Directorate Of Enforcement vs Menka Gambhir And Another
2022 Latest Caselaw 8672 Cal

                    IN THE HIGH COURT AT CALCUTTA
                      CIVIL APPELLATE JURISDICTION
                               (Appellate Side)

                                                  MAT 1762 of 2022
                                                      With
                                                   CAN 1 of 2022
                                                  Reserved on: 01.12.2022
                                                  Pronounced on: 23.12.2022


Directorate of Enforcement, Ministry of Finance
                                                                ...Appellant
                                    -Vs-
Menka Gambhir and Another
                                                               ...Respondents

Present:-

Mr. Ashok Kumar Chakraborty, ld. ASG, Mr. Phiroze Edulji, Ms. Anamika Pandey, Advocates ... for the appellants

Mr. Jishnu Saha, Sr. Advocate Mr. Ayan Bhattacharjee, Mr. Soumen Mohanty, Mr. Piyush Kumar Ray, Mr. Kush Agarwal, Advocates

Mr. Billwadal Bhattacharyya, ld. DSGI Mr. Rajendra Banerjee, Advocate ... for the Union of India

Coram: THE HON'BLE JUSTICE PRAKASH SHRIVASTAVA, CHIEF JUSTICE THE HON'BLE JUSTICE ANANYA BANDYOPADHYAY JUDGE

Prakash Shrivastava, CJ:

1. This appeal is directed against the interlocutory orders of the

learned Single Judge dated 30th of August, 2022 and 6th of September,

2022 passed in WPA 19748 of 2022. By the subsequent order dated

06.09.2022, certain typographical errors in the earlier order have been

corrected.

2 MAT 1762 of 2022

2. The respondent No. 1 herein (writ petitioner) had approached

the learned Single Judge by filing WPA 19748 of 2022, challenging the

summons dated 26th of July, 2022 and 12th of August, 2022 with the plea

that the writ petitioner was a citizen of India and resident of Kolkata and

that the FIR No. RC0102020A0022 was registered by the CBI (ACB)

Kolkata on 27.11.2020 under Sections 120B and 409 of the IPC for the

alleged illegal excavation, theft and transportation of coal and ECL

Coalfields in West Bengal. The writ petitioner has not been named in

the said FIR. Thereafter on 28.11.2020 appellant had registered the

ECIR for the alleged commission of offence punishable under Sections

3 and 4 of Prevention of Money Laundering Act, 2002 (for short,

'PMLA'). The writ petitioner was issued the summons under Section 50

(2) and (3) of PMLA dated 19th of July, 2022 by Assistant Director,

Directorate of Enforcement, New Delhi for appearance in his office on

26.07.2022 at 10:30 A.M. Subsequently, another summon of similar

nature was issued by the same Assistant Director on 12th of August,

2022 for appearance in his office on 5th of September, 2022. These

summons were subject matter of challenge in the writ petition.

3. Learned Single Judge while passing the impugned interlocutory

order has noted that the relief claimed in the writ petition is in respect of

the summons under Sections 50(2) and (3) of PMLA. Learned Single

Judge has noted that the only issue is whether the writ petitioner should

be summoned in Delhi or in Kolkata, and considering the issue, learned

Single Judge has also found that the writ petitioner has not been named

as an accused in the proceedings. By way of interim direction the

appellant has been directed to question the petitioner at its zonal office 3 MAT 1762 of 2022

at Kolkata. The appellant has been further directed not to take any

coercive step in the meantime.

4. Submission of learned Counsel for the appellant is that the

impugned order passed by the learned Single Judge is without

jurisdiction as on the date of passing the order, learned Single Judge had

no determination to hear a petition involving police inaction. He has

also submitted that against the impugned summons the petitioner has

remedy of filing an appeal and that in compliance of the impugned order

the writ petitioner has appeared before the E.D. at Kolkata, therefore,

nothing survives in the writ petition which has now become infructuous.

He further submits that the petitioner had made a false declaration in the

petition that she is a citizen of India whereas she is a citizen of Thailand.

He has also submitted that learned Single Judge has in fact exercised the

power under Section 438 of the Cr.P.C. and that no reason has been

assigned for extending the protection of no coercive action.

5. Learned Counsel for the respondent No.1, writ petitioner has

submitted that it is not a case of police inaction, therefore, learned

Single Judge has the jurisdiction and that there is typographical error in

the writ petition about mentioning the writ petitioner to be Indian

citizen, but there is no suppression. He has further submitted that the

writ petitioner has no objection in appearing before the appellant at

Kolkata and that learned Single Judge has relied upon the order of the

Hon'ble Supreme Court passed in respect of other persons in the same

ECIR. An objection has also been raised that about 3 months have

lapsed after the order of the learned Single Judge, therefore, at this

stage, no interference is required.

4 MAT 1762 of 2022

6. Learned Counsel appearing for the respondent No. 2, Union of

India has also supported the appellant by submitting that learned Single

Judge has travelled beyond the scope of writ petition and argument

advanced while granting the protection about no coercive action. He

further submits that no reason has been assigned for granting the relief

of no coercive action and that the writ petitioner has not approached the

writ Court with clean hands, therefore, the petition is liable to be

dismissed.

7. We have heard learned Counsel for the parties and perused the

record.

8. First issue is if learned Single Judge had the jurisdiction to pass

the order under appeal. If there was no such jurisdiction, then in terms

of the judgment of Hon'ble Supreme Court in the matter of State of

Rajasthan vs. Prakash Chand and Others reported in (1998) 1 SCC

1, in the matter of Shanti Bhushan vs. Supreme Court of India

Through Its Registrar and Another reported in (2018) 8 SCC 396, in

the matter of Inder Mani and Others vs. Matheshwari Prasad and

Others reported in (1996) 6 SCC 587, the order of learned Single Judge

becomes non est. Undisputedly on the date of passing of the order,

learned Single Judge had the determination to hear the matters (motion

and hearing) under Article 226 of the Constitution of India relating to

residuary under Group-IX (excluding matters related to police inaction

etc.). The jurisdiction of learned Single Judge has been questioned on

the ground that the present matter falls under the category of police

inaction, but such a plea cannot be accepted in view of the fact that

Hon'ble Supreme Court in the matter of Vijay Madanlal Choudhary

and Others vs. Union of India and Others reported in 2022 SCC 5 MAT 1762 of 2022

OnLine SC 929 has settled that the process envisaged by Section 50 of

the PMLA is in nature of inquiry against the proceeds of crime and is

not "investigation" in strict sense of the term for initiating prosecution

and the authorities under the PMLA are not police officers as such.

Thus, the contention of the appellant that learned Single Judge has no

jurisdiction to hear the writ petition, cannot be accepted.

9. Next argument advanced by the Counsel for the appellant is

that on account of subsequent development nothing survives in the writ

petition itself.

10. The record reflects that the sole prayer of the petitioner in the

writ petition was to quash the summons dated 26th of July, 2022 and 12th

of August, 2022. These summons were issued for the limited purpose

seeking appearance of the petitioner before E.D. on the given date. The

summon for appearing on 26th of July, 2022 contains the summon No.

"PMLA/SUMMON/HIU2/2022/616" and the summon dated 12th of

August, 2022 contains a different summon No.

"PMLA/SUMMON/HIU2/2022/663". These summons were issued in

connection with F.No. ECIR/17/HUI/2020. The summons were in terms

of Section 50(2) and (3) of PMLA related to powers of authorities

regarding summons, production of documents and to give evidence etc.

Sub-Section 2 of Section 50 empowers the specified officer to summon

any person whose attendance is considered necessary to give evidence

or to produce any records during the course of any investigation or

proceeding under the Act. In terms of Sub-Section 3, the persons so

summoned are required to attend in person or through authorised agents

and they are bound to state the truth in respect of the subject specified 6 MAT 1762 of 2022

therein. It is undisputed before this Court that after the order of learned

Single Judge and in pursuance to the direction of the learned Single

Judge, the writ petitioner has appeared before the appellant at Kolkata.

There is no further direction to the writ petitioner by the appellant to

appear. Hence, the impugned summons have been worked out and have

lost their force now. As on date, there is nothing on record indicating

that the writ petitioner is further required to appear before the appellant

in terms of Section 50 of PMLA. Thus, nothing survives in the pending

writ petition. In fact, by way of interim relief, learned Single Judge had

granted the final relief to the writ petitioner. Therefore, the writ petition

has now become infructuous for all practical purposes.

11. So far as the other issue relating to making false declaration in

the writ petition that the writ petitioner is a citizen of India and claiming

the relief under Article 19 and 15(3) of the Constitution on that basis

which are only available to the citizens of the country, we find that

undisputedly writ petitioner is not a citizen of India but we need not go

into that issue because the issue has become academic on account of

subsequent development noted above. Similarly we also find in the

impugned order, while extending the interim protection for no coercive

action, no reasons have been assigned by the learned Single, but this

issue has also becomes academic now because the summons impugned

in the petition have lost their force on account of subsequent appearance

of the writ petitioner at Kolkata in compliance of the summons in

pursuance to the order of the learned Single Judge.

12. Learned Counsel for the appellant has also placed reliance

upon the order of the Single Bench of the Court in the matter of Menka

Gambhir vs. Union of India and Others reported in (2020) 2 Cal LT 7 MAT 1762 of 2022

158 wherein the summons issued to the present petitioner by the Joint

Commissioner of Customs, AIU, NSCBI, Airport, Kolkata was subject

matter of challenge. Referring to the same, he has raised the submission

that the writ petitioner resides at Rajouri Garden, New Delhi, but such

an issue also at this stage need not be gone into.

13. Thus, we find that nothing survives in the present writ petition

pending before the learned Single Judge which has become infructuous

on account of subsequent development noted above. Thus, we permit

the appellant to approach the learned Single Judge for formal disposal of

the petition in terms of the observations made above. Liberty to mention

before the learned Single Judge. The appeal is accordingly disposed of.

(PRAKASH SHRIVASTAVA) CHIEF JUSTICE

(ANANYA BANDYOPADHYAY) JUDGE Kolkata 23.12.2022 ________ PA(SS)

(A.F.R. / N.A.F.R.)