Calcutta HC Stays Summons Issued By ED To An Advocate Representing His Client Before ED [Read Order]

The ED had summoned the Petitioner-Advocate, B. N. Joshi, who had been representing one Nilesh Parekh before it, in proceedings against him under the Prevention of Money Laundering Act, 2002. The summons was issued under Section 50 of PMLA, requiring the Petitioner's personal appearance and with certain documents.

Though the documents sought were sent, Joshi did not appear before ED and asked it to withdraw the notice of appearance, reminding it of the client-attorney privileges. Nevertheless, another notice was received by him despite having placed his Vakalatnama on record, which led to the institution of a petition before the Calcutta High Court.

The Petitioner contended that ED had no locus to issue such notices of appearance to an Advocate, duly representing his client. It was submitted that the summons had been issued without any application of mind in as much as ED failed to appreciate the scope of Section 50 of PMLA which empowers the authority to issue summons for production of documents and for giving evidence.

It was submitted that the Petitioner was bound by Section 126 of the Indian Evidence Act, 1872, to not disclose any oral or documentary communications made between him and his client in a professional capacity, without express consent of the client. Rather, such disclosure would render him liable to disciplinary proceedings under the Advocates Act, 1961 and thus the order of summons was antithetical to these statutes.

He also contended that the notices were issued without jurisdiction and were "de hors" the provisions of PMLA, PCA and IPC and were violative of his rights under Articles 14, 19 and 21 of the Constitution.

In view thereof, the Petitioner prayed the high court to quash the order of Summons issued by ED and restrain it from taking any adverse action against him for non-appearance.

Taking note of the aforementioned circumstances, Justice Debangsu Basak asked the Respondents to file affidavits within two weeks and stayed the impugned order of summons till then. Justice Basak said,

"interest of justice would be sub‐served by requiring the E.D. authorities not to take any coercive measure against the petitioner for the petitioner not appearing on September 17, 2019. However, if the E.D. authorities require any further document from the petitioner, the E.D. authorities are at liberty to write to the petitioner for such documents.

xxxx

Let affidavit‐in‐opposition be filed within two weeks…"

The Petitioner was represented by Senior Advocates Jayanta Mitra, Saptangshu Basu and Abhrajit Mitra with Advocates Jishnu Chowdhury, Sarbopriyo Mukherjee, Ayan Bhattacharya, Srijib Chakraborty, Chayan Gupta, J. Basu Roy, Pranit Bag, Arif Ali, Pawan Gupta, Saumabha Ghosh, A. Agarwalla and B. Sharma. ED was represented Advocate Jatinder Singh Dhatt.

Click here to download the Order