance of Section  35(2) of FERA.” 

5. We, thus, do not agree with the opinion of the HighCourt that the provisions of Section 167(2) CrPC would  not be applicable to the proceedings under the PMLA  Act. In the present case, as no complaint was filed even  after the expiry of 60 days from the date when the  appellant was taken into custody, he was entitled to  statutory bail in view of the provisions contained in  Section 167(2) CrPC.”

27. The Respondent, on the other hand, has placed reliance on the  judgment in Nalini Chidambaram (supra) of the Hon‟ble High Court  of Madras. The relevant portion is quoted as under:-

“21. Section 50(2) gives sufficient ammunition to an  authority to summon any person whose attendance is  considered necessary. The word “shall” is to be interpreted to mean absolute power to seek attendance  ofcourse to a subjective satisfaction. Such a power can  be exercised requiring a person to give evidence or to  produce during the course of investigation. An  investigation cannot be given a restrictive meaning  since it is included in the definition clause of  “proceedings”. Section 50(2) also makes this position  abundantly clear by suffixing the word “investigation”  with the word “any”.  

22. Such an exercise of an authority is also reiterated  under sub-section 3 which mandates a person so  summoned to attend in person. Here also the discretion  given to the authority is extended either to call a person  or permit to represent by an authorised agent.  Therefore, if an authority is of the view that the  assistance rendered by an authorised agent is not  sufficient enough, then certainly a person can be  directed to attend physically.  

23. Interestingly sub-section 4 goes one step further and  makes the position clear. It starts with the words “every  proceeding under sub-section (2) and (3). Such a  proceeding shall be deemed to be a judicial proceeding  within the meaning of Sections 193 and 228 of the  Indian Penal Code. Hence, a deeming fiction is created  by giving status of the judicial proceedings to an  investigation or proceedings under sub-section (2) and  (3). Therefore, a person is required to furnish the facts  known to him by facilitating the process of investigation  or any other proceeding.  

24. 2 Section 65 provides for the application of the Code of Criminal Procedure, 1973. It arises, when there is no inconsistency with the provisions of the Act 15 of  2003. This is also with specific reference to arrest,  search, seizure, attachment, confiscation, investigation  etc. Therefore, this provision is introduced to help the  authority in its investigation or proceedings under the  Act by having recourse to the Code whenever the Act  does not provide so. Hence, Section 65 has to be  interpreted to mean that Code is meant to be used by  an authority in discharge of his functions under Act 15  of 2003.  

25. 2 Section 71 speaks of the over riding effect. It contains a non-obstante clause dealing with any possible inconsistency in any other law. While Section  65 applies to the Code of Criminal Procedure for  helping the authority, Section 71 clears any possible  inconsistency with all the provisions of the Act 15 of  2003. Resultantly, even assuming if there is any  inconsistency, with any other law for the time being in  force, Act 15 of 2003 will have primacy. Idea is to  avoid any obstacle that might arise through the  operation of other enactments.  

xxx 

29. Both the Code and the Act travel on their respective channels. Under the Code investigation is done by the police over a crime. On the contrary, under Act 15 of  2003, an authority has got different roles to play, in tune  with the objectives. While Section 50(2) of the Act 15 of  2003 speaks of an authorised agent, the same is missing  under the Code. There is no proceedings under the Code  as being dealt with under the Act 15 of 2003 by an  authority. Merely because trappings of police power is  given, an authority cannot be compared with the  policemen under all circumstances and so is his office. 

xxx 

31. 3 Coming to the issue qua a woman, certainly an authority can call a woman, who comes within the definition of a ―person‖, since the nature of  investigation or a proceeding is totally different apart  from being distinct from the one under the Code. After  all, a wide discretion is given to an authority even to  call a person or permit his or her authorised agent.  Therefore, when once a satisfaction is arrived on the  need to summon a person physically, the same has to  be done to facilitate a smooth progress in the  investigation process. Thus, a woman can certainly be  called in a given case by an authority while exercising  its discretion on relevant materials. The object behind  Section 160 of the Criminal Procedure Code is not to  expose a woman to the environment surrounding  police station which will certainly not be available in a  proceeding by way of an investigation under Act 15 of  2003. The summons that were issued by the competent  authority under the Act was in exercise of powers  conferred on the authority under Section 50 of the Act.  There is no necessity to meet the requirements of the  proviso to Section 160 of the Code of Criminal  Procedure since an independent power has been  conferred on the authority under Section 50 of the Act.  Wherever the Act itself stipulates the specific power,  authority and procedure, there is no requirement to  read the provisions of Code of Criminal Procedure into  it. In fact, the most harmonious manner in which both  the enactments can be parallely invoked would be to  ensure that the provisions of Code of Criminal  Procedure are not read into or invoked wherever the  Act itself specifically provides for the same.  

xxx 

34. 3 Accordingly, we find no conflict either implied or express between the Code and the enactment. xxx 

35. As the learned single Judge has made reliance upon number of decisions, it would be appropriate to consider them. In ASMITA AGARWAL v. THE ENFORCEMENT  DIRECTORATE ((2002) Criminal Law Journal 819),  the High Court of Delhi was dealing with the  proceedings in FERA Act. Having found that FERA is  silent regarding the investigation of women, it was held that the provision of Section 160 of the Code will apply.  To be noted, there is no pari materia provisions under  the FERA Act as contained in Act 15 of 2003 with  specific reference to Sections 52, 65 and 72. Further, the  petitioner therein was apprehending trouble at the  hands of her husband and therefore, the aforesaid case  is distinguishable on facts.

xxx 

46. The Gujarat High Court in FOZIYA SAMIR GODIL v. UNION OF INDIA (Spl. Crl. Application (Direction) No. 1725 of 2014 with Spl. Crl. Appln. No. 1748 of 2014  dated 09.05.2014) was in fact dealing with the very  same issue. After going through the abovesaid judgment,  we are of the view that inasmuch as there is no conflict  between Section 52 of the Act and Section 160 of the  Code, it is not mandatory in all cases a woman shall  never be called whatever be her involvement and status.  Thus, it is for the second respondent to exercise power  in a given case either to call a person or an authorised  agent. Since a definition of the word “person” would  include a woman, it is certainly open to the authority to  take a call either summon her physically or otherwise  through an agent.  

xxx 

48. 4 Much has been said on the decision of the Apex Court in ASHOK MUNILAL JAIN v. ASSISTANT DIRECTOR, DIRECTORATE OF ENFORCEMENT  (Crl. Appeal No. 566 of 2017 dated 22.03.2017), where  the appellant was given the benefit of statutory bail.  The said decision also cannot help the case of the  appellant. We are not dealing with the provision, which  gives a substantive right.  

49. In fine, both the appeals stand dismissed. However,  liberty is given to the respondents to issue a fresh  summons to the appellant requiring her appearance in  person. No costs.”

28. The Respondent has further pointed out that the Hon’ble Supreme  Court has not stayed the order of the Hon‟ble High Court of Judicature  and Madras and merely granted interim relief on the facts of the case  considering the age of the Petitioner in the said case and the said  interim order would have no precedential value in view of the judgment  in Shree Chamumdi Moped Ltd. Vs. Church of South India Trust  (1992) 3 SCC 1. The relevant portion of the said order is quoted below:  

““10. In the instant case, the proceedings before the  Board under Sections 15 and 16 of the Act had been  terminated by order of the Board dated April 26, 1990  whereby the Board, upon consideration of the facts and  material before it, found that the appellant-company had  become economically and commercially non-viable due  to its huge accumulated losses and liabilities and should  be wound up. The appeal filed by the appellant-company  under Section 25 of the Act against said order of the  Board was dismissed by the Appellate Authority by  order dated January 7, 1991. As a result of these orders,  no proceedings under the Act were pending either  before the Board or before the Appellate Authority on  February 21, 1991 when the Delhi High Court passed  the interim order staying the operation of the order of  the Appellate Authority dated January 7, 1991. The said  stay order of the High Court cannot have the effect of  reviving the proceedings which had been disposed of by  the Appellate Authority by its order dated January 7,  

1991. While considering the effect of an interim orderstaying the operation of the order under challenge, a  distinction has to be made between quashing of an  order and stay of operation of an order. Quashing of  an order results in the restoration of the position as it  stood on the date of the passing of the order which has  been quashed. The stay of operation of an order does  not, however, lead to such a result. It only means that  the order which has been stayed would not be operative  from the date of the passing of the stay order and it  does not mean that the said order has been wiped out  from existence. This means that if an order passed by  the Appellate Authority is quashed and the matter is  remanded, the result would be that the appeal which  had been disposed of by the said order of the Appellate  Authority would be restored and it can be said to be  pending before the Appellate Authority after the  quashing of the order of the Appellate Authority. The  same cannot be said with regard to an order staying  the operation of the order of the Appellate Authority  because in spite of the said order, the order of the  Appellate Authority continues to exist in law and so  long as it exists, it cannot be said that the appeal which  has been disposed of by the said order has not been  disposed of and is still pending. We are, therefore, of  the opinion that the passing of the interim order dated  February 21, 1991 by the Delhi High Court staying the  operation of the order of the Appellate Authority dated  January 7, 1991 does not have the effect of reviving the  appeal which had been dismissed by the Appellate  Authority by its order dated January 7, 1991 and it  cannot be said that after February 21, 1991, the said  appeal stood revived and was pending before the  Appellate Authority. In that view of the matter, it cannot  be said that any proceedings under the Act were  pending before the Board or the Appellate Authority on  the date of the passing of the order dated August 14,  1991 by the learned Single Judge of the Karnataka High  Court for winding up of the company or on November 6,  1991 when the Division Bench passed the order  dismissing O.S.A. No. 16 of 1991 filed by the appellant company against the order of the learned Single Judge  dated August 14, 1991. Section 22(1) of the Act could  not, therefore, be invoked and there was no impediment  in the High Court dealing with the winding up petition filed by the respondents. This is the only question that  has been canvassed in Civil Appeal No. 126 of 1992,  directed against the order for winding up of the  appellant-company. The said appeal, therefore, fails and  is liable to be dismissed.”

29. In order to appreciate the controversy, it is important to refer to Section  4 and 5 of the CrPC along with Section 65 and 71 of the PMLA. The  said provisions are quoted as under:- 

“CRPC 

4. Trial of offences under the Indian Penal Code and  other laws.—

(1) All offences under the Indian Penal Code (45 of  1860) shall be investigated, inquired into, tried, and  otherwise dealt with according to the provisions  hereinafter contained.

  (2) All offences under any other law shall be  investigated, inquired into, tried, and otherwise dealt  with according to the same provisions, but subject to  any enactment for the time being in force regulating the  manner of place of investigating, inquiring into, trying  or otherwise dealing with such offences.  

5. Saving.—Nothing contained in this Code shall, in the  absence of a specific provision to the contrary, affect  any special or local law for the time being in force, or  any special jurisdiction or power conferred, or any  special form of procedure prescribed, by any other law  for the time being in force.”

PMLA 

Section 65 : Code of Criminal Procedure, 1973 to apply The provisions of the Code of Criminal Procedure, 1973  (1 of 1974) shall apply, in so far as they are not  inconsistent with the provisions of this Act, to arrest,  search and seizure, attachment, confiscation, investigation, prosecution and all other proceedings   under this Act. 

Section 71 : Act to have overriding effect The provisions of this Act shall have effect  notwithstanding anything inconsistent therewith  contained in any other law for the time being in force.” 

30. 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. 

31. As far as the reliance of the Petitioners on the judgments is concerned,  the Hon’ble Supreme Court in Ashok Munilal Jain (supra) was faced  with the situation wherein there existed no provision in the PMLA which would even remotely be relatable to the power exercised by the  courts in remanding arrested persons to custody, and therefore, held  that Section 167 of the CrPC would apply to arrests made under the  PMLA. The Hon’ble Supreme Court had relied on the judgment in  Deepak Mahajan (supra) wherein the Hon’ble Supreme Court was  confronted with the similar issue in the context of the Customs Act and  the FERA. 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.

32. On the issue of the applicability of Section 160 of the CrPC to  investigations under the PMLA, specifically with regard to the  protection granted to a woman, and not with regard to the territorial  limitation, different Hon‟ble High Courts have rendered different  findings. The Hon’ble High Court of Gujarat in Foziya (supra) has held  that the proviso to Section 160 CrPC would apply but Hon‟ble High  Court of Judicature in Madras in Nalini Chidambaram (supra) has  held that the said protection would not be available. In my view,  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.

33. Though the said judgment can be based solely on the above finding, it  may be recorded that the protection under Section 160 of CrPC to a  woman is extended in order to keep women and children away from  police stations and police company considering the peculiar condition  of police stations in the country. It may further be noted that police  station has a specific statutory meaning and when any person is  summoned under Section 50 of the PMLA, including a woman, such  woman is not summoned to a „police station‟ as envisaged under  Section 160 of the CrPC. As per the judgment of the Hon’ble Supreme  Court in Nandini Satpathy (supra), the protection to a woman under  Section 160 CrPC serves a particular purpose in the context of police  stations and the police powers. The said purpose is absent from an  investigation under the PMLA which are conducted by high level  officers as defined under Section 48 of the PMLA, headed by the  Director who is appointed under Section 25 of the Central Vigilance  Commission Act. 

The offices of the Directorate of Enforcement cannot be said to  be police station under the meaning of Section 2(s) of the CrPC. It may be noted other persons would be summoned to the office of Directorate  of Enforcement during any investigation of proceeds of crime and may  also involve summoning any person who may not even be a witness  (like officials of bank etc) to be summoned to such offices requiring  them to furnish information in connection with the same. 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.  

34. It is further relevant to note that it is settled law that the legislature is  aware of the statues already enacted and when the PMLA was enacted  in 2002, the Parliament was aware of the protection afforded to a  woman under Section 160 CrPC. Despite being aware of the same, the  Parliament while enacting a similar provision providing for compulsory  attendance of persons, chose not to extend the same protection under  the PMLA Act. At the same time wherever the Parliament thought it to  be necessary it extended the protection to a woman under the PMLA, it  has specifically provided so – as is in case of Section 45 of the PMLA.  Therefore, on this point also, it is clear that there is an inconsistency  between Section 50 of the PMLA and Section 160 of the CrPC and also  there is a clear legislative intent behind not providing the protection in  the nature of the proviso to Section 160 of the CrPC to a woman under  Section 50 of the PMLA. 

35. As far as the judgment of the Division Bench of this Hon’ble Court in  Asmita Agarwal (supra) is concerned, it may be noted that FERA had  no overriding provision in the nature of Section 71 of the PMLA.  Therefore, when an officer operating under FERA summons a person  in absence of there not being an overriding provision in FERA, the  Hon‟ble Division Bench sought to interpret under Section 160 of CrPC  and Section 40 of FERA harmoniously in order to interpret them in  tandem. As opposed to the same, the PMLA clearly provides for an  overriding provision in case of any inconsistency and therefore, it is  imperative, as stated above, to give full effect to the provisions of the  PMLA. It would not be possible to interpret Section 50 of the PMLA  harmoniously with Section 160 of CrPC. In view of the difference in  the language and provision of the PMLA and FERA and specifically in  view of the absence of an overriding provision in FERA the reliance of  the Petitioners on the judgment in Asmita Agarwal (supra) is  misplaced. 

36. With regard to the allegation of mala fide it would be apposite to note  that the same is to be established to a specific assertion on the basis of  proven facts and not on the basis of conjectures and surmises. The  burden of establishing mala fide is very heavy on the person who  alleges it and further often requires relevant persons against whom such  allegations are made to be made parties to the petition so as to enable  them to respond to such allegations. 

37. In the present case, the Petitioners with regard to mala fide in their  written submission, had stated that “The Petitioners have reasonable apprehension that investigation conducted qua them is motivated and  mala fide.” In light of the settled law of the Hon’ble Apex Court on the  subject [Indian Rly. Construction Co. Ltd. v. Ajay Kumar, (2003) 4  SCC 579, Ajit Kumar Nag v. Indian Oil Corpn. Ltd., (2005) 7 SCC  764, Nirmal Jeet Singh Hoon v. Irtiza Hussain, (2010) 14 SCC 564,  Ratnagiri Gas and Power (P) Ltd. v. RDS Projects Ltd., (2013) 1 SCC  524], no allegation of mala fide cannot be sustained merely on the basis  of a reasonable apprehension and, therefore, this Court will refrain  from commenting further on the said issue. The assertion that certain  questions were put in a roving and fishing manner to the Petitioners  cannot be a ground to allege malafides as it is settled law that  investigation is the sole prerogative of the investigating agency as per a  long line of judgments starting from King-Emperor Vs. Khwaja Nazir  Ahmad, 1944 SCC OnLine PC 29. 

38. Further, so far as the allegations of malafides are concerned, the same  has no place in criminal investigations. Secondly, it is settled law that  allegations of malafides are easy to be made than to actually make out.  The allegations of malafides need to be corroborated with concise  statements of material facts which inspire confidence. Thirdly, apart  from non-applicability of such grounds in a criminal investigation, the PMLA and CrPC provides for enough and sufficient safeguard with  checks and balances to obviate any such apprehension.

39. So far as the reliance placed upon the interim order passed by the  Hon’ble Hon‟ble High Court of Calcutta in W.P.A. No. 17576 titled  Sumit Roy v. Union of India and Anr. is concerned, the same is  perused. The same is, on the face of it, an interim order in a  constitutional challenge to the PMLA without delving into the legal  position which is discussed hereinabove. It is a settled position that an  interim order is never a binding precedent even if the same is passed by  a coordinate bench of the same court when the matter is being heard  and decided finally. 

The interim order of the Hon‟ble Calcutta High Court, therefore,  may not be relevant when the issues are dealt with finally by this  judgment. It is surprising that in the very same investigation, accused  are choosing different forums substantially praying for the same relief.  However, in view of the examination on merits as above, the conduct  of the petitioners or that of the others is not gone into. 

40. With regard to the reliance of the Petitioners on the order dated  07.12.2021 in Writ Petition (Crl.) 1768 of 2021, it is stated that the  facts of the said case are clearly distinguishable from the present case  as the notices under the said case were not issued under the PMLA and  were rather issued under Section 160 of the CrPC and, therefore, clearly bound by the territorial limitations of the CrPC. The said  interim order does not further the case of the Petitioners on any ground.

41. 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. [SLP (Cr l) No. 4634/2014] 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. 

42. In light of the above and for all the above reasons, the challenge of the  Petitioners to the impugned notices/summons fails. The petition is  hereby dismissed. No order as to costs. All pending applications (if  any) are disposed of. 

 CRL.MC. 2442/2021 AND CRL.M.A. 16069/2021 

43. In light of the decision in WP(CRL) No.1808 of 2021, no legal issues  survives in the present petition. The factual issues raised by the  Petitioner herein can be urged before the jurisdictional Court. No  extraordinary case has been made out to exercise inherent powers under  Section 482 of the CrPC.

44. The lower courts may decide the issue without being influenced by the  observations made in the present judgment.  

45. In light of the above, the petition is hereby dismissed. No order as to  costs. All pending applications (if any) are disposed of. 

RAJNISH BHATNAGAR, J 

MARCH 11, 2022  

Sumant