Jharkhand High Court
Amit Kumar Agarwal vs Directorate Of Enforcement on 30 November, 2022
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
-----
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.
-----
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
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
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;
[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
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."
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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/
