9911796707
TMI Blog2023 (9) TMI 1380X X X X Extracts X X X X X X X X Extracts X X X X ..... the proceedings being ECIR/KLZO-II/19/2022 under Sections 3 and 4 of the Prevention of Money Laundering Act, 2002 dated 24.6.2022 along with the summons issued by Enforcement Directorate under Sections 50(2) and 50(3) dated 8.6.2023 under the said Act against the petitioner. The prayers which have been advanced in the present revisional application are two- fold. Firstly, relating to the quashing of the ECIR and, secondly, relating to the summons dated 8.6.2023 issued by the Enforcement Directorate. The background of the case relates to an order dated 10.7.2023 passed by the Hon'ble Supreme Court in SLP (C) No. 11588-11589/2023, which was preferred by the petitioner and the relevant part of the said judgment/order, necessitated for the purpose of the present litigation, is set out as follows: "9 we are inclined not to interfere with the impugned order since the consequence of doing so would be to stifle the investigation at the incipient stage. However, the petitioner is at liberty to pursue all remedies which are available in law, including under Section 482 of the Code of Criminal Procedure 1973. In the event that the petitioner takes recourse to such remedies as are availab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at "The Writ Petitions, all application filed in the writ petitions and any further application/s that may be filed including Review Application/s are assigned to Hon'ble Justice Amrita Sinha." The Learned ASG also pointed out that the order dated 14.7.2023 passed by the Hon'ble Justice Amrita Sinha in WPA 9979 of 2022, which is as follows: "On the adjourned date the learned advocates appearing for the CBI and the ED shall give the details of the Investigating Officers who are investigating the municipal scam case." This Court enquired from the learned ASG as to whether bail application and other related criminal matters should be taken up by the same Hon'ble Judge, who is in seisin, of WPA 9979 of 2022. To this, Learned ASG submitted that according to his understanding of the orders it is the same Hon'ble Judge who is in seisin of WPA 9979 of 2022, who should take up the bail matters relating to this case. There were counter arguments by Dr. Singhvi, Learned Advocate appearing for the petitioner, which need not be gone into. But, it is a fact when earlier bail applications in connection with the same ECIR in respect of the other accused persons were taken up by this Court, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Learned Senior Advocate relied upon certain instances which are summarised as follows: Sl. Date Particulars of Incident 1. March, 2019 INSTANCE 1: Petitioner's wife and sister-in-law were detained in Kolkata by Customs Officials. 2. March, 2019 INSTANCE 2: Petitioner's wife threatened with cancellation of her OCI Card. 3. February, 2021 INSTANCE 3: Petitioner's wife and Sister-in-law summoned by CBI in coal scam matter. 4. September 2021 INSTANCE 4: Movement of petitioner's wife monitored by Central Investigating Agency. 5. July 2021 INSTANCE 5: Petitioner and his close aides' phones were targeted by Pegasus spyware. 6. August 2021 INSTANCE 6: Petitioner and his wife summoned to appear in New Delhi by ED, while cause of action for investigation arose in West Bengal. 7. September 2021 INSTANCE 7: Petitioner's personal secretary summoned by ED in New Delhi in coal scam. 8. June 2022 INSTANCE 8: Petitioner and his wife prohibited from travelling abroad seeking medical treatment. 9. February - April 2021 INSTANCE 9: Sensitive information about investigation leaked to media by Central Investigating Agency targeting the petitioner. 10. July 2022 INSTANC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Rs. 25 lakhs imposed by the Hon'ble Single Judge granting liberty to the petitioner to take recourse before the Hon'ble High Court, Calcutta including filing petition under Section 482 of the Cr.P.C. It was submitted that pursuant to the order dated 18.5.2023, the petitioner was summoned by the CBI at its office at Calcutta on 20.5.2023 by serving 24 hours notice. The petitioner at the relevant point of time was involved in a political rally throughout the State and in the midst of the same, the petitioner had to return to Calcutta. The petitioner made himself available for examination before the CBI office on 20.5.2023. The petitioner thereafter resumed his State wide rally when he was served with another summon on 8.6.2023 by the E.D. to provide voluminous information and documents, which included documents, dated back to 2012 and had nothing to do with the petitioner's speech and his association with Kuntal Ghosh. Vide letter dated 13.6.2023 the petitioner responded to the summons issued by the E.D. thereby seeking clarification regarding the scope and purport of investigation and deliver time to compile the voluminous information of the documents sought by the agency. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kollur -vs- Directorate of Enforcement, the Hon'ble Supreme Court has held that a person cannot be prosecuted under PMLA Act on any notional basis on the assumption that a scheduled offence has been committed unless a predicate case is registered. It was submitted that considering the facts and circumstances of the instant case as on 13.4.2023 neither there was any complaint registered against the petitioner nor there was any pending enquiry or trial. It was further contended that a Joint reading of Section 2(u) and Section 3 of PMLA Act requires a person to be directly or indirectly involved with proceeds of crime. In the instant case, the petitioner's act of giving public speech has no relevance with any financial transaction/scam/proceeds of crime. Thus, the ED do not have any materials against the petitioner to indicate that there is any alleged money trail leading to the petitioner herein, which justifies the petitioner's stand that the entire investigation reeks of malice and has been initiated with oblique motives. The learned senior advocate submits that not only in the instant case, but taking into account other surrounding facts and circumstances, it would reflect that o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after the order dated 13.04.2023 and 18.05.2023 was passed by the Hon'ble High Court, the petitioner received the first summons on 08.06.2023 which according to the petitioner, is clearly in furtherance of the High Court order. It was submitted that the clarification by the ED that the petitioner is not called pursuant to the High Court's order but in course of the ongoing investigation, is merely an afterthought for the purposes of implicating the petitioner in the alleged scam without there being any material to show that the petitioner is privy to any information or evidence relating to the proceeds of crime. It was submitted that the Central Agencies are being misused by the Central Government to specifically target and harass the petitioner and his family members as they belong to an opposition political party. Learned senior advocate in order to substantiate his argument relied upon the following decisions: Reference was made to Vijay Madanlal Chaudhary Vs. Union of India, reported in 2022 SCC Online 929, paragraphs 253 and 283 which have been relied upon are as follows: "253. Tersely put, it is only such property which is derived or obtained, directly or indirectly, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctivity relating to a scheduled offence. It is concerning the process or activity connected with such property, which constitutes the offence of money-laundering. The Authorities under the 2002 Act cannot prosecute any person on notional basis or on the assumption that a scheduled offence has been committed, unless it is so registered with the jurisdictional police and/or pending enquiry/trial including by way of criminal complaint before the competent forum. If the person is finally discharged/acquitted of the scheduled offence or the criminal case against him is quashed by the Court of competent jurisdiction, there can be no offence of money- laundering against him or any one claiming such property being the property linked to stated scheduled offence through him." 9. The result of the discussion aforesaid is that the view as taken by the Trial Court in this matter had been a justified view of the matter and the High Court was not right in setting aside the discharge order despite the fact that the accused No. 1 had already been acquitted in relation to the scheduled offence and the present appellants were not accused of any scheduled offence. Attention of the Court was drawn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceeding ought to be quashed. In para 7 of the judgment, the following has been stated: (SCC p. 703) "7. ... In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto." 27. Further in para 8 the following was stated: (Dev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 482 of the Code of Criminal Procedure (CrPC) or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely. We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant of sanction; (ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged; (iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. 7. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process, no doubt should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s scam started only with the registration of the FIR by CBI ACB Kolkata and thereafter recording of ECIR by the ED for investigation into the offence of money laundering. During the course of the investigation of this case under PMLA, a Prosecution Complaint against 8 accused persons including Shri Partha Chatterjee and Ms. Arpita Mukherjee was filed on 19.09.2022 before the Hon'ble Special Court (PMLA), Calcutta. Further, the 1st Supplementary Prosecution Complaint against 6 accused persons and entities including Shri Manik Bhattacharya, MLA and the Ex-President of the West Bengal Board of Primary Education, Shri Tapas Kumar Mondal and others was filed in the Teachers Recruitment Scam in West Bengal before the Hon'ble Special Court (PMLA), Calcutta on 07.12.2022. The 2nd Supplementary Prosecution Complaint in the case has been filed on 21.03.2023 against Kuntal Ghosh and the 3rd Supplementary Prosecution Complaint was filed on 08.05.2023 against Shri Shantanu Banerjee and Shri Ayan Sil amongst others. That 4th supplementary Prosecution Complaint dated 28.07.2023 has also been filed against Shri Sujay Krishna Bhadra and others. The Hon'ble Special Court, Calcutta has taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of PMLA. The matter was first taken up on 20.07.2023 by the Hon'ble High Court of Calcutta wherein it has been observed that the documents are to be placed before the court for assessment in respect of materials appearing against the petitioner. In this respect, attention of the Hon'ble High Court of Calcutta was invited towards the copy of the 4th Supplementary Prosecution Complaint dated 28.07.2023 filed by the ED against Sujay Krishna Bhadra and other before the Ld. Special Court (PMLA). It is pertinent to mention that the present matter has already travelled to the Hon'ble Supreme Court wherein the instant petitioner had challenged the order dated 18.05.2023 of the Hon'ble High Court of Calcutta passed in CAN 5 & CAN 6 in WPA No. 9979 of 2022 in the matter of Soumen Nandy Vs State of West Bengal & Ors. The Hon'ble Supreme Court in SLP (C) No 11588-11589/2023 had disposed of the said matter by refusing to interfere with the order dated 18.05.2023 of the Hon'ble High Court of Calcutta since the consequence of doing so would be to stifle the investigation at the incipient stage. The grounds taken by the Petitioner in the instant CRR application are similar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce. The said actions of the Petitioner are completely contrary to the judgement of the Hon ble Supreme Court in the case of Dukhishyam Benupani, AD, ED (FERA) Vs. Arun Kumar Bajoria in Appeal (Crl) 1116 of 1997 wherein it has been held that it must be left to the investigating agency to decide the venue, the timings and the questions and the manner of putting such questions to persons involved in offences. That it is also pertinent to mention that the accused Shri Sujay Krishna Bhadra having a close financial association with the Petitioner Abhishek Banerjee is also trying his best to somehow avoid and scuttle the investigation. In this regard, it is informed that the accused Shri Sujay Krishna Bhadra was to be interrogated in Judicial Custody under the orders of the Hon'ble Special Court under PMLA on 27.06.2023, however, the same could not be done as the wife of the accused passed away in the early hours of 27.06.2023. Thereafter, the accused was granted a parole of 3 days by the Jail authorities under the West Bengal Jail Code. The accused contemporaneously on 27.06.2023 filed a bail application before the Hon'ble High Court at Calcutta on the grounds of passing away ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oned vis-a-vis the offence of money laundering that a decision regarding their prosecution or otherwise is taken. That a total of 184 summons have been issued in the Primary Teachers Recruitment Scam so far for collection of information and evidence. That a total of 5 Prosecution Complaints (1 PC and 4 Supplementary PC have been filed in the case so far with 25 persons and entities being made accused. That only 9 persons (individuals) have been prosecuted so far in the case out of the total of more than 100 persons examined. Therefore, the apprehension of the Petitioner and criminal revision in itself is premature at this stage. The Petitioner ought to cooperate with the agency at such an incipient stage of the investigation qua him. That evidence in the present investigation is emerging on a daily basis. That this is the biggest scam in the history of education department of West Bengal wherein thousands of candidates have been looted and cheated by the agents/middlemen at the behest of the politically powerful including the Ex-Cabinet Minister of Education. That the Petitioner herein is also one of the most powerful politicians of the state of West Bengal wielding enormous cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that such ECIR has not been recorded, does not come in the way of the authorities referred to in Section 48 of the 2002 Act to commence inquiry/investigation for initiating civil action of attachment of property being proceeds of crime by following prescribed procedure in that regard." It was contended that the prayer for quashing by any person other than an accused named in ECIR/FIR/Complaint is not maintainable. The reliance in this regard was placed in the judgement of the Hon'ble Supreme Court in Hukum Chand Garg & Anr. Vs. The State of Uttar Pradesh & Ors. [order dated 07.02.2022 passed by the Hon'ble Supreme Court in SLP (Crl) 762/2020]. The relevant paragraph is set out as follows : "It is not in dispute that the petitioners have not been named as accused in the said crime. If the petitioners have not been named as accused in the said crime, the question of quashing of stated FIR or the case now under investigation by the Central Bureau of Investigation (CBI) arising from the said crime, does not arise as the petitioners will have no locus to seek such a relief. In other words, the petitioners not being named as accused in the said crime or the case now registered by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the writ petition where the petitioners pray for issuance of mandamus to determine the 1 question of law, as to whether the allegation of commission of offence under Section 135 of the Customs Act, 1962 would construe a bailable offence with further directions to comply with Sections 154, 155 and 157 of the Code of Criminal Procedure to investigate a cognizable/non-cognizable offence, if any, under Section 135 of the Customs Act. In fact, when we perused the averments contained in the Writ Petition the provocation for the petitioner to file this writ petition was the so-called search conducted in the residential premises of the petitioner's ex-wife on 11.06.2013, who was residing at C-103, Gokul Divine, James Wadi, Irla, Ville Parle (West), Mumbai-400 056 and nothing incriminating was detected in the said search. It was further averred therein that the Officers threatened that the petitioner would be arrested, incarcerated in jail and would face dire consequence if he would not submit to their dictates. On that basis the writ petition came to be filed in this Court under Article 32 of the Constitution of India. We, therefore, expressed that it was highly premature for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accept the submission of the learned counsel for the petitioner that the cause of action is based on the repeated summoning of the petitioner in spite of his illness, which gave rise to the reasonable apprehension that the petitioner will be forced to give statements against his will. I find no basis for such apprehension inasmuch as the date for appearance was changed by the 2nd respondent on three occasions, acceding to the request made by the petitioner. Having commenced an investigation or proceeding, the 2nd respondent cannot be expected to wait indefinitely to suit the petitioner's convenience. As held by the Apex Court in Dukhishyam Benupani, it is not for this Court to monitor the investigation and to decide the venue, the timings, the questions and the manner of questioning......." Learned Additional Solicitor General also relied upon paragraph 143 of the judgement of Virbhadra Singh Vs. Enforcement Directorate reported in 2017 SCC OnLine Del 8930, the relevant paragraph of which is as follows: "143.... The powers conferred on the Enforcement Officers for the purpose of complete and effective investigation include the power to summon and examine "any person". The la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se. What the respondents sought by filing two criminal applications under Article 226 of the Constitution before the High Court was the direction to the appellant herein not to arrest them in exercise of the power conferred by Section 69(1) of the GST Act, 2017. This, in essence, is key to prayer for anticipatory bail. However, as we have explained aforesaid, at the stage of summons, the person summoned cannot invoke Section 438 of the Code of Criminal Procedure." Additionally, it was submitted that in the present case also the Hon'ble Supreme Court has observed that the investigation being at the incipient stage cannot be stultified. Learned Additional Solicitor General contended that the Investigating Agency has independent powers of enquiry/investigation which is not dependent on any court orders. Reliance was also placed on State of Bihar vs. J.A.C Saldanha reported in (1980) 1 SCC 554 wherein it was held as follows:- "19. The power of the Magistrate under Section 156(3) to direct further investigation is clearly an independent power and does not stand in conflict with the power of the State Government as spelt out hereinbefore. The power conferred upon the Magistrate unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as only tried to avoid the investigation at any cost by filing various applications before the courts. The petitioner was last summoned on 08.06.2023 to appear on 13.06.2023 along with the documents. However the petitioner decided not to appear on the said date on the grounds on being busy with campaigning for the Panchayat elections in the State of West Bengal. It was stated that the petitioner did not even submit complete documents as has been claimed by him in the revisional application. The documents which were submitted on 26.06.2023 before the Office of the Enforcement Directorate at Kolkata was incomplete. The petitioner's action itself speaks that he is not cooperating with the investigating agency and as such after defying the summons on the garb of Panchayat elections and political rally, he left for USA. The action of the petitioner is contrary to the judgement laid down by the Hon'ble Supreme Court in the case of Dukhishyam Benupani, AD, ED(Fera) Vs. Arun Kumar Bajoria reported in (1998) 1 SCC 52, the relevant paragraph no. 7 as relied upon, is as follows: "7. It seems rather unusual that when the aggrieved party approached the High Court challenging the order passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or Advocate appearing for the affected parties submitted that there has been a recruitment scam which relates to the appointment of teachers. The investigation commenced on the direction passed by a Co-ordinate Bench exercising its powers under Article 226 of the Constitution of India. The said investigation presently is a Court monitored investigation wherein Special Investigating Team has been constituted to unearth the mode and manner in which ineligible candidates were appointed and successful/competent candidates were denied their rightful claim. It has also been brought to the notice of this Court that the authorities thickly connected with the education system which includes Cabinet Minister, the President of Board of Primary Education, senior functionaries in the education system as also political personalities have been arrested and detained for their involvement in the scam. The investigating authorities are working for unearthing the truth. Additionally it has been submitted that orders are being passed on reports being submitted in WPA 7907 of 2019 with WPA 9979 of 2022. The investigation is still in progress and as such in a case where the provisions have been invoked ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ukhishyam Benupani, Asst. Director, Enforcement Directorate vs. Arun Kumar Bajoria (supra) relied upon by the Enforcement Directorate was distinguished by the petitioner on the facts that the said case related to anticipatory bail while the present application is being considered under Section 482 of the Code of Criminal Procedure. It was also submitted that there being distinction between the FERA, 1973 and the PMLA, 2002, the ratio set out therein is not applicable to the facts of the present case. Reference to paragraph 86 in King Emperor vs. Khwaja Nazir Ahmad (supra) was also distinguished by contending that the demarcation between the police officials and Enforcement Directorate Officials have been curved out in the case of Vijay Madanlal Choudhary & ors. (supra) and the same cannot be made applicable in the present case. Learned advocate for the petitioner also distinguished the judgements of P. Chidambaram vs. Directorate of Enforcement (supra) and Hema Mishra (supra) which related to Section 438 of the Code of Criminal Procedure and submitted that each and every case so relied upon by the Enforcement Directorate are on different set of facts and circumstances and the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer. We may, however, notice the factual matrix on the basis of which the High Court has reached the findings of mala fide against the informant and the Investigating Officer....." Additionally reliance was placed on State of Maharashtra -Vs. - Ishwar Piraji Kalpatri & Ors. reported in (1996) 1 SCC 542 which is as follows: "22. In fact, the question of mala fides in a case like the present is not at all relevant. If the complaint which is made is correct and an offence had been committed which will have to be established in a court of law, it is of no consequence that the complainant was a person who was inimical or that he was guilty of mala fides. If the ingredients which establish the commission of the offence or misconduct exist then, the prosecution cannot fail merely because there was an animus of the complainant or the prosecution against the accused. Allegations of mala fides may be relevant while judging the correctness of the allegations or while examining the evidence. But the mere fact that the complainant is guilty of mala fides, would be no ground for quashing the prosecution. In the instant case, specific averments of facts have been made whereby it was alleg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2. April, 2023 INSTANCE 2: The Opposite Party has traversed well beyond the limited scope of investigation as directed by this Hon'ble Court vide order dated 13.04.2023 as it has initiated a fishing and roving enquiry pursuant to the aforesaid order which is unconnected to any linkage between the speech delivered by the Petitioner and Kuntal Ghosh's complaints. 3. 22.08.2023 INSTANCE NO.3 i. The Opposite Party had conducted search at the office of Leaps & Bounds Pvt. Ltd., wherein the Petitioner is one of the directors. ED has maliciously recorded in the Panchnama dated 22.08.2023, that the search and seizure operation was concluded at 00:15 hrs on 22.08.2023. ii. In fact, the raid ended at 05:55 hrs on 22.08.2023, which shows the Opposite Party had illegally camped itself at the said office for over additional six hours unauthorizedly. The employees of Leaps & Bounds Pvt Ltd were wrongfully restrained from leaving the office and going home for the said six hours. 4. 22.08.2023 INSTANCE NO.4 i. The raiding officers of the Opposite Party deliberately downloaded foreign files and clandestinely altered data of one of the computers of Leaps & Bounds Pvt. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii. However, when an employee of Leaps & Bounds Pvt. Ltd. discovered the said illegal downloads in the computer it immediately lodged a criminal complaint before the Police. iii. Thereafter, the Opposite Party deemed it fit to send an email dated 26.08.2023 justifying its illegal acts and stated that: "That, while the search operation was about to conclude, one team member of the search team had checked the status of hostel accommodation of his 18-year old daughter on the website of Indian Institute of Engineering, Science and Technology (IEST), Shibpur, Howrah on the office computer, installed at the Office premises of Ms. Leaps & Bounds Private Limited in the presence of staff of the company. The said office computer has not been seized by the Opposite Party. Hence, there can be no allegations of foul play" In this regard, it is stated that the contents of the opposite party's letter are false, make belief and a desperate attempt at salvaging its illegal acts. The whole premises and the computer devices were under the full control of the opposite party and its officials. This creates doubts about the real intention behind such downloads. Furthermore, the opposite party ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner or even the case diary, but while the instant criminal revisional application is sub-judice before this Hon'ble Court, the Opposite Party has served the petitioner with a fresh Summons dated 10.09.2023 under Section 50 (2) and (3) of the PMLA. ii. As per the said Summons, the petitioner has been directed to appear before the Opposite Party on 13.09.2023 to give evidence. iii. It is apposite to mention that the petitioner has not only challenged the entire investigation, but also the previous Summons issued to him by the opposite party under Section 50 (2) and (3) of PMLA. iv. While the instant case was being argued, specific submissions have been made on behalf of the Opposite Party that the petitioner cannot challenge the previously issued Summons since they have become infructuous due to elapse of time. v. However, while trying to bypass the petitioner's challenge in the courtroom, the Opposite Party's issuance of fresh Summons is bad in law. vi. While this Hon'ble Court is yet to determine the fate of not only the entire investigation qua the petitioner and also the legality of the previously Summons, the opposite party has attempted to overreach th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and introduced in the computer system. To that extent a general diary entry was lodged, the hard disk was seized by the Cyber Cell of Kolkata Police and the same were sent to CFSL, Kolkata. The E.D. took a plea that the same was accidental as one of its Officers were searching for hostel accommodation for his child and inadvertently the said files may have been downloaded. On the other hand the petitioner's took the plea of malice as subsequently some other Central Agency could have conducted search and considered the same to be a part of the 'Teachers Recruitment Scam' leading to further harassment as the list(s) only consisted names of students in the downloaded files. However, after CFSL, Kolkata gave its opinion the Investigating Officer gave an undertaking that these materials will not be used in any investigation. The approach of the E.D. Officers were casual but the Court had to intervene to stop canvassing and stretch the issue as the core subject relating to the present application under Section 482 of Cr.P.C. was being deviated towards the end of the hearing. Now, so far as the mainstream argument is concerned the spirit of petitioner's argument is the apprehension ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ited." In view of the aforesaid order dated 14.09.2023 passed in WPA 7907 of 2019 with WPA 9979 of 2022 there has been complete change of circumstance from the stage when the petitioner approached this Court when the agony was the summon issued by the E.D. on 08.06.2023. The E.D. in this case before this Court has relied upon only the 4th Supplementary Complaint. As such, except the statement of Sujay Krishna Bhadra (an accused who is in custody) no materials were produced by E.D. before this Court to relate the petitioner with the ECIR under challenge. Having regard to the same I direct that no coercive measures would be taken against the petitioner by the E.D. without adhering to Section 19 of the PMLA, 2002 as explained in paragraph 39 of the judgment of the Hon'ble Supreme Court in V. Senthil Balaji -Vs. - State Represented by Deputy Director & Ors. reported in 2023 SCC OnLine SC 934, for the purposes of convenience which is set out as follows: "39. To effect an arrest, an officer authorised has to assess and evaluate the materials in his possession. Through such materials, he is expected to form a reason to believe that a person has been guilty of an offence punishable und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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