Jharkhand High Court
Amit Kumar Agarwal vs Directorate Of Enforcement on 30 November, 2022
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1 W.P. (Cr.) No. 517 of 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (Cr.) No. 517 of 2022
Amit Kumar Agarwal, aged about 52 years, s/o Shri Vijay Kumar
Agarwal, r/o HB-165, Salt Lake, Sector-3, P.O. Vidhan Nagar, P.S.
Vidhan Nagar South, Dist. 24 Pargannas North, Kolkata, West Bengal
... Petitioner
-Versus-
1. Directorate of Enforcement, Ranchi Zonal Office, Plot No.1502/B,
Airport Road, Hinoo, P.O. & P.S. Hinoo, Dist. Ranchi, Jharkhand-
834002
2. Director, Central Bureau of Investigation ... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Arvind K. Nigam, Sr. Advocate
Mr. Sahbaj Akhtar, Advocate
For the Respondent-ED : Mr. Amit Kumar Das, Advocate
Mr. Shivam Kumar Sahay, Advocate
Mr. Sahay Gaurav Piyush, Advocate
Mr. Rishabh Dubey, Advocate
For the Respondent-CBI : Ms. Chandana Kumari, A.C. to A.S.G.I.
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03/30.11.2022. This matter is listed at Serial No.65 of today's daily cause-list. At 10:30 a.m., Mr. Arvind K. Nigam, learned senior counsel appearing for the petitioner has mentioned this matter and on his mentioning, this matter has been taken up as a first case, out of turn.
2. From the record, it appears that this matter was filed on 19.10.2022. On 20.10.2022, Mr. Pandey Neeraj Rai, learned Advocate had mentioned this case before the Bench, which was allowed and it was directed to be posted on the next date i.e. 21.10.2022 and the matter was listed on that day at 02:15 p.m. under Fresh Filing as Fresh Filing matters were being listed at 02:15 p.m. at that time. On 21.10.2022, Mr. Kishroe Dutta, learned senior Advocate from Kolkata along with Mr. Pandey Neeraj Rai had appeared before this Court at 10:30 a.m. and requested to take up the matter. As the matters listed at 02:15 p.m. were not being allowed to be argued at 10:30 a.m., even the mention prayer was not accepted and there 2 W.P. (Cr.) No. 517 of 2022 after from 22.10.2022, there were Deepawali vacation and as per the practice, left over matters are being listed on the same day in the next week and therefore the matter was listed on 04.11.2022. On that day, Mr. Raju Ramchandran, learned senior counsel has argued the case on behalf of the petitioner and after seeing the argument of Mr. Raju Ramchandran, the Court has called upon the respondent-Directorate of Enforcement to file counter affidavit and posted the matter for today i.e. 30.11.2022 with consent of Mr. Raju Ramchandran, who appeared on that day.
3. Today, the Court has heard at length Mr. Arvind K. Nigam, learned senior counsel appearing for the petitioner and Mr. Amit Kumar Das, learned counsel appearing for the respondent-Directorate of Enforcement.
4. Thus from the very beginning, the Court has acceded the prayer of the petitioner.
5. The petitioner has filed this petition for quashing the ECIR Case No.5 of 2022 (in ECIR-RNZO/11/2022) registered by the Directorate of Enforcement, Ranchi Zonal Office, Ranchi under Section 120B, 384 of the Indian Penal Code and under Section 7A of the Prevention of Corruption Act, 1988 including all subsequent proceedings thereto, pending in the court of the learned Special Judge, Ranchi so far as the petitioner is concerned. The second prayer is made to hold the petitioner's arrest on 07.10.2022 and his continued detention by the Enforcement Directorate in ECIR Case No.5 of 2022 in ECIR-RNZO/11/2022 as wrongful, without jurisdiction and illegal. The third prayer is made for constitution of a Special Investigation Team headed by a retired Judge of the Hon'ble Supreme Court or this Court to investigate the registration of ECIR Case No.5 of 2022 in ECIR- RNZO/11/2022 by the Enforcement Directorate, Ranchi Zonal Office on the 3 W.P. (Cr.) No. 517 of 2022 ground that attempt is being made to divert the investigation and save the accused in FIR No.222 of 2022 by the Enforcement Directorate as the involvement of senior ED officers has come to light.
6. Mr. Nigam, learned senior counsel appearing for the petitioner at the outset draws attention of the Court to the complaint made by the petitioner on 31.07.2022 before the Officer In-Charge, Hare Street Police Station, Kolkata and submits that pursuant to this complaint, Hare Street P.S. Case No.222 of 2022 dated 31.07.2022 was registered by that police station at Kolkata. He submits that this petitioner is not an accused in Hare Street P.S. Case No.222 of 2022, however the Directorate of Enforcement without any rhyme, reason and jurisdiction, has registered ECIR-RNZO/11/2022, so far as this petitioner is concerned. He refers that document and submits that scheduled offence is disclosed therein with regard to Section 120B, 384 of the Indian Penal Code and Section 7A of the Prevention of Corruption Act and by way of referring column of accused, he submits that this petitioner is not shown as accused. According to him, it is the source of information of the Directorate of Enforcement and this petitioner is a whistle blower, who has been made accused by the Directorate of Enforcement without jurisdiction. He also draws attention of the Court to the contents of the said ECIR case and submits that this petitioner, namely, Amit Kumar Agarwal was complainant of Hare Street P.S. Case No.222 of 2022. He further submits that when predicate offence is not against the petitioner, the registration of the said ECIR case against the petitioner is without jurisdiction. He further elaborates his argument by way of submitting and inviting attention of the Court to the judgment passed by the Hon'ble Supreme Court in Vijay Madanlal Choudhary and others v. Union of India and others; 4 W.P. (Cr.) No. 517 of 2022 [2022 SCC OnLine SC 929] and he refers paragraphs 69, 281, 282, 283, 467 (v)(d) of the said judgment, which are quoted herein below:
"69.Mr. Mahesh Jethmalani, learned senior counsel was next in line to advance submissions on behalf of the private parties. He submitted that Section 44(1)(a) of the PMLA is unconstitutional and violative of Articles 14 and 21 of the Constitution. He contends that there is no nexus of the said Section with the object of the PMLA. This section does not contemplate a joint trial of the offence under Section 3 and the scheduled offence. Further, he interprets Section 44(1)(a) to mean that the Special Court can only try the scheduled offence, but not together; it has to be separately tried as per the provisions of the Cr.P.C. It is also said that the rationale behind this change is difficult to fathom. On the other hand, it is pointed out that the accused's right of being tried as per the Cr.P.C., for scheduled offence is being violated, at least in respect of 37 out of 58 scheduled offences of the IPC noted in the Schedule to the 2002 Act, are triable exclusively by a Magistrate of the First Class or any Magistrate. In support of this argument, reliance has been placed on A.R. Antulay v. R.S. Nayak. It is submitted that the present interpretation of this section leads to the violation of the right to be tried by a Magistrate First Class, the right of a first appeal to Sessions Court under Section 374(3) and the right of revision to the High Court under Section 401 of the Cr.P.C. from the appellate judgment of the Sessions Court. This leads to a rather oppressive interpretation where an accused who is not charged under the PMLA offence but only under the predicate offence is also tried by the Special Court. This is also hit by the fact that several of the scheduled offences within the PMLA are themselves part of special statutes which prescribe that they shall be tried by the Special Court established under those special statutes exclusively. For example, the PC Act, the NDPS Act and the National Investigation Agency Act, 2008. Thus, in such a case the PMLA Special Court cannot have power to try offences punishable under those Acts. The phrase 'any scheduled offences' as contemplated under Section 44(1)(a) of the PMLA is in a manifest conflict with these three statutes and, hence, liable to be struck down. Learned counsel also submits that the Section is a legal absurdity as to how a Special Court could try a scheduled offence before the commencement of the Act without which commencement of the Special Court has no existence. It is also stated the discretion to choose which issue or scheduled offence to try before the Special Court lies only with the authority authorised to file a complaint under the PMLA, which is a discretionary and unfettered arbitrary power.
281. The next question is : whether the offence under Section 3 is a standalone offence? Indeed, it is dependent on the wrongful and illegal gain of property as a result of criminal activity relating to a scheduled offence. Nevertheless, it is concerning the process or activity connected with such property, which constitutes offence of money-laundering. The property must qualify the definition of "proceeds of crime" under Section 2(1)(u) of the 2002 Act. As observed earlier, all or whole of the crime property linked to scheduled offence need not be regarded as proceeds of crime, but all properties qualifying the definition of "proceeds of crime" under 5 W.P. (Cr.) No. 517 of 2022 Section 2(1)(u) will necessarily be crime properties. Indeed, in the event of acquittal of the person concerned or being absolved from allegation of criminal activity relating to scheduled offence, and if it is established in the court of law that the crime property in the concerned case has been rightfully owned and possessed by him, such a property by no stretch of imagination can be termed as crime property and ex-consequenti proceeds of crime within the meaning of Section 2(1)(u) as it stands today. On the other hand, in the trial in connection with the scheduled offence, the Court would be obliged to direct return of such property as belonging to him. It would be then paradoxical to still regard such property as proceeds of crime despite such adjudication by a Court of competent jurisdiction. It is well within the jurisdiction of the concerned Court trying the scheduled offence to pronounce on that matter.
282. Be it noted that the authority of the Authorised Officer under the 2002 Act to prosecute any person for offence of money- laundering gets triggered only if there exists proceeds of crime within the meaning of Section 2(1)(u) of the 2002 Act and further it is involved in any process or activity. Not even in a case of existence of undisclosed income and irrespective of its volume, the definition of "proceeds of crime" under Section 2(1)(u) will get attracted, unless the property has been derived or obtained as a result of criminal activity relating to a scheduled offence. It is possible that in a given case after the discovery of huge volume of undisclosed property, the authorised officer may be advised to send information to the jurisdictional police (under Section 66(2) of the 2002 Act) for registration of a scheduled offence contemporaneously, including for further investigation in a pending case, if any. On receipt of such information, the jurisdictional police would be obliged to register the case by way of FIR if it is a cognizable offence or as a non- cognizable offence (NC case), as the case may be. If the offence so reported is a scheduled offence, only in that eventuality, the property recovered by the authorised officer would partake the colour of proceeds of crime under Section 2(1)(u) of the 2002 Act, enabling him to take further action under the Act in that regard.
283. Even though, the 2002 Act is a complete Code in itself, it is only in respect of matters connected with offence of money- laundering, and for that, existence of proceeds of crime within the meaning of Section 2(1)(u) of the Act is quintessential. Absent existence of proceeds of crime, as aforesaid, the authorities under the 2002 Act cannot step in or initiate any prosecution. 467(v)(d) The offence under Section 3 of the 2002 Act is dependent on illegal gain of property as a result of criminal activity 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."6 W.P. (Cr.) No. 517 of 2022
7. By way of referring this judgment, Mr. Nigam, learned senior counsel appearing for the petitioner submits that registration of the said ECIR case is condition precedent and commission of scheduled offence and the petitioner is not coming within the purview of that and in that view of the matter, the entire proceeding is without jurisdiction.
8. Learned senior counsel appearing for the petitioner also submits that identical was the issue before the Hon'ble Supreme Court in Parvathi Kollur & anr. v. State by Directorate of Enforcement in Criminal Appeal No.1254 of 2022 and considering the judgment passed in Vijay Madanlal Choudhary (supra), the discharge order reversed by the High Court has been quashed and discharge order of the learned trial court was affirmed by the Hon'ble Supreme Court. He submits that once the case is registered under the jurisdictional police station and any person is made accused in that case, only thereafter the Directorate of Enforcement can register the ECIR case for investigation. He further submits that the Directorate of Enforcement has got no jurisdiction and authority to investigate the matter and arrest the petitioner. He also draws attention of the Court to Sub-section (2) of Section 8 of the Prevention of Corruption Act, 1988 and submits that a person, who has complained before the police, cannot be proceeded in view of that Section. He further elaborates his argument by way of submitting that entire case is based on a PIL which was being adjudicated by the Division Bench of this Court and maintainability issue of PIL was challenged before the Hon'ble Supreme Court and the Hon'ble Supreme Court has set aside the order passed by the Division Bench and held that in absence of any complaint or FIR lodged by the petitioner against competent authority, suo motu petition is not 7 W.P. (Cr.) No. 517 of 2022 maintainable and set aside the order passed by the Division Bench. He also submits that once the Division Bench order has been set aside by the Hon'ble Supreme Court, the Directorate of Enforcement has got no power to review the order of the Hon'ble Supreme Court. According to him, after the order of the Hon'ble Supreme Court mention of the PIL in the complaint amounts to review of judicial order passed by the constitutional Court. To buttress this argument, he relied in P. Sambamurthy and others v. State of Andhra Pradesh and another; [(1987) 1 SCC 362] and on the same issue, he also relied in Union of India v. K.M. Shankarappa; [(2001) 1 SCC 582] and Amrik Singh Lyallpuri v. Union of India and others; [(2011) 6 SCC 535 . By way of referring these judgments, Mr. Nigam, learned senior counsel appearing for the petitioner submits that registering of the said ECIR case will amount to abuse of judicial order of the constitutional Court, which is in complete violation of rule of law. He further submits that once the entire investigation is void and without jurisdiction and on the basis of which the petitioner has been taken into custody and continue in detention, is illegal. In that view of the matter, the petitioner is required to be released on interim bail under Article 226 of the Constitution of India and for that separate I.A. being I.A. No.10240 of 2022 has been filed. These are the submissions of the learned senior counsel appearing for the petitioner on the point of prayer nos.(i) and (ii) of the petition.
9. So far as prayer no.(iii) is concerned, Mr. Nigam, learned senior counsel appearing for the petitioner submits that it is upon the conscience of the Court and if the Court comes to the conclusion that it is required to be handed over to the Special Investigation Team headed by retired Judge 8 W.P. (Cr.) No. 517 of 2022 of Hon'ble Supreme Court or the High Court, the Court may pass that order.
10. On these grounds, Mr. Nigam, learned senior counsel appearing for the petitioner submits that the entire criminal proceeding, so far as the petitioner is concerned, is bad in law and the entire criminal proceeding is required to be quashed and the petitioner may be enlarged on interim bail.
11. Per contra, Mr. Amit Kumar Das, learned counsel appearing for the respondent-Directorate of Enforcement submits that challenge in this petition is to quash the said ECIR case which is an internal document of the Directorate of Enforcement which might have been communicated to the Court and that has got no consequence. So far as the prayer for quashing is concerned, that is misconceived one and the same is internal document, that has been held by the Hon'ble Supreme Court in Vijay Madanlal Choudhary (supra) in paragraph 461 of that judgment. He further submits that the complaint has already been filed and the learned court has already taken the cognizance. According to him, the petitioner has although brought those documents by way of filing the said I.A., but those documents are not under challenge. He draws attention of the Court to the internal page 13 of the complaint annexed with the said I.A. and submits that only mens rea behind this was to check and hamper the ongoing PIL for his gain and for this, he withdrew Rs.60 Lakhs from his bank account out of which Rs.50 Lakhs was used to trap the accused. The said amount of Rs.60 Lakhs was withdrawn from IDFC First Bank Account, which is held in the name of M/s Rajesh Auto Merchandise Pvt. Ltd. and an amount of Rs.56 Lakhs have been transferred into this account from one of the account of the company of the accused person namely Amit Kumar Agarwal registered with ROC Jharkhand. The said amount was in fact proceeds of crime which was 9 W.P. (Cr.) No. 517 of 2022 generated by Amit Kumar Agarwal and later acquired by Rajeev Kumar. By way of inviting attention of the Court to internal page 38 of the complaint, he submits that it has come in the investigation that the name of Amit Kumar Agarwal cropped in the investigation of illegal mining case under reference No.ECIR04/2022 (in ECIR RNZO/03/2022 dated 08.03.2022) having POC of proceeds of crime of more than Rs.1000 Crore. The statement of Ravi Kumar Kejriwal, who was earlier treasurer of JMM, was recorded under Section 50 of Prevention of Money Laundering Act, in which, he stated that while working as treasurer, JMM, one day he was present in the office of the Chief Minister, when the CM directed Pankaj Mishra to directly hand over the funds coming from Santhal Parganas from stone mining and sand mining business to Prem Prakash. It was also discussed that Prem Prakash will hand over the funds to Amit Kumar Agarwal. He also stated that Prem Prakash is very close to Hemant Soren and Amit Kumar Agarwal. He also stated that Smt. Pooja Singhal was given the additional charge of Mining Secretary, Jharkhand due to her proximity with Amit Kumar Agarwal. He further stated that Prem Prakash is very close to Hemant Soren and Pintu, and has developed good relation with them in last couple of years. Earlier he used to supply eggs in Mid-Day meal program but in last couple of years, he has become a power broker in Jharkhand and a fund manager for bureaucrats and politicians. He further submits that this petitioner was produced before the learned court and he was remanded to judicial custody on 08.10.2022 and on that day, judicial order has been passed by the learned court in which the petitioner has not complained anything. Moreover, the said order of remand is not under challenge. He also submits that I.A. No.10240 of 2022 filed on behalf of the petitioner for 10 W.P. (Cr.) No. 517 of 2022 interim bail is misconceived one. There are statutory provisions of release on bail and this aspect of the matter has been considered by the Hon'ble Supreme Court in Saurabh Kumar through his father v. Jailor, Koneila Jail and another; [(2014) 13 SCC 436] .
12. Paragraphs 20, 21, 22 and 23 of the said judgment are quoted herein below:
"20. Subsequent orders passed in the case show that the accused has been produced before the Magistrate concerned from time to time and remanded to custody, awaiting service of summons upon the remaining accused persons who are, according to the affidavits filed by the respondents, absconding.
21.Two things are evident from the record:
Firstly, the accused is involved in a criminal case for which he has been arrested and produced before the Magistrate and remanded to judicial custody;
Secondly, the petitioner does not appear to have made any application for grant of bail, even when the remaining accused persons alleged to be absconding and remain to be served. The net result is that the petitioner continues to languish in jail.
22. The only question with which we are concerned within the above backdrop is whether the petitioner can be said to be in the unlawful custody. Our answer to that question is in the negative. The record which we have carefully perused shows that the petitioner is an accused facing prosecution for the offences, cognizance whereof has already been taken by the competent court. He is presently in custody pursuant to the order of remand made by the said Court. A writ of habeas corpus is, in the circumstances, totally misplaced.
Having said that, we are of the view that the petitioner could and indeed ought to have filed an application for grant of bail which prayer could be allowed by the court below, having regard to the nature of the offences allegedly committed by the petitioner and the attendant circumstances. The petitioner has for whatever reasons chosen not to do so. He, instead, has been advised to file the present petition in this Court which is no substitute for his enlargement from custody.
23. We are also of the view that the Magistrate has acted rather mechanically in remanding the accused petitioner herein to judicial custody without so much as making sure that the remaining accused persons are quickly served with the process of the court and/or produced before the court for an early disposal of the matter. The Magistrate appears to have taken the process in a cavalier fashion that betrays his insensitivity towards denial of personal liberty of a citizen who is languishing in jail because the police have taken no action for the apprehension and production of the other accused persons. This kind of apathy is regrettable to say the least. We also find it difficult to accept the contention that the other accused persons who all belong to one family have absconded. The nature of the offences alleged to have been committed is also not so serious 11 W.P. (Cr.) No. 517 of 2022 as to probabilise the version of the respondent that the accused have indeed absconded. Suffice it to say that the petitioner is free to make an application for the grant of bail to the court concerned who shall consider the same no sooner the same is filed and pass appropriate orders thereon expeditiously."
13. Mr. Das, learned counsel for the respondent-Directorate of Enforcement further submits that once the order is not under challenge, the prayer to release on interim bail is misconceived one and to buttress this argument, he relied in State of Maharashtra and others v. Tasneem Rizwan Siddiquee; [(2018) 9 SCC 745].
14. Paragraph 12 of the said judgment is quoted herein below:
"12. Suffice it to observe that since no writ of habeas corpus could be issued in the fact situation of the present case, the High Court should have been loath to enter upon the merits of the arrest in the absence of any challenge to the judicial order passed by the Magistrate granting police custody till 23-3-2018 and more particularly for reasons mentioned in that order of the Magistrate. In a somewhat similar situation, this Court in State v. N.M.T. Joy Immaculate [State v. N.M.T. Joy Immaculate, (2004) 5 SCC 729 :
2004 SCC (Cri) 1722] deprecated passing of disparaging and strong remarks by the High Court [N.M.T. Joy Immaculate v. State, 2002 SCC OnLine Mad 265 : (2002) 1 MWN (Cri) 237] against the investigating officer and about the investigation done by them. Accordingly, we have no hesitation in expunging the observations made in paras 4 to 6 of the impugned judgment against the police officials concerned in the facts of the present case."
15. Relying on these two judgments, Mr. Das submits that alternative remedy is there and the said I.A. filed for release on interim bail is misconceived one and at this stage, this Court may not entertain the prayer to release of the petitioner on interim bail.
16. By way of inviting attention of the Court to internal page 10 of the complaint, Mr. Das submits that Rajeev Kumar also stated on 22.08.2022 that after his arrest by Kolkata Police, he was repeatedly forced about his acquaintances with the Judges of Jharkhand High Court, Government officials of ED, CBI and IB. The police were continuously repeating and 12 W.P. (Cr.) No. 517 of 2022 pressurizing him to say that he extorts money for Government officials and the judiciary. He further submits that it appears that Hare Street P.S. Case No.222/2022 was registered in the police station, which was not within the jurisdiction of the Officer In-charge or resident or office of the petitioner and the petitioner has disclosed that he personally knows Shri Sumit Chakraborty, the In-charge of Hare Street Police Station and the petitioner has also further disclosed that In-charge of Hare Street Police Station did not inform him regarding the jurisdiction for the FIR nor he asked him about it. By way of referring para 6.4 of the complaint, Mr. Das submits that it has come there that how this petitioner has trapped Rajeev Kumar using Sonu Agarwal, who is an independent businessman at Ranchi. The statement of Sonu Agarwl has come in para 6.5 of the complaint in which he has disclosed that how this petitioner-Amit Kumar Agarwal has allured him to call Rajeev Kumar for managing the PIL as he was apprehending problem in that PIL. In para 6.8 of the complaint, it has come that Shri Shiv Shankar Sharma, who is the petitioner in PIL has stated that prior to arrest of Mr. Rajeev Kumar, this petitioner tried to offer him bribe money to settle the PIL matter, however he was not ready for negotiation and settlement. He further submits that in para 7.7 of the complaint, the Whatsapp chat of Sonu Agarwal has come in which he has stated in so many words that Rajeev Kumar has been wrongly trapped by keeping him in dark by this petitioner. He further submits that the complaint was made on 31.07.2022 before the Officer In-Charge in which it has been disclosed that FIR was registered, however same was not verified. He further submits that FIR was registered as Hare Street P.S. Case No.222 of 2022 and the occurrence is shown as dated 13.07.2022 to 31.07.2022. However, at the very first 13 W.P. (Cr.) No. 517 of 2022 meeting on 13.07.2022, the complaint was not filed before the police by the petitioner which shows that intention of this petitioner was to manage the PIL. He draws attention of the Court to Section 3 of the Prevention of Money Laundering Act and submits that whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime and projecting it as untainted property shall be guilty of offence of money laundering. By way of inviting attention of the Court to internal pages 12 and 13 of the complaint, he submits that it has come there that this petitioner has stated that he will inform the police so that he can trap when Mr. Rajeev Kumar comes to collect the money. He submits that in paragraph 467(v)(d) of the judgment passed by the Hon'ble Supreme Court in Vijay Madanlal Choudhary (supra) it has been held that unless the person is discharged or proceeding is quashed, the proceeding cannot be terminated. He further submits that the petitioner is the giver of the bribe and in view of the provisions made in the Prevention of Corruption Act as well as Prevention of Money Laundering Act, the bribe giver and taker, both are accused. He submits that recently this aspect of the matter has bee considered by the Hon'ble Supreme Court in Directorate of Enforcement v. Padmanabhan Kishore; (2022 SCC OnLine SC 1490) .
17. Paragraph 16 of the said judgment is quoted herein below:
"16. It is true that so long as the amount is in the hands of a bribe giver, and till it does not get impressed with the requisite intent and is actually handed over as a bribe, it would definitely be untainted money. If the money is handed over without such intent, it would be a mere entrustment. If it is thereafter appropriated by the public servant, the offence would be of misappropriation or species thereof but certainly not of bribe. The crucial part therefore is the requisite intent to hand over the amount as bribe and normally such intent must necessarily be antecedent or prior to the moment the amount 14 W.P. (Cr.) No. 517 of 2022 is handed over. Thus, the requisite intent would always be at the core before the amount is handed over. Such intent having been entertained well before the amount is actually handed over, the person concerned would certainly be involved in the process or activity connected with "proceeds of crime" including inter alia, the aspects of possession or acquisition thereof. By handing over money with the intent of giving bribe, such person will be assisting or will knowingly be a party to an activity connected with the proceeds of crime. Without such active participation on part of the person concerned, the money would not assume the character of being proceeds of crime. The relevant expressions from Section 3 of the PML Act are thus wide enough to cover the role played by such person."
18. Mr. Das, learned counsel for the respondent-Directorate of Enforcement further submits that so far as third prayer is concerned, it is for the Court to decide as to whether that prayer is required to be entertained by this Court or not .
19. On these grounds, Mr. Das submits that the entire writ petition is misconceived one and this Court may dismiss the same.
20. By way of reply, Mr. Nigam, learned senior counsel appearing for the petitioner again draws attention of the Court to the prayer portion of the writ petition and submits that the case has been instituted prior to the said ECIR case and the prayer for quashing the same has been made in the writ petition and that is why the objection made by the Directorate of Enforcement is not sustainable. He again draws attention of the Court to the complaint and submits that brief summary is disclosed at paragraph 2 and mention of FIR is there, however the petitioner is not accused in the FIR. The entire action on the part of the respondent-Directorate of Enforcement is without jurisdiction and void. He again draws attention of the Court to paragraph 467(v)(d) of the judgment passed by the Hon'ble Supreme Court in Vijay Madanlal Choudhary (supra) and submits that in view of the observation made therein, the arguments of Directorate of Enforcement is 15 W.P. (Cr.) No. 517 of 2022 not sustainable. He took the Court to para 7.19 of the complaint and submits that it has been disclosed that the investigation is going on. According to him, which investigation is going on, it is not there and it is the figment of imagination of ED. He also repeats his argument by way of submitting that the case is instituted without jurisdiction and there is no proceeds of crime. Thus, the entire proceeding is void and continue detention of the petitioner and orders can be said to be illegal. The complaint petition is brought on record by way of filing the said I.A. and in that view of the matter, the Court can peruse the same and the prayer for release the petitioner on interim bail, as prayed may be granted. He submits that different mens rea of FIR No.222 of 2022 is there and there is no scheduled offence. He submits that so far as chat of Sonu Agarwal is concerned, that is one sided, where is the chat of the petitioner, is not disclosed. He distinguished the judgment relied by Mr. Das in Padmanabhan Kishore (supra). He submits that there is no offence of bribe and in that view of the matter, the entire proceeding, so far as the petitioner is concerned, is illegal.
21. In light of the above submissions of the learned counsel for the parties, the Court has gone through the materials on the record and finds that admittedly only the ECIR is under challenge in this petition, which is internal document of the ED and that might have been communicated to the Court and this aspect of the matter has been considered by the Hon'ble Supreme Court about internal document of the ECIR in paragraph 461 of Vijay Madanlal Choudhary (supra). Paragraph 461 of the said judgment is quoted herein below:
"461. It is true that the ED Manual may be an internal document 16 W.P. (Cr.) No. 517 of 2022 for departmental use and in the nature of set of administrative orders. It is equally true that the accused or for that matter common public may not be entitled to have access to such administrative instructions being highly confidential and dealing with complex issues concerning mode and manner of investigation, for internal guidance of officers of ED. It is also correct to say that there is no such requirement under the 2002 Act or for that matter, that there is nothing like investigation of a crime of money-laundering as per the scheme of 2002 Act. The investigation, however, is to track the property being proceeds of crime and to attach the same for being dealt with under the 2002 Act. Stricto sensu, it is in the nature of an inquiry in respect of civil action of attachment. Nevertheless, since the inquiry in due course ends in identifying the offender who is involved in the process or activity connected with the proceeds of crime and then to prosecute him, it is possible for the department to outline the situations in which that course could be adopted in reference to specific provisions of 2002 Act or the Rules framed thereunder; and in which event, what are the options available to such person before the Authority or the Special Court, as the case may be. Such document may come handy and disseminate information to all concerned. At least the feasibility of placing such document on the official website of ED may be explored."
22. The complaint has been filed and cognizance has been taken. The complaint has been brought on record by the petitioner by way of filing I.A. No.10240 of 2022, wherein, prayer has been made for interim bail. However, the said complaint and order taking cognizance are not under challenge in this petition. The Court has gone minutely to the contents of the complaint and finds that it has come that Rajeev Kumar stated on 22.08.2022 that after his arrest by Kolkata Police, he was repeatedly forced about his acquaintances with the Judges of Jharkhand High Court, Government officials of ED, CBI and IB. The police were continuously repeating and pressurizing him to say that he extorts money for Government officials and the judiciary and pressurizing him to accept that he had extraneous connection with the ED officials. This petitioner has stated that he would report this matter to the police so that Rajeev Kumar comes to collect the money and will be apprehended. Why outside jurisdiction case has been registered, this petitioner has not provided 17 W.P. (Cr.) No. 517 of 2022 satisfactory answer, however he has accepted that he knows a person namely Shri Sumit Chakraborty, who is In-charge of Hare Street Police Station. In para 6.4 of the complaint, it has come that Bishnu Agarwal has stated that on the direction of Sonu Agarwal, he met with Rajeev Kumar in his office and made a call to Sonu Agarwal from his mobile phone. Rajeev Kumar spoke to Sonu Agarwal and it was decided to provide air tickets and other arrangements for Rajeev Kumar for his visit to Kolkata. He arranged air tickets, vehicle etc. for the visit of Rajeev Kumar. In para 6.5 of the complaint, Sonu Agarwal has disclosed that how he has been requested by Amit Kumar Agarwal-petitioner to call Rajeev Kumar as he has apprehended some difficulty in PIL. In para 6.8 of the complaint, the statement of Shiv Shankar Sharma, who was the petitioner in PIL, has come in which he has stated that 20-25 days prior to arrest of Rajeev Kumar, he was also contacted by Amit Kumar Agarwal for settlement, however he has not accepted. The only mens rea behind this was to check and hamper the ongoing PIL which has further come in the investigation. The screen shot of chat of Sonu Agarwal is also mentioned in the complaint. Sonu Agarwal has stated that he was keeping in dark about trap of Rajeev Kumar and he was not knowing about the said trap. In para 7.18 of the complaint, the link of this petitioner with other mining mafia has come. Thus, there are sufficient material, so far as this petitioner is concerned with regard to trapping of Mr. Rajeev Kumar.
23. Looking into Section 3 of Prevention of Money Laundering Act, it is crystal clear that whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime and projecting it as 18 W.P. (Cr.) No. 517 of 2022 untainted property shall be guilty of offence of money laundering. Admittedly, this petitioner has handed over the sum of Rs.50 Lakhs to Mr. Rajeev Kumar. Section 7A of the Prevention of Corruption Act speaks that giver and taker of bribe, both are liable to be prosecuted, which comes under scheduled offence in light of Section 2(1)(u) of the Prevention of Money Laundering Act. Recently, the Hon'ble Supreme Court in paragraph 16 of Padmanabhan Kishore (supra) held that bribe giver will also come within the purview of the Prevention of Money Laundering Act. The judgment relied by Mr. Nigam, learned senior counsel in the case of Parvathi Kollur (supra), that was on different facts. In that case, the accused has left for his heavenly abode and his wife and son were the petitioners where the discharge petition was allowed by the learned court, which was reversed by the High Court and in that scenario, the Hon'ble Supreme Court has affirmed the order of the trial court of discharge. In the case in hand, serious allegation is there against this petitioner, who tried to malign the image of judiciary and high officials of the Government and ED. Thus, that case is not helping the petitioner. Thus, the argument of Mr. Nigam, learned senior counsel appearing for the petitioner with regard to jurisdiction is not accepted by this Court and the same is negated.
24. So far as the judgment of review of judicial order, as relied by Mr. Nigam, learned senior counsel, that is not in dispute. It is well settled that if the Court has passed the order, executive has got no power to review that order. However in the case in hand, the ED has already registered the case prior to quashing of PIL by the Hon'ble Supreme Court. It has been held by the Hon'ble Supreme Court that no FIR or complaint has been filed with the police or any authority agitating the grievances these petitions 19 W.P. (Cr.) No. 517 of 2022 have been filed before the High Court without availing the statutory remedies and considering this aspect of the matter, the Hon'ble Supreme Court has come to the conclusion that the said PIL against constitutional authority should not be taken lightly and PIL was not required to be entertained by the High Court. However, the Hon'ble Supreme Court has not restrained while dismissing the PIL to enquire into criminal proceeding arising out of any complaint or FIR. Thus, it cannot be said that the ED has reviewed the order of the Hon'ble Supreme Court. In that view of the matter, the argument of Mr. Nigam, learned senior counsel for the petitioner with regard to review of judicial order is not accepted and the same is negated.
25. Now coming to the next argument of Mr. Nigam with regard to illegal detention of the petitioner. It can be safely said that if the Court comes to the conclusion that ECIR has not been considered without jurisdiction, it cannot be said that the detention or arrest of the petitioner is illegal moreso when Section 19 provides power of arrest. The petitioner was produced before the learned court and was remanded to judicial custody. The petitioner has not complained anything and remand order is not under challenge and this aspect of the matter has been considered by the Hon'ble Supreme Court in Tasneem Rizwan Siddiquee (supra). It is well settled that when alternative remedy is there, petition for bail under Article 226 of the Constitution of India is not maintainable, as has been held by the Hon'ble Supreme Court in Saurabh Kumar through his father (supra) . The Court is conscious of the fact that liberty of any person cannot be taken away lightly and at least on two occasions, this Court has rise to rescue the petitioners of those cases finding about the liberty was at stake and granted interim 20 W.P. (Cr.) No. 517 of 2022 bail under Article 226 of the Constitution of India in Hemant Goyal and another v. The State of Jharkhand and another; (2021 SCC OnLine Jhar 637) and Baby Chatterjee v. The State of Jharkhand & others; (2022 SCC OnLine Jhar 1348), which has been affirmed by the Hon'ble Supreme Court. Thus, when a case of interference comes under Article 226 of the Constitution of India with regard to liberty of any person, has been brought to record the Court has rise to rescue. If this type of petition where there is serious allegation is being entertained by the constitutional Court, Pandora box will be open and all the accused facing proceeding under PMLA, will file petitions filed under Article 226 of Constitution to avoid the rigour of Section 45 of PMLA. The forum shopping to obtain bail by accused charged under special Act and IPC was recently subject matter before the Hon'ble Supreme Court in State of Maharashtra v. Pankaj Jagshi Gangar; [(2022) 2 SCC 66] . In that case, the High Court has granted interim bail to the accused and the Hon'ble Supreme Court quashed the order of the High Court. The petition filed under Article 226 of the Constitution of India was again the subject matter before the Hon'ble Supreme Court in State of Maharashtra v. Abdul Hamid Haji Mohammad; [1994 Supp (1) SCC 579]. Paragraphs 9 and 10 of the said judgment are quoted herein below:
"9. Mr K.T.S. Tulsi, the learned Additional Solicitor General of India appearing for the State challenges the impugned order mainly on a legal ground, inter alia, contending that when there is specific procedure provided in the special act, namely TADA, that procedure alone must be followed and applied and not otherwise and that while the High Court cannot exercise its power under Section 439 CrPC, it has no justification in releasing the respondent on bail in exercise of its plenary jurisdiction under Articles 226 and 227 of the Constitution. He places reliance on several decisions of this Court, namely, (1) Ramchandra A. Kamat v. Union of India [(1980) 2 SCC 270 : 1980 SCC (Cri) 414] ; (2) Kehar Singh v. State (Delhi Admn. [(1988) 3 SCC 609 : 1988 SCC (Cri) 711] ); (3) State of 21 W.P. (Cr.) No. 517 of 2022 Maharashtra v. Anand Chintaman Dighe [(1990) 1 SCC 397 : 1990 SCC (Cri) 142] ; (4) State of Maharashtra v. Anand Chintaman Dighe [(1991) 3 SCC 209 : 1991 SCC (Cri) 500] and (5) Mool Chand v. State [1991 Supp (2) SCC 101 : 1991 SCC (Cri) 1001] .
10. Incidentally, the learned Additional Solicitor General made his submission on the facts of the case stating that there is ample evidence collected against the respondent which would justify the invocation of the provisions of the TADA."
26. Thus, the prayer of the petitioner with regard to release on interim bail under Article 226 of the Constitution of India is not made out and that prayer is rejected.
27. Now coming to the third prayer of the petitioner. Whether the accused would have any say in selecting the method of inquiry or the investigating agency. In Romila Thapar v. Union of India; [(2018) 10 SCC 753] , the Supreme Court taking a review of the earlier precedents reiterated the principle that the accused does not have a say in the matter of appointment of the investigating agency while referring to the decisions in Narmada Bai v. State of Gujarat and others; [(2011) 5 SCC 79], Sanjiv Rajendra Bhat v. Union of India; [(2016) 1 SCC 1] and Divine Retreat Centre v. State of Kerala; [(2008) 3 SCC 542] .
28. It is well settled that the High Court under Article 226 of the Constitution and the Hon'ble Supreme Court under Article 32 of the Constitution can direct the CBI to investigate into any specific case or to conduct an inquiry against a person. It can do so only when there is sufficient material before the Court to come to a prima facie conclusion that there is a need for such an inquiry. There is no doubt that such inquiry cannot be ordered as a matter of routine or merely because a party makes an allegation and if after considering the materials on record the Court concludes that such materials disclose a prima facie case calling for 22 W.P. (Cr.) No. 517 of 2022 investigation by the CBI, the Court can pass necessary order. Reference may be made to the celebrated decisions of the Hon'ble Supreme Court in State of West Bengal and Ors. v. Committee for Protection of Democratic Rights and Ors.; [(2010) 3 SCC 571] and Subrata Chattoraj v. Union of India and Ors.; [(2014) 8 SCC 768] .
29. In the case in hand, this petitioner has tried to scandalize the judiciary, ED officials and Government officials particularly considering that Hare Street P.S. Case was registered with the police station, which was not within the jurisdiction of resident or office of the petitioner, which suggests that there is larger conspiracy to malign the image of judiciary, ED and other officials including the Court staff, which is a serious matter and this all has come in the investigation of the ED. Such type of allegation brought to the knowledge of the Court cannot be allowed to go unattended. The public at large expected a fair, honest and impartial inquiry and investigation. In that view of the matter and in the interest of justice, the Court comes to the conclusion that it would be sufficiently served if the Director, CBI is directed to initiate a preliminary inquiry into the conduct of this petitioner and it is, therefore, being order by this Court accordingly. Such preliminary inquiry shall be conducted in accordance with law and concluded as early as possible within 15 days from receipt of a copy of this order. The Court hopes and trusts that the officer(s) appointed for the purpose of conducting preliminary inquiry shall receive due cooperation from individuals/agencies who are approached by the CBI. Once the preliminary inquiry report is submitted, the Director, CBI shall be at liberty to choose further course of action, in accordance with law. If the Director, CBI comes to the conclusion that there is not reason to proceed 23 W.P. (Cr.) No. 517 of 2022 further, he may pass appropriate order.
30. In view of the above facts, reasons and analysis, the prayer nos. (i) and (ii) of the petitioner are rejected, as discussed above. The prayer no.(iii) is allowed in above terms.
31. Learned counsel Mr. Sahbaj Akhtar, who is Advocate-on-Record will array the CBI as party-respondent no.2 in the petition and he will serve two copies of the petition and I.A. upon the learned counsel appearing for the CBI by tomorrow.
32. Mr. Amit Kumar Das, learned counsel for the respondent-Directorate of Enforcement will serve copy of counter affidavit upon the learned counsel appearing for the CBI by tomorrow.
33. Ms. Chandana Kumari, learned counsel appearing for the CBI is requested to communicate this order to the Director, CBI forthwith for the needful.
34. Accordingly, this petition stands disposed of.
35. Consequently, I.A. No.10240 of 2022 also stands disposed of.
(Sanjay Kumar Dwivedi, J.) Ajay/