ABHISHEK BANERJEE & ANR. [APPELLANT(S)] Vs.
DIRECTORATE OF ENFORCEMENT [RESPONDENT(S)]
CRIMINAL APPEAL No(s). 2221-2222 OF 2023
(2JB, BELA M. TRIVEDI and SATISH CHANDRA SHARMA JJ., delivered by BELA M. TRIVEDI J.)
The Supreme Court ruled that the provisions of the Prevention of Money Laundering Act (PMLA), 2002, take precedence over the Code of Criminal Procedure (CrPC) when it comes to summoning individuals. This decision was made in the case where Trinamool Congress MP Abhishek Banerjee and his wife Rujira Banerjee challenged the Enforcement Directorate’s (ED) summons requiring their appearance in Delhi in connection with a coal scam investigation.
The petitioners argued that the ED could not summon them to New Delhi, as the offence occurred in Kolkata, and claimed that the CrPC’s procedural protections, particularly those in Section 160, should apply. They highlighted that Section 160 CrPC prohibits summoning women outside their place of residence. Additionally, they contended that Section 50 of the PMLA only grants ED the power to summon but does not outline the procedure, which should thus follow the CrPC guidelines.
A bench of Justices Bela M Trivedi and Satish Chandra Sharma rejected these arguments, noting that Section 71 of the PMLA explicitly provides the law overriding powers over other legislation, including the CrPC. The Court also cited Section 65 of the PMLA, which states that the CrPC provisions apply only to the extent they are not inconsistent with the PMLA.
The Court referred to the 2022 judgment in Vijay Madanlal Choudhary v. Union of India, which clarified that CrPC provisions, including Section 160, do not fully apply to money laundering investigations. It highlighted key inconsistencies between Section 50 of the PMLA and Section 160 of the CrPC. For instance, Section 50 is gender-neutral, whereas Section 160 CrPC has gender-specific protections. Moreover, while Section 160 deals with “investigation,” Section 50 focuses on “inquiry,” and statements made under Section 50 are not subject to the protections of Article 20(3) of the Constitution (self-incrimination), unlike those under the CrPC.
Given these discrepancies, the Supreme Court concluded that PMLA provisions override the CrPC. It also pointed out that specific procedures for summoning individuals under the PMLA Rules, 2005, would supersede those of the CrPC, particularly Sections 160 and 161, which govern witness summoning and statement collection. Similarly, Section 91 of the CrPC, which deals with document production, would not apply in PMLA cases.
The Court further upheld the enforcement of summons under Section 50 of the PMLA, noting that under sub-section (3) of Section 50, individuals summoned must attend in person or through authorized agents and truthfully provide the requested information. Failing to comply with these summons could lead to prosecution under Section 174 of the Indian Penal Code (IPC) for willfully disobeying the directive. Since the constitutionality of Section 50 of the PMLA had already been upheld in the Vijay Madanlal case, the Court dismissed the Banerjees’ arguments, ruling that their summons by the ED was lawful and that any violation would constitute a criminal offence.
