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2022 (7) TMI 1412 - HC - Money LaunderingSeeking grant of bail - Money Laundering - involvement in gross corruption of financial irregularities by offering jobs of primary teachers to various persons in lieu of money - illegal accumulation of huge amount of money from unscrupulous job seekers - validity of an order allowing an Advocate on behalf of the accused to remain present during his interrogation - Legality and validity of the order passed by the learned Magistrate directing the Investigating Officer to take the accused to S.S.K.M. Super speciality Hospital for his medical treatment. Validity of an order allowing an Advocate on behalf of the accused to remain present during his interrogation - HELD THAT - On perusal of the entire materials on record as well as the decisions referred to by the learned A.S.G. this Court is of the view that the order passed by the learned Magistrate allowing an Advocate on behalf of the accused to remain present during his interrogation suffers from patent illegality and liable to be set aside. In the petition filed on behalf of the accused before the learned Magistrate an order allowing the learned Advocate for the opposite party to remain present during investigation was prayed for stating inter alia that during raid the E.D. did not allow the Advocate of the opposite party to be present which allegedly violated constitutional safeguard of the accused. However on perusal of the case diary it is found that the learned Advocate was present during raid conducted by the E.D. in the house of the accused and he talked to the accused. Therefore the allegation against the E.D. that the Advocate of the accused was not allowed to be present at the time of raid is palpably a false statement - the impugned order allowing the learned Advocate for the accused to be present during interrogation of the accused is set aside. Legality and validity of the order passed by the learned Magistrate directing the Investigating Officer to take the accused to S.S.K.M. Super speciality Hospital for his medical treatment - HELD THAT - As per the direction of the Hon ble Supreme Court in D.K. Basu 1996 (12) TMI 350 - SUPREME COURT the Investigating Agency is under obligation to get the accused examine medically. The Investigating Officer is also under obligation to get an accused medically treated after every 48 hours during the period of remand under police custody. It is on record that the accused was declared fit by a hospital run by the Central Government after he being medically examined after arrest. From the first order passed by the learned Magistrate rejecting the prayer of the accused for bail and remanding him to the custody of E.D. this Court does not find any submission made on behalf of the accused regarding his physical illness immediately after arrest the accused became so ill that he was admitted to S.S.K.M. Super speciality Hospital. It is needless to say that the Doctors start medical treatment of the patient after taking HIPPOCRATIC OATH. Therefore incredibility of medical practitioners and doctors should not be assumed. However our experience as a common man with regard to the role of the doctors attached to S.S.K.M. Super speciality Hospital is not happy - Under such background and considering the fact that the accused is the senior most Cabinet Minister in the State of West Bengal having immense power and position it would not be impossible for the accused with the aid of other political executives to take shelter under the garb of serious illness and medical treatment to evade interrogation. If this happens the Lady Justice will be cursed by the tears of hundreds and thousands of deserving candidates whose future was sacrificed in lieu of money. This Court passes the following direction - (i) The Investigating Agency is directed to take the accused by air ambulance to AIIMS Bhubaneswar in the early morning on 25th July 2022. (ii) The accused shall be taken to NSC Bose Airport Calcutta by an ambulance of S.S.K.M. Super speciality Hospital. (iii) He will be accompanied by a doctor of S.S.K.M. Super speciality Hospital and an Advocate for the accused. (iv) The AIIMS Bhubaneswar Authority is directed to medically examine the accused by a team of specialist doctors of Cardiology Nephrology Respiratory Medicines and Endocrinology. (v) The AIIMS Bhubaneswar will prepare a report and handover the copies of the same to the Investigating Officer Medical Officer of S.S.K.M. Super speciality Hospital and the learned Advocate for the accused by 3 00 p.m. on 25th July 2022. (vi) The Investigating Officer shall forward soft copy of the above-mentioned medical report to his counterpart in Calcutta who in turn shall produce it before the learned Special Judge under PML Act. (vii) The learned Special Judge shall take up the hearing of the case No. ECIR/KLZO-II/19/2022 dated 24th June 2022 at 4 00 p.m. on 25th July 2022. (viii) The Investigating Officer shall make necessary arrangement for the production of the accused through the medium of electronic video linkage under amending provision of Clause (b) of sub-section (2) of Section 167 of the Code of Criminal Procedure (West Bengal Act 20 of 2004 Section 3). Revision disposed off.
Issues Involved:
1. Legality of the orders passed by the Chief Metropolitan Magistrate. 2. Right of the accused to have an advocate present during interrogation under Section 41D of the Cr.P.C. 3. Medical treatment and hospitalization of the accused. Issue-wise Detailed Analysis: 1. Legality of the Orders Passed by the Chief Metropolitan Magistrate: The Assistant Director, Enforcement Directorate (E.D.), Kolkata Zonal Office, filed a criminal revision challenging the legality, validity, and propriety of two orders dated 23rd July 2022 passed by the Chief Metropolitan Magistrate (in charge), Calcutta. The orders were issued subsequent to the rejection of a bail application filed by the accused. The learned Magistrate rejected the bail application on the grounds that a case under the Prevention of Money Laundering Act (PMLA) is triable by the Special Court, and the Magistrate had no jurisdiction to entertain the bail application. The accused was remanded to the custody of the E.D. until 25th July 2022. 2. Right of the Accused to Have an Advocate Present During Interrogation Under Section 41D of the Cr.P.C.: The Magistrate allowed the accused's petition under Section 41D of the Cr.P.C., permitting an advocate to accompany the accused during the investigation. The Additional Solicitor General (A.S.G.) vehemently criticized this order, arguing that Section 41D entitles an arrested person to meet an advocate of his choice during interrogation but not throughout the interrogation. The A.S.G. cited the Supreme Court decision in Union of India & Ors. Vs. Pratap Narain & Ors. (1992)3 SCC 268, which held that the presence of lawyers at the time of interrogation cannot be insisted upon based on Article 21 of the Constitution. The Court found that the order allowing the advocate to be present during the entire interrogation was bad in law and set it aside, referencing the Delhi High Court's decision in Directorate of Enforcement Vs. Satyendar Kumar Jain (CRL.M.C.2869/2022 and CRL.M.A.11846/2022). 3. Medical Treatment and Hospitalization of the Accused: The Magistrate also directed the Investigating Officer to take the accused to S.S.K.M. Super Speciality Hospital for medical treatment, considering the accused's age and various medical conditions. The A.S.G. contended that the accused, a senior Cabinet Minister, might use his political influence to evade interrogation by staying in the hospital. The A.S.G. argued that the accused was already declared fit by a Central Government hospital after his arrest, and the subsequent application for medical treatment was a tactic to avoid further investigation. The Court acknowledged the general mistrust towards the S.S.K.M. Hospital due to past incidents involving political figures but emphasized that doctors should not be assumed to be incredible. To ensure impartiality, the Court directed the Investigating Agency to take the accused to AIIMS, Bhubaneswar, for medical examination by a team of specialist doctors. The medical report was to be submitted to the Special Judge under the PMLA by 3:00 p.m. on 25th July 2022. Conclusion: The Court set aside the order allowing the advocate to be present during the entire interrogation and directed the accused to be medically examined at AIIMS, Bhubaneswar, to ensure an unbiased medical report. The Special Judge under the PMLA was to consider the prosecution's remand application based on this report. The revision was disposed of accordingly.
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