Supreme Court: Distinction between S 50 of PML Act and Section 160/161 of Code of Criminal Procedure

 Apart from the fact that Section 50 is a gender neutral, as it does not make any distinction between a man and a woman, there are glaring inconsistencies between the provisions contained in Section 50 of PMLA and Section 160/161 of Code of Criminal Procedure. The Chapter XII of Code of Criminal Procedure pertains to the "Information to the Police and their Powers to Investigate". Section 160 which falls under Chapter XII empowers the Police Officer making an investigation under the said Chapter to require any person to attend within the limits of his own or adjoining station who, from the information given or otherwise appears to be acquainted with the facts and circumstances of the case, whereas, the process envisaged by Section 50 of the PMLA is in the nature of an inquiry against the proceeds of crime and is not "Investigation" in strict sense of the term for initiating prosecution; and the Authorities referred to in Section 48 of PMLA are not the Police Officers as held in Vijay Madanlal. It has been specifically laid down in the said decision that the statements recorded by the Authorities Under Section 50 of PMLA are not hit by Article 20(3) or Article 21 of the Constitution, rather such statements recorded by the authority in the course of inquiry are deemed to be the Judicial proceedings in terms of Section 50(4), and are admissible in evidence, whereas the statements made by any person to a Police Officer in the course of an investigation under Chapter XII of the Code could not be used for any purpose, except for the purpose stated in the proviso to Section 162 of the Code. In view of such glaring inconsistencies between Section 50 PMLA and Section 160/161 Code of Criminal Procedure, the provisions of Section 50 PMLA would prevail in terms of Section 71 read with Section 65 thereof. {Para 16}

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 2221-2222 of 2023

Decided On: 09.09.2024

Abhishek Banerjee and Ors. Vs. Directorate of Enforcement

Hon'ble Judges/Coram:

Bela M. Trivedi and S.C. Sharma, JJ.

Author: Bela M. Trivedi, J.

Citation:  MANU/SC/0991/2024,2024 INSC 668.

Read full Judgment here: Click here.

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Supreme Court: Section 50 of PML Act is not violative of Article 20(3) or Article 21 of the Constitution.

 The above ratio laid down in Vijay Madanlal clinches the contentions raised by the learned Counsels for the Appellants with regard to the provisions of Section 50 being violative of Article 20(3) or Article 21 of the Constitution, and we need not further elaborate the same, nor do we need to deal with the decisions of this Court on the said issue which have already been dealt with in Vijay Madanlal. Suffice it to say that Section 50 enables the authorized Authority to issue summon to any person whose attendance he considers necessary for giving evidence or to produce any records during the course of the proceedings under the Act, and that the persons so summoned is bound to attend in person or through authorized agent, and to state truth upon the subject concerning which he is being examined or is expected to make statement and produce documents as may be required by virtue of Sub-section (3) of Section 50. At the stage of issue of summons, the person cannot claim protection Under Article 20(3) of the Constitution, the same being not "testimonial compulsion". At the stage of recording of statement of a person for the purpose of inquiring into the relevant facts in connection with the property being proceeds of crime, is not an investigation for prosecution as such. The summons can be issued even to witnesses in the inquiry so conducted by the authorized officers. The consequences of Article 20(3) of the Constitution or Section 25 of the Evidence Act may come into play only if the involvement of such person (noticee) is revealed and his or her statements is recorded after a formal arrest by the ED official. In our opinion, the learned Counsels for the Appellants have sought to reagitate the issues which have already been settled in Vijay Madanlal.

{Para 19}

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 2221-2222 of 2023

Decided On: 09.09.2024

Abhishek Banerjee and Ors. Vs. Directorate of Enforcement

Hon'ble Judges/Coram:

Bela M. Trivedi and S.C. Sharma, JJ.

Author: Bela M. Trivedi, J.

Citation:  MANU/SC/0991/2024,2024 INSC 668.

Read full Judgment here: Click here.

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Supreme Court: PMLA Prevails Over CrPC Regarding Procedure For Summoning Persons

 Apart from the fact that Section 50 is a gender neutral, as it does not make any distinction between a man and a woman, there are glaring inconsistencies between the provisions contained in Section 50 of PMLA and Section 160/161 of Code of Criminal Procedure. The Chapter XII of Code of Criminal Procedure pertains to the "Information to the Police and their Powers to Investigate". Section 160 which falls under Chapter XII empowers the Police Officer making an investigation under the said Chapter to require any person to attend within the limits of his own or adjoining station who, from the information given or otherwise appears to be acquainted with the facts and circumstances of the case, whereas, the process envisaged by Section 50 of the PMLA is in the nature of an inquiry against the proceeds of crime and is not "Investigation" in strict sense of the term for initiating prosecution; and the Authorities referred to in Section 48 of PMLA are not the Police Officers as held in Vijay Madanlal. It has been specifically laid down in the said decision that the statements recorded by the Authorities Under Section 50 of PMLA are not hit by Article 20(3) or Article 21 of the Constitution, rather such statements recorded by the authority in the course of inquiry are deemed to be the Judicial proceedings in terms of Section 50(4), and are admissible in evidence, whereas the statements made by any person to a Police Officer in the course of an investigation under Chapter XII of the Code could not be used for any purpose, except for the purpose stated in the proviso to Section 162 of the Code. In view of such glaring inconsistencies between Section 50 PMLA and Section 160/161 Code of Criminal Procedure, the provisions of Section 50 PMLA would prevail in terms of Section 71 read with Section 65 thereof. {Para 16}

17. So far as the procedure to be followed by the Summoning Officer while exercising the powers Under Sub-section (2) and (3) of Section 50 of the PMLA is concerned, it is pertinent to note that Rule 11 of the said Rules 2005, requires the Summoning Officer to follow the procedure as prescribed therein, i.e., to issue Summons in Form V appended to the said Rules. The said prescribed Form V requires Summoning Officer to mention not only the Name, Designation and Address of the Summoning Officer but also the details of the persons summoned as also the documents sought therein. The foot note of Form V also mentions that the proceedings shall be deemed to be judicial proceedings within the meaning of Section 193 and Section 228 of the Indian Penal Code, and if the person summoned fails to give evidence as mentioned in the Schedule, he would be liable to penal proceedings under the Act. Thus, there being specific procedure prescribed under the Statutory Rules of 2005 for summoning the person Under Sub-sections (2) and (3) of Section 50 of the Act, the same would prevail over any other procedure prescribed under the Code, particularly the procedure contemplated in Section 160/161, as also the procedure for production of documents contemplated in Section 91 of the Code, in view of the overriding effect given to the PMLA over the other Acts including the Code of Criminal Procedure Under Section 71 r/w Section 65 of the PMLA.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 2221-2222 of 2023

Decided On: 09.09.2024

Abhishek Banerjee and Ors. Vs. Directorate of Enforcement

Hon'ble Judges/Coram:

Bela M. Trivedi and S.C. Sharma, JJ.

Author: Bela M. Trivedi, J.

Citation:  MANU/SC/0991/2024,2024 INSC 668.

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