Rajasthan High Court: In a writ petition filed for quashing the Enforcement Case Information Report (‘ECIR’) and deter any coercive action against the petitioners, the single Judge bench Pushpendra Singh Bhati, J., found no ground to grant relief to the petitioners.
In 2014, the collector was informed regarding the forged pattas or ‘record of rights’ in relation to the land situated in Bikaner whose mutation was cancelled in the revenue records. In accordance with such offence, four First Information Report (‘FIR’) were registered under Sections 420, 467, 468, 471 and 120-B of the Penal Code, 1860 against the original allottees of the lands in question and subsequently chargesheet was filed in 2015.
Eventually after recording ECIR, summons were issued to the petitionerand to its partner, namely Robert Vadra and to another petitioner namely, Mahesh Nagar, consequently, to which both the petitioners filed a criminal writ petition challenging the issuance of summons by the Enforcement Directorate (‘ED’). Whereof, the Court had directed the respondents to restrain from taking coercive action against the petitioners which was later modified, directing the petitioners to appear before the respondent authorities, for the purpose of necessary investigation, as required under the Prevention of Money Laundering Act, 2002 (‘PMLA’); the petitioners were however, granted protection from arrest.
The thrust of Sky Light contentions were based upon the conclusion of the Supreme Court in Vijay Madanlal Choudhary v. Union of India, 2021 SCC OnLine SC 1048 which found no reason for the ECIR to be sustained against the accused, without there being any evidence of a predicate offence or an FIR against them which is in existence or is legally alive. It was the contention of Sky Light that none of their employer’s name were neither mentioned in the FIR nor the chargesheet. They were not even accused of offence of money laundering under S. 3 & 4 of PMLA, nor were they accused of a predicate or scheduled offence under PMLA
1. Whether the copy of the ECIR in question may be given to the petitioners?
(Decided in favour of the respondents and against the petitioners)
2. Whether the ECIR in question may be quashed and if so, on what grounds?
(Decided in favour of the respondents and against the petitioners)
The Court relying on Vijay Madanlal Choudhary (supra) answers the first issue which crystalised the stand stating that ECIR is not a statutory document nor is there any provision in the PMLA requiring the authority to record ECIR or to furnish copy to the accused. Further, it was stated that ECIR cannot be equated with an FIR which is mandatorily required to be recorded and supplied to the accused. Therefore, the Court observed that it’s at the discretion of the ED whether to give a copy of the ECIR to persons seeking the same.
The Court further observed that an ECIR was not akin to an FIR and the contentions made on behalf of the petitioners that they ought to be provided a copy of the same as a matter of right does not hold water. In arriving at this conclusion, this Court drove strength from the judgment rendered in the case of Vijay Madanlal Choudhary (supra), which had made the legal position amply clear; “that an ECIR is merely an internal document created by the Enforcement Directorate upon the basis of which an investigation is conducted. It is equated to a fact finding report, a copy of which cannot be demanded by any persons, unless the competent Court, on the basis of such ECIR, proceeds to take cognizance against any such person(s) under the PML Act.”
Therefore, the Court held that the copy of the ECIR in question thus cannot be given to the petitioners and accordingly the first contention was decided in favour of the respondents and against the petitioners.
The Court went on to note that even if the petitioners were not named as accused or witnesses in the FIRs registered for predicate offences and in the chargesheet so filed, however, upon perusing both the supplementary chargesheets, it was mentioned that the permission was sought to continue with the investigation under S. 173(8) CrPC against the petitioners.
With respect to the second issue at hand, the Court stated that catena of judgments relied upon by the petitioners to put forth their cases were distinguishable from the factual matrix of the present case and were not applicable to the issues before the Court, thus, did not require any deliberation. Further the Court stated that the arguments contended by the petitioners pertaining to their names not being in the prosecution complain is an irrelevant consideration for quashing of ECIR in question.
Moreover, the Court held the contention of the petitioners that officers of ED cannot be categorised as police officers, resultantly the bar under S. 25 of the Indian Evidence Act, 1872 not applying to them, as again an irrelevant ground for quashing the ECIR.
The Court, however, found force in the contentions put forth by the Additional Solicitor General of India appearing on behalf of the respondents that that the criminal and civil proceedings under PMLA were independent and separate from each other, and may run simultaneously.
In arriving at such a conclusion, this Court drove its strength from the language of the provision of law as contained in Section 8 of PMLA, further clarified by the view taken by the Kerala High Court in the case of Kavitha G. Pillai v The Joint Director, 2017 SCC OnLine Ker 10118
The Court held that “PML Act was brought in with a special legislative intention, and therefore, it prevails over the provisions of Cr.P.C., in case of any conflict”
“The offence of money laundering under Section 3 read with Section 4 of the PML Act is an independent and standalone offence, and as such is a criminal act independent from that of predicate offence(s).”
The Court opined that the petitioners have not been arrayed as accused, and at the given stage, seeking the intervention of this Court for quashing of the ECIR in question, is pre-mature.
In addition, the Court stated that the predicate offences have been found to be made out against the petitioners and the petitioners have failed to indicate any violation of any procedure established under PMLA during the investigation so as to warrant the interference of this Court.
Accordingly, the Court did not find the case to be made out to grant relief to the petitioners and thus, dismissed the petition.
[Sky Light Hospitality LLP v. Union of India, 2022 SCC OnLine Raj 2530, decided on 22-12-2022]
Advocates who appeared in this case:
For the Petitioner- Senior Advocate KTS Tulsi;
Senior Advocate Vikas Balia;
Advocate Faraz Khan;
Advocate MS Husain;
Advocate Anup Kumar Pandey;
Advocate Farman Bilal Rayeeni;
Advocate Abhishek Mehta;
Advocate S. Tabrez;
For the Respondents- Additional Solicitor General of India RD Rastogi;
Senior Advocate B.P. Bohra;
Advocate Akshay Bhardwaj;
Advocate Pukhraj Servi;