Statutory Right of Police

In an Order passed in the case- Anandrao Vithoba Adsul v. Enforcement Directorate ,Govt. of India and another , delivered on October 14, 2021, a Bombay High Court division bench consisting of Justices Nitin Jamdar and Sarang V. Kotwal have reiterated the Supreme Court’s declaration in the case of M/s Neeharika Infrastructure Pvt. Ltd. v. state of Maharashtra –AIR 2021 SC 1918, that there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime, which should not be ordinarily be interfered with by exercise of the inherent jurisdiction of this Court.

The SC has followed this decision further in the case of State of Bihar v. JAC Saldhana –(1980) 1 SCC 554. The SC has observed that investigation into the crime is the prerogative of the Police, and excepting rare cases, the judiciary should not enter in the arena of the investigation. After reviewing the law in the Neeharika decision, the SC has concluded that the Courts would not stall any investigation into the cognizable offence in which the police have a statutory right and duty to investigate save and except cases where non-interference would result into a miscarriage of justice. The judicial process should not be used, except in rare cases, to quash prosecution at the inception.

The HC has observed that considering this law on the subject and the facts of the case in hand the Court did not see any fact justifying it to be treated as an exceptional case to hold that the initiation of proceedings under PMLA (Prevention of Money Laundering Act, 2002) and the ECIRs filed against the petitioner are either abuse of powers or are mala fide. The Court has been not shown anything, which can be considered as beyond jurisdiction or outside the ambit of the PMLA.

The petitioner-Adsul is a Member of Lok Sabha from Amravati Constituency and Union Minister of State for Finance. The respondent -1 is the Enforcement Directorate (E.D.), authorized under the PMLA and the second respondent is the State of Maharashtra.

The petitioner’s case is based on three contentions: 1.There is no predicate offence against the petitioner, and as per the mandate under the PMLA, if there is no predicate offence registered against the petitioner, the proceedings under the Act cannot proceed further as against the petitioner; 2. The petitioner ought to be given a copy of the ECIRs, without which the petitioner is unable to take recourse to remedy under the law for vindication of his rights; and 3. The summons issued and ECIRs are vitiated by mala fides and malice, and where mala fides and malice on the part of the authorities are demonstrated , this Court in the exercise of its writ and inherent jurisdiction should pass orders protecting the liberty of the citizens.

Regarding the first contention, the HC has pointed out that the petitioner’s counsel. After initially submitting this point, subsequently, accepted the position of law that it is not necessary for proceedings need to be taken further under the PMLA that the person needs to be named in the FIR lodged for the predicate offence. Suffice it to say that this contention of the petitioner was based on the fact that the predicate offence sought to be relied upon by the respondent -1 in the FIR filed by the petitioner himself at N.M.Joshi Marg Police Station, and in this FIR , there is no allegation against the Petitioner.This FIR was transferred to Economic Offences Wing and numbered differently.

The petitioner’s counsel did not dispute the proposition that even if a person is not named in the FIR in respect of scheduled offence, the proceedings under the PMLA can commence against such a person. The only contention of the petitioner is that since the petitioner has himself filed the FIR , if it is to be used against the petitioner on the premise that it is a predicate offence, then there must be material that the respondent-1 must demonstrate. Further, this contention of the petitioner is not required to be adjudicated in view of the stand of the petitioner.

The HC has rejected petitioner’s prayer that the respondents be directed to supply the copy of the ECIR in question to the petitioner as being akin to a FIR, stating that this prayer cannot be accepted. Also interpreting the SC’s judgment in the case – Ashok Munilal Jain v. Asst. Director , D.E.(2018) 16 SCC 158, the HC has stated that it cannot accept the petitioner’s submission that that SC has impliedly overruled its decision in the case-Charu Kishor Mehta v. State of Maharashtra- Cr. WP No. 2961/2015 of July 29,2015. Following its decision in the Mehta’s case, the HC has rejected the petitioner’s prayer for direction to ED to supply copy of the ECIR to him.

In the cases with allegations of mala fides, the Court cannot go by general perception and assumptions. The burden is heavy on those who allege mala fides, to prove them. Therefore, the petitioner cannot create a case of mala fides by simply suggesting that as the petitioner had filed proceedings against a member of the ruling dispensation, the action by the E.D. is vitiated by mala fides is too far-fetched to accept in the facts of this case. because, no material except hints has been placed before the HC, to accept it as a legal ground of challenge.

The HC has pointed out that once it concludes that mala fides are not proved, then there is no ground on which it can infer and stall the proceedings under the PMLA.

The HC has stated that the petitioner has a statutory remedy under section 438 of the Cr.P.C. of applying for anticipatory bail for protection from arrest and it can only say that “It cannot be stated that there is no material against the petitioner”. Further the HC has clarified that exercise of jurisdiction under Article 226 of the Constitution of India and section 482 of Cr.P.C. is not warranted, as that would be contrary to the SC’s observations in paragraph 23(xvi) of the decision in the case of Neeharika Infrastructure.

The HC has rejected the writ petition and stated that the petitioner has a remedy for protection from arrest under the Cr.P.C.