More-so, this Court expect that the respected Senior Advocate like the writ petitioner, should not shy away from co-operating for an effective investigation of such offences committed under the provisions of the "PMLA", the court said.
The Madras High Court dismissed plea of senior advocate Nalini Chidambaram, challenging summons to requiring her personal appearance before Enforcement Directorate in Kolkata.
The senior advocate, who is also a senior citizen and has been practicing as a lawyer for 48 years, had approached the high court to forbear the Enforcement Directorate from taking any coercive steps or action or proceeding against the petitioner under any provision of the Prevention of Money Laundering Act (PMLA), 2002 in connection with the professional fees received by cheques from Saradha Realty India.
She contended that required documents were already submitted by her authorized representative and there is no reason to issue further summons for the personal appearance. The arguments mainly revolved around Section 160 CrPC, and whether it can be applied scrupulously in all cases of women in relation to the investigation and interrogation by the Enforcement Directorate more so under the PMLA.
Proviso to Section 160 CrPC states that no woman shall be required to attend at any place other than the place in which such woman resides. The issue was whether the "PMLA" will have the overriding effect with reference to the provisions under CrPC in the matter of issuance of summons, proceeding with the investigation and summoning a person to appear in person under the PMLA.
Referring to the provision, Justice SM Subramaniam observed that the intention behind the provision is that the aged persons, women or mentally or physically retarded disabled, cannot be compelled to travel for a long distance for the purpose of investigation and in such cases alone, the authorities can take a decision to investigate or interrogate such persons in their place of residences.
“In all the cases of aged person, women, if the authorities have to come over to the residences of the witnesses for the purpose of obtaining statement, this Court is afraid that the very ingredients in Section 160 of the Code of Criminal Procedure is not only abused and will become impracticable. Our great Nation, being a vast country, wherein large number of crimes relating to money laundering and other offences are being committed, it may not be possible for the Enforcement Directorate to travel all over the country, in each and every case for the purpose of recording the statement from the witnesses, and it is not the intention of the Legislation,” the court said observing that the proviso clause in Section 160 of the Code of Criminal Procedure is not for the purpose of granting an absolute exemption of personal appearance to all the persons across the country, who has attained the age of 65 years or women or a mentally and physically disabled.
“In case where a woman is sick and unable to move from one place to another place and bedridden, then the Investigating Officer shall not direct the woman to travel for a long distance and give evidence or statement. In such cases alone, the proviso clause can be invoked by the authorities as well as by the person, who is incapable of travelling or otherwise incapable of attending the office of the Investigating Officers. Thus, such factual circumstances are to be assessed before granting the benefit of proviso clause to Section 160 Cr.P.C. The language employed in the proviso itself is unambiguous that exemption is not absolute and subject to certain qualifications. Such qualifications are to be determined on ascertaining the facts and circumstances in each case,” the court said.
The court also observed that Nalini Chidambaram is a senior advocate actively practicing before the Hon'ble Supreme Court of India as well as before various high courts across the country and therefore such an exemption cannot be extended to her for the purpose of her non-participation in the investigation process.
“When the petitioner describes her position and status not only as a Senior Advocate, but also appearing in all High Courts, including the Supreme Court of India, then this Court has to draw the factual inference that the writ petitioner can never said to be incapable of attending or participating for the effective investigation of the case being undertaken by the respondents under the provisions of the "PMLA",” the court remarked holding that the spirit of Section 160 cannot be interpreted so as to nullify or paralyze an effective investigation process of cases under the PMLA.
It was also contended that Nalini Chidambaram was directed to appear before the investigating authorities on a Friday, so that they are having an idea to arrest her. “Such apprehensions can never be entertained in a writ petition under the given circumstances,” the court said observing that there is no materials on record to show that there are personal motive against the lawyer.