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2018 (4) TMI 1410 - HC - Money LaunderingOffence under PMLA Act - writ petitioner is seeking exemption only on the ground that a woman is exempted from personal appearance under Section 160 of the Code of Criminal Procedure - Held that - Except by claiming that women are exempted under Section 160 of the Code of Criminal Procedure the facts regarding the position status and capacity of the writ petitioner to travel and provide informations to the authorities are not denied. The writ petitioner being a Senior Advocate and having active and lucrative practice in various High Courts and before the Supreme Court of India cannot say that she is not capable of personally appearing before the authorities concerned for the purpose of investigation. More-so this Court expect that the respected Senior Advocate like the writ petitioner should not shy away from co-operating for an effective investigation of such offences committed under the provisions of the PMLA . When such is the current position the spirit of Section 160 cannot be interpreted so as to nullify or paralise an effective investigation process of cases under PMLA. No writ can be entertained against the summons issued for the personal appearance of a person in order to give evidence or statement. The writ petition against such summons issued under the provisions of the Special Act namely PMLA can be entertained only on exceptional circumstances. Judicial review in this regard are certainly limited. The statements/explanations and the documents submitted by the authorised representative of the writ petitioner Shri N.R.R.Arun Natarajan were not satisfactory and certain ingredients are to be ascertained only by getting a personal statement from the writ petitioner in relation to the financial transactions. Therefore this Court is of an opinion that there is no irregularity or illegality in respect of insisting the writ petitioner for personal appearance for the purpose of seeking certain clarifications so as to cull out the truth in relation to the financial transactions and the documents filed by the writ petitioner before the Enforcement Directorate through her authorised Agent. this Court is of an opinion that the writ petitioner based on mere apprehension cannot be permitted to move this writ petition that the respondents are having certain personal motive. Absolutely there is no materials on record to show that there are personal motive against the writ petitioner. The personal motives or the mala fide intention are to be substantiated with sufficient materials. A mere statement made in an affidavit that the authorities are having certain personal motive or mala fide intention can never be accepted for the purpose of granting the relief in a writ petition more specifically in the nature of a case like on hand. The investigation process should not be hampered at this stage. The decisions in this regard are to be taken only after the completion of the investigation by the competent authorities by strictly following the provisions of law. The Courts cannot presume that what possible actions could be taken by the competent authorities at this stage even before the completion of the investigation. Thus this Court is of a strong opinion that interference at this stage in respect of the facts and the circumstances of the present case on hand is certainly unwarranted - the respondents are directed to issue fresh summons fixing a date for the purpose of continuing the investigation and proceed with the same in accordance with law. Accordingly the writ petitions are devoid of merits and stand dismissed.
Issues Involved:
1. Validity of the summons issued by the Enforcement Directorate under Section 50(2) and (3) of the Prevention of Money Laundering Act, 2002 (PMLA). 2. Applicability of Section 160 of the Code of Criminal Procedure (Cr.P.C.) to the summons issued under PMLA. 3. Jurisdiction and powers of the Enforcement Directorate under PMLA. 4. Alleged malice and ulterior motives behind the issuance of summons. 5. Rights and obligations of the petitioner as a lawyer under PMLA. Detailed Analysis: 1. Validity of the Summons Issued by the Enforcement Directorate: The court examined the summons issued to the petitioner by the Enforcement Directorate (ED) under Section 50(2) and (3) of PMLA. The ED has the authority to summon any person whose attendance is considered necessary for giving evidence or producing records during an investigation. The court emphasized that the summons was issued to obtain clarifications regarding financial transactions and documents submitted by the petitioner. The court found no irregularity or illegality in the issuance of the summons, as the ED is empowered to secure personal appearance for effective investigation. 2. Applicability of Section 160 Cr.P.C. to PMLA Summons: The petitioner argued that as a woman, she is exempt from personal appearance under Section 160 Cr.P.C., which states that no woman shall be required to attend at any place other than her residence. The court clarified that while Section 160 Cr.P.C. provides certain exemptions, these are not absolute and must be applied constructively. The court noted that the petitioner, being a Senior Advocate with active practice, is capable of attending the investigation in person. The court held that the provisions of PMLA, being a special act, have an overriding effect over the general provisions of Cr.P.C., and therefore, the exemption under Section 160 Cr.P.C. does not apply in this case. 3. Jurisdiction and Powers of the Enforcement Directorate: The court discussed the jurisdiction and powers of the ED under PMLA. It highlighted that PMLA is a special act enacted to prevent money laundering and to provide for the confiscation of property derived from or involved in money laundering. The court noted that the ED has the authority to summon any person for investigation and that such summons are deemed to be judicial proceedings. The court emphasized that the ED's actions are within the scope of its powers under PMLA, and the petitioner is obligated to comply with the summons. 4. Alleged Malice and Ulterior Motives: The petitioner alleged that the summons were issued with malice and ulterior motives, particularly because they were scheduled on Fridays, raising concerns about potential arrest. The court dismissed these allegations, stating that there was no material evidence to substantiate claims of malice or ulterior motives. The court noted that the ED's actions were part of the investigation process and that the petitioner’s apprehensions were based on mere speculation. 5. Rights and Obligations of the Petitioner as a Lawyer: The petitioner contended that investigating a lawyer under PMLA for professional fees received is unprecedented and threatens the independence of the legal profession. The court rejected this argument, stating that no one, including lawyers, is above the law. The court emphasized that the petitioner, as a responsible citizen and a Senior Advocate, should cooperate with the investigation. The court also noted that the petitioner had already submitted documents through her authorized representative, but further personal clarifications were required. Conclusion: The court concluded that the summons issued by the ED under Section 50(2) and (3) of PMLA are valid and within the scope of its powers. The court held that the provisions of PMLA have an overriding effect over the general provisions of Cr.P.C., and therefore, the exemption under Section 160 Cr.P.C. does not apply. The court dismissed the writ petitions, directing the ED to issue fresh summons for the petitioner’s personal appearance to continue the investigation. The court emphasized the importance of cooperation in the investigation process to ensure effective prosecution of offenses under PMLA.
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