Enforcement Directorate vs Unknown
2022 Latest Caselaw 7243 Cal

    1
11.10.2022

RKB/adeb

C.R.R. No. 3880 of 2022

In Re : An application under Section 397/401 read with Section 482 of Code of Criminal Procedure 1973 and Article 227 of the Constitution of India.

In the matter of: Enforcement Directorate ...Petitioner

Mr. Phiroze Edulji Ms. Anamika Pandey Ms. Amrita Pandey Mr. Ghanshyam Pandey Ms. Sneha Singh Ms. Shikha Kashyap ....for the Enforcement Directorate

Mr. Billwadal Bhattacharyya, Ld. Deputy Solicitor General

...for the CBI Mr. Dipak Sengupta Mr. Farook Rezzak Mr. Sabir Ahmed Mr. Anirban Guhathakurta Mr. Sanjib Dan Mr. Sujan Chatterjee Ms. Nayana Mitter Mr. Debayan Mukherjee ...for the Opposite Party

The present application has been preferred challenging

the order dated 7th October, 2022 passed by the learned

Vacation Judge, Paschim Bradhaman in respect of ECIR-

KLZO/41/2020 thereby rejecting the prayer of the petitioner/

Enforcement Directorate in respect of issuance of production

warrant and grant of transit remand to the accused Sehegal

Hossain.

Mr. Phiroze Edulji, learned advocate appearing for the

Enforcement Directorate draws attention of the Court to the

application which was preferred under Section 267 read with

Section 167 of the Code of Criminal Procedure, 1973 read

with Section 65 of the Prevention of Money Laundering Act,

2002 for seeking production warrant cum transit remand of

the accused named above. In the said application two prayers

were advanced, firstly, issuance of production warrant of the

accused Sehegal Hossain, secondly, grant of transit remand

of the accused to be produced before the Learned Special

Judge (PC Act) (CBI)-18, Rouse Avenue District Courts, New

Delhi.

The application contained amongst others the merit of

the cases particularly with the reference to the complaint and

the supplementary complaint which was filed before the

designated Learned Special Judge (PC Act) (CBI)-18, Rouse

Avenue District Courts, New Delhi wherein option was kept

open for further investigation of the case. Details of the fact

which surfaced in course of the earlier investigation was

narrated in the application so filed and it was contended that

a prayer was advanced before the CBI Special Court, Asansol

on 28th September, 2022 for interrogating the accused

Sehegal Hossain in jail which was granted by the learned

Special Court Asansol and pursuant to which statement was

recorded under Section 50 (2) and Section 50 (3) of the PMLA

ACT, 2002. The investigating agency/petitioner claimed that

having regard to the materials which surfaced on

interrogation of the accused, his custody was required for

further interrogation and for production before the

designated Court at Delhi.

Learned advocate appearing for Enforcement

Directorate produced the record before this Court regarding

the schedule of some properties as also the statement of the

accused which was recorded in jail and by pointing out the

differences prayed before this Court for custody of the

accused.

Mr. Billwadal Bhattacharya, learned Deputy Solicitor

General was directed to be served for the purpose of

ascertaining from CBI as to whether the accused who has

been detained in connection with the RC 0102020A0019

dated 21.09.2020 for commission of offences punishable

Under Section 120B IPC read with Section 7,11,12 of the PC

ACT is any further required by the CBI for the purpose of the

investigation which is pending or continuing in connection

with the said case.

Learned Deputy Solicitor General on instruction from

Mr. Rajiv Mishra Superintendent of Police, Anti-Corruption

Branch submitted that the CBI has got no objection if in the

interest of justice the accused/opposite party is handed over

to the Enforcement Directorate for the sake of their

investigation in this particular case.

Mr. Farook Rezzak, learned senior advocate appearing

on behalf of the accused/opposite party, namely Sehegal

Hossain pointed out to this Court that it is an admitted

position that the production warrant which was sought for

before the Learned Special Judge (PC Act) (CBI)-18, Rouse

Avenue District Courts, New Delhi by the Enforcement

Directorate was refused on 05.09.2022. The prayer for

interrogating the accused was also refused on 09.09.2022.

The petitioner has proceeded thereafter to the CBI Special

Court at Asansol and prayed for interrogating the accused

which was granted and consequently the petitioner was

shown arrested thereafter a prayer was advanced before the

learned Vacation Judge, Paschim Bardhaman for production

warrant and transit remand.

It was pointed out by the accused that before the

learned Vacation Judge, Paschim Bardhaman the orders

dated 05.09.2022 and 09.09.2022 were suppressed. It has

further been contended by the opposite party that the

production warrant and transit remand which was sought for

before the Court which did not have any jurisdiction. Prayer

as such has been made before this Court for dismissing the

revisional application, until and unless proper production

warrant is issued by the jurisdictional Court.

Mr. Phiroze Edulji, on other hand produced a

notification by the Judicial Secretary which reflects that the

authority was vested with the Vacation Judge, Paschim

Bardhaman in respect of offences under the P.C. Act, NDPS

Act as also other special act. To that aspect the notification

so placed before this court suffies the fact that the Vacation

Judge, Paschim Bardhaman had the authority to consider

the prayer as advanced by the Enforcement Directorate.

However coming back to the prayers which were

advanced in this revisional application certain issues are to

be considered as contained in this revisional application

itself. So far as ECIR/KLZO/41/2020 is concerned the Court

having jurisdiction or the designated Court having authority

to decide the merits of the case and where complaint and

supplementary complaint was filed is the Court at Delhi

being Learned Special Judge (PC Act) (CBI)-18, Rouse Avenue

District Courts, New Delhi. The said Court refused to grant

production warrant relying upon the decision of Harshad S.

Mehta Vs. CBI and it was the opinion of the Special Court

that the provisions of Section 267 of the Cr.P.C. for

production of the accused cannot be taken assistance of in

view of the pronouncement made therein by the Hon'ble

Delhi High Court in its order dated 01.10.1992. The decision

relied upon by the learned Special Court is debatable in view

of the Division Bench judgement of this Court in Ram

Swarath Yadav Vs. State reported in 2005 SCC OnLine Cal

17: (2007) 1 CHN 289. The very starting sentence of sub-

section (1) of Section 267 and Clause (a) of Section 267(1)

refers to the terms "enquiry, trial or other proceeding" and

"for the purpose of any proceeding against him". The Calcutta

High Court judgment in paragraph 79 held as follows:

"79. In conclusion, we are of the view that the phrase "or other proceeding" in section 267 of the said Code would also include the concept of investigation."

The provision of Section 267 of Cr.P.C. relating to

production warrant in course of investigation has also been

referred to while deciding criminal appeals by the Hon'ble

Supreme Court in Mohd. Jalees Ansari and Ors. Vs. CBI

reported in (2016) 11 SCC 544; in paragraph 68 and 69 of

the said judgment it is reflected that the designated Court

issued production warrant and after production of the

accused before the designated Court from the Court having

custody, the investigating agency prayed for police custody in

the designated Court. Thus, the concept of issuing

production warrant at the time of investigation is no more an

issue to be decided.

However, Mr. Phiroze Edulji, learned advocate

appearing for Enforcement Directorate was repeatedly asked

as to whether the order dated 05.09.2022 passed by the

Learned Special Judge (PC Act) (CBI)-18, Rouse Avenue

District Courts, New Delhi would be pursued by the

Enforcement Directorate before the High Court at Delhi as

there was a specific averment in the Revisional Application

made in paragraph-29.

Mr. Edulji submitted on instruction that he has been

instructed to submit before this Court that the remedy for

challenging the legality of the orders passed on 05.09.2022

and 09.09.2022 refusing the prayer under Section 267 of the

Code of Criminal Procedure would be proceeded by the

Department before the Hon'ble High Court at Delhi.

Having regard to such contention of the Enforcement

Directorate who till date has not pursued the remedy, and

are yet to decide as to whether their prayer was under

Section 267 of the Code of Criminal Procedure or under

Section 167 of the Code of Criminal Procedure before the

Learned Vacation Judge, Paschim Bardhaman , I am of the

opinion that the Court at Paschim Bardhaman did not have

the power to adjudicate the issue of Section 267 of the Code

of Criminal Procedure while considering the application so

filed before the said Court, as the production warrant was to

be issued by the Court at Delhi which is in seisin of the

merits of the case.

However, the Vacation Judge, Paschim Bardhaman

had the power to decide on the issue of transit remand under

Section 167 of the Code of Criminal Procedure.

The provisions of the Code are not just printed words

but there must be flesh and blood attached to the

interpretation of the provisions, whether the provisions of

Section 267 of the Code of Criminal Procedure is to be

applied or Section 167 of the Code of Criminal Procedure is

to be invoked is in respect of the same person who is to be

sent to the Court at Delhi. The two Courts are different one

at Delhi which is in seisin of the PMLA matter while the CBI

Court is at Asansol within the domain of Calcutta High

Court. It would have been easier to decide the issue in case

the Enforcement Directorate decided that they would not

pursue their remedy under Section 267 of the Code of

Criminal Procedure before the Hon'ble High Court at Delhi

(as it has been submitted that the legality of the production

warrant which was refused by the Special Court at Delhi

would be challenged).

The next issue remains that whether this Court would

in the circumstance be empowered to grant a transit remand

in the absence of specific order from the Court at Delhi. An

apprehension has been expressed by the learned advocate

that since the accused has already been shown arrested on

7th October, 2022 it may be difficult for interrogating the

accused in police custody in view of the first fourteen days

running out of time. The issue has been settled by the

Hon'ble Supreme Court in State of West Bengal Vs. Dinesh

Dalmia reported in (2007) 5 SCC 773 wherein Hon'ble

Supreme Court was pleased to hold that the date for police

custody would be reckoned/counted from the day when the

accused is produced before the jurisdictional Court.

However, taking into account the totality of the

circumstances, the petition/application which has been filed

before the Vacation Judge, Paschim Bardhaman, the nature

of the prayers sought for and the multiple proceedings

initiated by the Enforcement Directorate and the remedy

under Section 267 of the Cr. P.C. being still pursued before

the High Court at Delhi, I am of the opinion that the

application so filed before the learned Vacation Judge,

Paschim Bardhaman and rejected by the order dated

07.10.2022 do not call for interference as the said application

before the Vacation Judge, Paschim Bardhaman was

misconceived.

Consequently, the revisional application being CRR

3880 of 2022 is dismissed.

Pending connected application, if any, also stands

disposed of.

All parties shall act on the server copy of this order duly

downloaded from the official website of this Court.

(Tirthankar Ghosh, J.)