9911796707
TMI Blog2023 (5) TMI 1030X X X X Extracts X X X X X X X X Extracts X X X X ..... y specific prayer with regard to the relief(s) sought for and made an innocuous prayer for passing appropriate order on the submissions made in the body of the application, but the Court upon hearing submissions made on behalf of all the appearing counsels and upon perusal of documents placed before the Court passed the said impugned order. The offence which ED is dealing with is under the Prevention of Money Laundering Act, 2002 and the predicate offence under the Prevention of Corruption Act, 1988 and the Indian Penal Code is being investigated by CBI. It appears from records that the investigation started a couple of months back and the same has proceeded to a fair extent. Several high ranking politicians including Member of Legislative Assembly, Minister-in-Charge of Education, ex President of the West Bengal Board of Primary Education, several persons in the Bengali film industry have been arrested and taken in custody. Astronomical amount of cash, documents, evidences both physical and electronic have been seized from the custody of the accused - There is hardly any scope to afford prior opportunity of hearing in a proceeding under PMLA. If the proposition of the applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any particular person and the said power to investigate is to be utilized effectively to reach the goal. It appears from the prayers made in the applications that recalling has been sought only for the portion of the order where direction has been passed for causing investigation of the involvement of the applicants. The applicants do not appear to be bothered by the investigation per se. It is only where direction has been passed to investigate their involvement, that the applicants oppose the same. The act of the applicants in pressing the instant applications raises doubt in the mind of the Court that the same have been filed with mala fide intention to deter the investigating officers to follow through the process of investigation which has already opened up a box of worms with more to follow suit. The idea is to delay the entire process to the extent possible so that the real culprits can remain shielded. In fact, on account of filing the applications neither the ED nor the CBI appear to have proceeded any further - If the trend to delay the main investigation and intimidate the investigating officers is not dealt with appropriately at the very first stage, then the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt/portion of the order directing investigation of the complaint of custodial torture lodged by KG. KG alleges that he is aggrieved by the said direction passed by this Court on 13th April, 2023 where the Court directed investigation to be conducted in connection with the complaint of custodial torture lodged by him before the Hastings police station. An application for intervention in the writ petition being CAN 5 of 2023 has been filed by one Abhishek Banerjee ( AB for short) who has averred that he is a Member of the Parliament from Diamond Harbour Constituency and is also the General Secretary of All India Trinamool Congress, the ruling political party of the State of West Bengal. He claims to be aggrieved by certain direction passed by the Hon ble Court on 13th April, 2023 in the present writ petition. He further alleges that he is a stranger to the writ proceeding where order has been passed against him behind his back, and accordingly, he seeks leave to intervene in the proceeding to put forth his defence. AB has also filed an application being CAN 6 of 2023 for recalling a portion of the order dated 13th April, 2023, wherein direction has been passed for investigatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licants are aggrieved by the same. It has been argued that the application on which the aforesaid direction was passed to investigate the speech of AB did not contain any material in connection with either of the applicants and, accordingly, such direction ought not to have been passed. The applicants submit that the aforesaid direction passed by the Court is prejudicial to them and there has been violation of the principle of natural justice. The applicants ought to have been heard prior to passing any order against them that is causing prejudice. Prayer has been made to permit AB to intervene and KG to be added in the matter and place their case before this Court. The primary ground for seeking recall of the said order is that the application on which the said order was passed, does not contain any pleading in connection with the public speech made by AB. No case was made out by the ED in the application mentioning that AB was anyway responsible for influencing the process of investigation that is continuing. No prayer has either been made in the application of the ED seeking direction for interrogating AB. It has been argued that the observation of the Hon ble Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the action of the Hon ble Judge is not in tune with the Bangalore Principles of Judicial Conduct of 2002 setting standards for ethical conduct of judges. The observation made in the order dated 13th April, 2023 reeks of mala fide where the Hon ble Judge transgressed the self imposed restriction while exercising writ jurisdiction. The Hon ble Judge did not have the power to conduct an inquisitorial trial. Supervision of the process of investigation is permissible, but conducting an inquisitorial trial is not. It has been argued that, the fact that the Hon ble Supreme Court directed reassignment of the writ petition before any other Judge of this Court upon going through the English translation of the television interview which went on air proves that the Hon ble Supreme Court clearly held that bias was evident. The assignment of the matter before this Bench is enough indication of bias. In this connection reliance has been placed upon the judgment delivered by the Hon ble Supreme Court in the matter of Ranjit Thakur vs. Union of India Ors. reported in (1987) 4 SCC 611 wherein the Court held that, to test the likelihood of bias what is relevant is the reasonablene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court that there is a sinister design to make allegations against the investigating officers of different scams to terrorize the officers has practically sealed the fate of KG to avail the benefit of obtaining bail. In view of the aforesaid observation of the Court, KG will not be in a position to seek release on bail. Learned advocate representing KG relies upon the decision delivered by the Hon ble Supreme Court in the matter of Lalita Kumari vs. Government of Uttar Pradesh Ors. reported in (2014) 2 SCC 1 wherein the Court held that registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. Learned advocates representing the writ petitioners, the ED and the CBI vehemently oppose the submissions and prayers of the applicants. It has been submitted that the applicants, though not parties in the instant proceeding, are directly involved with the recruitment scam. The hands of the investigating agencies ought not to be tied from interrogating any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder passed upon personal knowledge of the Hon ble Judge, order passed in the absence of proper pleadings and all other issues raised in the application for recalling, intervention and addition of party were all available and argued before the Hon ble Supreme Court. Had the Hon ble Supreme Court intended to grant any liberty to the applicants to seek recall of the order complained of, then the same would have been specifically recorded in the order itself. Prayer made before the Court which is not allowed is considered to be refused by the Court and the same cannot be re-agitated again before the assignee judge. Learned advocate representing ED categorically submits that there is nothing on record or otherwise in support of the contention of bias. It has also been submitted that the order was passed by the Hon ble Judge relying upon submissions and documents made available before the Court. The order complained of was passed not upon the personal knowledge of the Hon ble Judge but strictly on the basis of submissions and documents placed before the Court. The complaint letter of KG making wild allegation against the investigating officers was placed before the Court. The o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch in question was not delivered by him. AB is suffering from a perceived paranoia in facing the investigation. AB being a Member of the Parliament, ought to cooperate with the investigating officer to unravel the persons involved in the scam. Acting on the direction passed by the Hon ble Court, notice under Section 160 CrPC was issued to AB on 16th April, 2023 with a direction to appear before the CBI on 18th April, 2023. AB deliberately suppressed the fact of issuance of the said notice and has intentionally tried to mislead the Court. The fact of issuance of the said notice was also not brought to the knowledge of the Hon ble Supreme Court as there is no reference to the said notice in any of the orders passed by the Hon ble Supreme Court. It has been stressed that suppression of such vital fact is a conscious effort to delay and forestall the investigation. It has been submitted that the Hon ble Judge was overseeing the investigation and, accordingly, it is absolutely proper for the Hon ble Judge to pass order on appreciation of all facts and documents placed before the Court. The close proximity of timing of the public speech made by AB and the complaint lodged by the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r not to have restrained the police from lodging any FIR against the ED. It has been submitted that the police is duty bound to act on the complaint of custodial torture lodged by an undertrial. It has further been argued that ED, not being a party in the writ proceeding, the application of a third party ought not to have been entertained. I have heard and considered the rival submissions made on behalf of all the parties. This Bench has been apprised of the fact that ED has been impleaded as party respondent in the writ proceeding. It is seen that the applicants are not parties in the writ proceeding. Both allege that portion of the order dated 13th April, 2023 directing the investigating agencies to conduct investigation is prejudicial to them as the same was passed without granting them an opportunity of hearing. There was no material on record which prompted the Hon ble Judge to pass such order. Allegation of negative bias of the Hon ble Judge against one of the applicants (AB), has been stressed upon. The application on which the impugned order was passed was filed by ED wherein it was mentioned that one of the accused who is presently in custody in the PMLA case i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... correct. It is for the investigating agencies to take note of the same and proceed in the matter in accordance with law. The offence which ED is dealing with is under the Prevention of Money Laundering Act, 2002 and the predicate offence under the Prevention of Corruption Act, 1988 and the Indian Penal Code is being investigated by CBI. It appears from records that the investigation started a couple of months back and the same has proceeded to a fair extent. Several high ranking politicians including Member of Legislative Assembly, Minister-in-Charge of Education, ex President of the West Bengal Board of Primary Education, several persons in the Bengali film industry have been arrested and taken in custody. Astronomical amount of cash, documents, evidences both physical and electronic have been seized from the custody of the accused. The investigation is in full swing and in the course of the same the officers are regularly collecting information in connection with the crime and taking necessary consequential steps. PMLA does not require grant of a prior opportunity of hearing to a suspected accused. It is only in the course of investigation that the officers of ED will be ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of such fact have to be pleaded and annexed to it. In the instant case the investigation conducted by the agencies is criminal in nature as held by the Hon ble Supreme Court in Ram Kishan Fauji -vs- State of Haryana Ors. reported in (2017) 5 SCC 533. ED in its application clearly mentioned about the involvement of politically exposed persons who are trying to lodge complaints against the officers of ED in a desperate attempt to thwart the investigation process. The learned counsel representing ED specifically submitted that though the investigating officers were aware that there is involvement of politically exposed persons to stall the investigation process, but as the name(s) of such politically exposed persons were not readily available, accordingly, names of such persons could not be mentioned in the said application. This Bench is of the view that the materials placed before the Hon ble Judge taking up the matter were enough to pass the order under reference. The pleading and the information required for passing such direction were duly made available before the Court. As regards the issue raised with regard to entertaining the application by the Court taking u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The said principle has a different connotation in a proceeding involving civil consequences but has an absolute contrary implication in a criminal proceeding. Application of the principle of natural justice in connection with PMLA and the predicate offences is practically nil. Summoning a person for interrogation in connection with a public scam of such humungous magnitude does not ipso facto imply that coercive step will be taken against him; neither does it suggest that he is an accused or a suspected accused. It is only when there is sufficient evidence of involvement of the said person in the crime, that steps will be taken in accordance with law. But there is absolutely no requirement to hear a person prior to issuance of notice for appearing and deposing before the investigating officer. There is no application of the principle of natural justice requiring prior opportunity of hearing to be given to a person who may be required for investigating a crime. There are enough safeguards in the Act itself where steps may be taken against the erring officers for vexatious searches. The offences under the PMLA are cognizable and non-bailable, subject to the conditions laid down. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring and for matters connected therewith or incidental thereto. Under the Act, investigation includes all the proceedings conducted by the Director or by any authority authorized by the Central Government under the Act for collection of evidence. The adjudicating authorities under the Act consist of persons having experience in the field of law, administration, finance or accountancy. The members of the adjudicating authority have wide power to implement the provisions of the Act. The authority has the power to enforce attendance of any person, compel production of records, receive evidence of affidavits and every proceeding is to be deemed to be judicial proceeding within the meaning of the Indian Penal Code. The members of ED are experienced enough to handle threats/harassments similar to the nature of complaint as lodged by KG, the accused in custody. The Court would like to believe that the investigating officers would be able to tackle all or any complaint filed by or on behalf of an accused, co-accused or proposed/suspected accused with the sole intention to dislodge the ongoing investigation process. The Court firmly believes that the investigating officers would neith ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order passed by the Hon ble Supreme Court can be brought to the knowledge of the High Court by filing interlocutory application. Only to dispel the doubt of bias of the Hon ble Judge, the Hon ble Supreme Court was pleased to direct reassignment of the matter. This Bench is of the opinion that the applications for recalling will be barred by the principles of constructive res judicata. All applications as indicated in the order of the Hon ble Supreme Court has to be necessarily interpreted as applications on issues not decided by the Court. The same cannot be read as application with issues already adjudicated and decided by the Court. If the former interpretation is to be accepted, then there will be no end to a dispute and there will be a possibility of the losing party approaching the Court to reargue and re-agitate the issue all over again. Finality of an issue can never be reached. The same is contrary to the principle of res judicata. It appears from the prayers made in the applications that recalling has been sought only for the portion of the order where direction has been passed for causing investigation of the involvement of the applicants. The applicants do n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther. The notice under 160 CrPC issued in favour of AB is yet to be acted upon even though there is no order restraining the investigating authority to proceed with the same. The applicants have indeed been successful in interrupting the investigation to a great extent. It is high time that the investigation process be brought back to the right track and proceeded in the right earnest so that the same reaches its logical conclusion at the earliest. If the trend to delay the main investigation and intimidate the investigating officers is not dealt with appropriately at the very first stage, then the same will develop as a style and very many investigations in future may be held up for the same reasons. Such a move must be stubbed with an iron hand and upon imposition of exemplary costs so that the same has a deterring effect and similar offenders will be compelled to think a multiple time before adopting such a stand. In view of the discussions made herein above no relief can be granted to the applicants. The applications being CAN 3 of 2023, CAN 4 of 2023, CAN 5 of 2023 and CAN 6 of 2023 fails and are hereby dismissed with costs assessed at rupees fifty lac, out of which ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
