Madras HC dismisses appeals by Nalini Chidambaram against ED Summons
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Madras HC dismisses appeals by Nalini Chidambaram against ED Summons

Meera Emmanuel

The Madras High Court has dismissed appeals filed by Senior Advocate Nalini Chidambaram against the summons issued for her personal appearance before the Enforcement Directorate (ED), Kolkata in connection with the investigation in the Saradha Chit Fund scam case.

The summons in question had been issued by the ED in September 2016, under Section 50 of the Prevention of Money Laundering Act (PMLA), 2002.

In a petition filed against the same, Chidambaram had contended that the ED’s powers to summon witnesses were restricted by Section 160 of the Code of Criminal Procedure (CrPC), 1973. Section 160 provides inter alia that a woman cannot be required to attend an investigation at any place other than the place in which she resides.

It was also argued that Chidambaram’s personal presence was not required in the case, and that repeated insistence on her personal appearance before the ED amounted to harassment.

Last April, Justice SM Subramaniam had dismissed this petition, holding that there was no mandate for the application of Section 160 in the instant case. Further, it was held that the authorities under the PMLA had sufficient powers to secure the personal appearance of witnesses during investigation.

The Division Bench of Justices MM Sundresh and Anand Venkatesh has now affirmed this position. Arguments in the appeal were made by Senior Advocate KTS Tulsi for Chidambaram, and ASG G Rajagoplan for the ED.

The judgment pronounced today notes that wide discretion rests on the authorities under the PMLA to either personally summon a person or permit her authorized agent in connection with proceedings under the Act. As noted by the Court,

“…once a satisfaction is arrived on the need to summon a person physically, the same has to be done to facilitate a smooth progress in the investigation process. Thus, a woman can certainly be called in a given case by an authority while exercising its discretion on relevant materials.”

As regards the contention that Section 160 would restrict the scope of issuing personal summons when it comes to women, the Court took the view that the object underlying the provision was only to shield the woman from an environment typical of police stations.

In other words, the protection would come into play in police investigations conducted generally under the CrPC. This restriction would not apply to the special proceedings conducted by the ED under the PMLA.

The object behind Section 160 of the Criminal Procedure Code is not to expose a woman to the environment surrounding police station which will certainly not be available in a proceeding by way of an investigation under Act 15 of 2003 [PMLA]. The summons that were issued by the competent authority under the Act was in exercise of powers conferred on the authority under Section 50 of the Act.

It has also been emphasized that authorities under the PMLA are different from the police.

While Section 50(2) of the Act 15 of 2003 [PMLA] speaks of an authorised agent, the same is missing under the Code. There is no proceedings under the Code as being dealt with under the Act 15 of 2003 by an authority. Merely because trappings of police power is given, an authority cannot be compared with the policemen under all circumstances and so is his office.

Ultimately, the Court notes that there is no need to read Section 160 of the CrPC into the PMLA, since the ED has been expressly conferred independent powers to summon witnesses under Section 50 of the PMLA. To buttress this position, the Court also made reference to Section 71 of the PMLA, which speaks of the overriding effect of the Act in the event of any inconsistency.

There is no necessity to meet the requirements of the proviso to Section 160 of the Code of Criminal Procedure since an independent power has been conferred on the authority under Section 50 of the Act. Wherever the Act itself stipulates the specific power, authority and procedure, there is no requirement to read the provisions of Code of Criminal Procedure into it.

In fact, the most harmonious manner in which both the enactments can be parallely invoked would be to ensure that the provisions of Code of Criminal Procedure are not read into or invoked wherever the Act itself specifically provides for the same.

Contentions made that the ED proceedings were motivated by malice and bias were also rejected as being speculative.

There is no need to speculate. Neither a likelihood of bias nor malice can be seen through the summons issued. The appellant did not choose to challenge the summons earlier. She did rightly appear through the authorized agent. Issues have been raised only when the second respondent [ED] had asked her to appear in person.

On these grounds, the Court dismissed the appeals, holding,

In fine, both the appeals stand dismissed. However, liberty is given to the respondents to issue a fresh summons to the appellant requiring her appearance in person. No costs.”

Read the judgment:

Madras-HC-Nalini-Chidambaram-ED-summons.pdf
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