Dismissed

M. Malla Reddy v. Union of India

Telangana HC18 Sept 2024WP/3681/2024

Case brief

AI extract

What is this about?

Writ petition challenging summons issued by Enforcement Directorate under PMLA Act after complaint was filed with Special Court. Petitioner sought quashing alleging violation of Article 20(3). Court held summons did not compel witness against self and no prior permission was needed for further investigation.

What did the court decide?

Writ petition dismissed with no order as to costs.

M. Malla Reddy Vs Union of India — Pension and Retirement Benefits | Telangana HC (2024)

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dil

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HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original Jurisdiction)

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WEDNESDAY ,THE EIGHTEENTH DAY OF SEPTEMBER TWO THOUSAND AND TWENry FOUR

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PRESENT

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THE HONOURABLE SRI JUSTICE C.V. BHASKAR REDDY

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WRIT PETITION NO: 3681 OF 2024

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Betweenl

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M. Malla Reddy, S/o M.Venki Reddy, Aged,46 years, Occ. Business, Rt/o. 1B 11, Lodha Belliza, Eden Square, Phase-lV, K.P.H.B Colony, Kuakpally, Hyderabad

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...PETITIONER

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AND

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'1. Union of lndia,, Rep by its Under Secretary, Ministry of Finance, 15, Safdarjung Road, New Delhi -1^.10001 .

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The Director of Enforcement,, Director of Enforcement, Head Office, New Delhi

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The Deputy Director,, Enforcement Directorate, Hyderabad Zonal ffice, 3rd Floor, Shakar Bhavan, 5-10-1 74, Basheer Bagh, Hyderabad-500004.

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...RESPONDENTS

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Petition under Article 226 o'f the Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue an order, direction, or Writ, more particularly in the nature of Mandamus deClaring the action of the respondent No. 3 in issuing summons bearing Summon No.PMLA/SUN/lr/ON HYZOI 202412633 in F.No. ECIRIHYZO/26122 dated 07.O2.2024 to the petitioner under section 50 (2) and (3) of PMLA Act, calling upon him to attend appear before him, despite complaint in S.C.No.16 of 2023 pending on the file of Learned Metropolitan Sessions Judgecum-Special court under PMLA Act, 2OO2, at Nampally, Hyderabad as iHegal arbitrary high-handed apa( from being violative of Article 14 and 21 ol Constitution of lndia and in contravention with provisions of Prevention of Money Laundering Act (in short PMLA) and consequently to declare the same as illegal and in contravention with the provisions of the Act, 2002 and

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lA NO: 1 OF 2024

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay all further proceedings including summoning/ appearance of the petitioner pursuant to Summon No. PIMLA/SUN/MONIHYZOI 202412633 in F.No.

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EClRlHYZOl26l22 Cated 07.02.2024, by respondent No. 3 pending S.C.No. 15 of 2023 on the file of Leamed Metropolitan Sessions Judge-cum- Special court under PMLA Act, 2002, at Nampally, Hyderabad and pass such other order or orders

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Counsel for the Petitioner : SRl. T BALA MOHAN REDDY

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Counsel for the Respondents : GADI PRAVEEN KUMAR Dy. SOLICITOR GEN. OF INDIA

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The Court made the following : ORDER

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HON'BLE SRI JUSTICE^{C.V. BHASI(AR REDDY}

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WRIT PETITION No.368L^{of 2o24}

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ORDER:

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This Writ Petition is filed^{assailingthe action of respondent} No.3 in issuing summons^{bearing No. PMLA/SUMMON/HYZO/} 2024 12633 in File No.ECIRIHYZO /²⁶ I^{22 dated 07 'O2 '2024 to the} petitioner under Section 50^{(2) and (3) of Preventionof Money} Laundering Act, 2OO2^{(for short "PMLA Act"), calling upon him to} attend before him, despite^{the case in S.C.No.16of 2023 is pending} on the frle of learned^{MetropolitanSessionsJudge-cum-Special} court under PMLA Act,^{2OO2, at Nampatly, Hyderabad, as illegal'} arbitrary and violative^{of Article 14 and 21 of Constitutionof India} and in contravention^{with provisionsof PMLA Act, and for other} consequential reliefs.

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2 The brief facts of the^{casethal are necessary for disposal of} the writ petition are stated^under

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The pelitioner claims^{to be Director of M/s' Farmax India} Limited upto 23.11.2O11^{and thereafterhe resigned from his} directorship. It is stated that^{the petitioner herein is looking after} sales and marketing^{division of the company Basing on the FIR} No.664/2o13 dated^{29.10.2o13registcredon the file of Station}

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House Offi,:er, Dundigal police Station, the respondent No.3 herein registered ECIR No.IHy/ZO/26/2022 on 0S.OS.2022. The FIR initiaily registered was transferred to Crime Investigation Department cID) and thereafter, it was referred to the Enforcement Directorare (ED). Initially, complaint was filed brv one of the Director of the company arrd on the basis of said predicate offence, the respondent No.3 issued summons to the petitioners and other directors of the company. It is stated that Criminal petition No.lOO76/2O22 has been filed on the frle of this Court seeking to quash the proceedings in ECIR/LIyZO 126 /22 anrl this Court has granred inrerjm stay on L5.11.2022.In view of the stay granted by this Court, the proceedings against the Morthala Srinivasa Reddv/A 2 r;talled. while the matter stood thus, the responclent No.3 herein oroceeded to file a complaint under Sections 44 and 45 of PMLA Act lor the alleged offences under Sections 3 r,r rv Secrion 4 r/w 70 (l) and (2) of the Act and said complaint was taken on record as SC No. 16/2023 on Lhe file of learned Metrcrpolitan Sessions Jurlge-cum-Special Court under pMLA Act, Nampall_v, Hvderabad. It is also case of the petitioner, the res;pondenrs \r,hile invoking provisions of Section 37(A) (l) of For.eign Exchange Management Act, sezed certain properties vide orrCer dated 20. t r.2023

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The grievance of the^petitioner in^{the presentwrit petitionis} that while the matter is sub^{judice on the hle of Special Court} under PMLA Act in SC No.l6l2O23,^{the respondentNo.3 has} issued summons to the^{petitioner vide No.PMLA/SUMMON/HYZOI} 2024/2693 in File No.ECIRIHYZOI26/22^{dated O7'O2'2O24} invoking Section 5O(2) and⁽³⁾ of PMLA^{Act withoutseeking leave of} tJ:e Court and therefore, the said^{action on the part of respondents} amounts to violation of^{principles of naturaljustice and the} provisions of the PMLA Act.

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A counter affrdavit has^{been filed by the respondentNo'2,} wherein it is stated that^{petitioner was one o[ the Executive} Directors of M/s. Farmax India^{Limited and actively involvedin all} major decisions of the company. It^{is further stated that the} petitioner being a Director has met^{Accused No 3-Arun Panchariya} in Dubai to device the fraudulent^{scheme and was responsiblefor} the decisions made by the^{company'sboard and for passing} resolutions that facilitated the scam.^{It is furtherstated that the} petitioner and his brother, misused their^{positions, engaging} directly in criminal activities.^{It is statedthat the petitionerwas} arrayed as Accused No.2 in^E,CIR I^HYZO I²⁶ I^{2022 lt is further} stated that since money laundering^{is a continuous activityand} investigation against tJre^{petitioneris still ongoing, surmmons have}

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been issuecl to the petitioner based on some important information that has come to ttre notice of the Enforcement Directorate, to verify the facts which came to light during ongoing investigation. It is further sl-ated that Enforcement Directerate is having all powers akin to the Civil Court whenever attendance, of accused is necessary during the course of investigation to establish that an offence undr:r Section 3 of the pMLA Act has beer committed. It is further stated that mere frling of the complaint by the Enforcement Directorate ltefore the Special Court does not signity the conclusion of investigation and according to the Explanation (ii) of Section 44(1)(d) of PMLA Act, the complaint shall be deemed to include any subsequent :omplaint in respect of further investi.gatioo that may be conducterl to bring any further evidence, oral or documentary, againsl anv accused person involved in respeet of the offence, for which comp)aint has already been filed, whether named in the original comltlaint or not. It is stated that as per Section 65, the provisions of ()r. P.C apply insofar as they are not inconsistent with the provisions of PMLA to arrest, search and seizu.re, attachment, confiscation, etc.,. It is specifrc case of respondents that sub Section (3) o1-section 173 of Cr.p.C applies to the investigations bcing carried on under the provisions of pMLA Act and permission o[ Special C(]urt is only required to bring on recor.l, further

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evidence after further investigation and not for issuing of summons.

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Considered the submissions of Sri T. Bala Mohan Reddy, learned counsel for the petitioner, Mr.Gadi Praveen Kumar, learned Deputy Solicitor General of India, appearing for the respondent No. 1, Sri D. Narender Naik, learned Standing Counsel for Central Government appearing for the respondent Nos.2 and 3 and perused the record.

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The learned counsel for the petitioner has submitted that respondent No.3 acting on the offences alleged in Crime No.664/2013 on the frle of Station House Ofhcer, Dundigal Police Station, as predicate offences, registered ECIR/HYZO 126122 dated O5.O5.2O22. In the said complaint, the company M / s. Farmax India Private Limited was arrayed as accused. It is further submitted that the petitioner was issued summons under Section 5O(2) and (3) of the PMLA Act and in compliance with lhe same,^the petitioner attended enquiry on L7 .11.2022 and l8.l | .2022. Subsequently the respondent No.3, hled a complaint under Section 44 of PMLA Act before the Special Court under Section 43(1) of the Act and the said complaint was registered as SC No.16/2O23^on the hle of learned Metropolitan Sessions Judge-cum-Special^Court under PMLA Act, 2OO2 at Nampally, Hyderabad on 25.¹ 1.2023^1o

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the said case, the petitioner herein rvas arrayed zrs Accused No,2. The learned counsel submitted that once the case has been taken cognizance by the competent Court and the case in SC No.16/2O23 is pending for adjudication, the Enforeement Directorate is not competent to issue summons and the said action on the part of respondents amounts to violation of Article 20(31 of the Constitution of India. It is further submitted that Section 5O( ) of PMLA Act, is a deeming provision which makes the proceedings under Section 50(2) and (3) of pMLA Act tc, be a judicial proceedings, within the meaning of Sections 193 and 228 of IpC and non-cc,mpliance of the said provisions would attract consequences under Section 63 of pMLA Act. It is further contention o[ the learned counsel for the petitioner that under the provisions ot' Cr.P.C, the person has right to rernain silent and r','hereas unier [he provisions of PMLA, under Section 5O(3) and 63(2) of PML,{ Act, compel rhe person to state truth statement and produce the rlocumcnt as reqrrired. In the said circumstarices, issuance of impugned summons under Section S0(2) of pMLA Act to the accused alter frling of the complaint before ttLe Special Court would amourLt to testimonial confession and therefore, the same is violtiave o[ hrndamental rights of the Constitution. of India. The learned counsel referred to variolrs provisions of the Act and placed much relianc,: on the decision of the Honble Apex Court in Vijag

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Mqndatal Choudhary us. union o{ Indiat.It is further submitted that once the Special Court has taken cognizance in S.C.No.16/2023, respondent No.3 does not have the authority to issue summons under Section 50(2) or (3) of the pMLA Act for inquiry or investigation, compelling the making of a statement or the production of documents under threat of penal consequences, as this would violate fundamental rights, particularly those enshrined under Article 20(3) of the Constitution of India. In support of his submissions, the leamed counsel relied upon the decision in Tarsem La.l as. Dlrectorate oJ Enlorcement2

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Per contra, learned Standing Counsel for the Central Government appearing for e respohdent No.2 vehemently contended that the petitioner and his brother misusing their position engaged directly in criminal activilies, connected to the proceeds of the crime and the petitioner as an Executive Director, frequently met Accused No.3-Arun parrchariya to frame the fraudulent scheme and was responsible for the decisions taken by the company. It is further submitted that money laundering is a continuous activity and the investigation against the petitioner is still ongoing. The impugned summons were issued based on

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'^{2022 (6) scR 382} 'AIR^{zo24 sc 2152}

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important information that has come to the nodce of^the Enforcement Directorate. It is further submitted that^{the powers of} the Enforcernent Directorate is akin to the^{powersof the Civil} Court and 'rpon investigation if Enforcement Directorate^finds sufficient evidence to constitute offence under PMLA Act,^{they can} issue summons and mere filing of complaint^{before the Special} Court, does not signify the conclusion of the investigalion.^The learned counsel further submitted that Explanation^{(ii) to Section} 44(1)(d) of the PMLA Act confers power on Enforcement^Directorate to conduct fi-rrther investigation against any^{person who is already} a:rayed as accused and against whom a complaint hes^{been flled} and there is no bar under Article 2O(3) or^{any other provision of} law, creating; an embargo on the investigating agency to^proceed with further investigation or to issue summons. It^i:s also submitted by the learnt:d counsel that urlder Sectiorr 173(8)^{t3r-P.C,whichis} equally applir:able to the investigations carried on, under^the provisions of PMLA Act, shall not preclude further^{inves[igatio4 in} respect of arL offence, even after a report under^{sub-Section (2) of} Section 173^(lr. P.C has been forwarded to the Magistrate.^Itis further stated by the learned counsel that, in^{vie',vof the powers} conferred on the Enlorcement Directorale under^{Section 50 and} Section 44( l )(d) Explanation (ii), along with the^procedures prescribed -U[+er Sections 46 and 65 of the PMLA Act, andⁱⁿ

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terms of Section 173(8) of the Cr.p.C., the frling of a complaint by the Enforcement Directorate before the Specia-l Court does not bar the Enforcement Directorate from further investigating the offence. It is further contended that there is no specific provision mandating the investigating agenry to obtain permission from the Special Court to issue summons to the accused. In support of his submissions, the learned counsel placed reliance on following judgments:

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i) Vijag Madanla.l Choudhary and. others os. (Jnion of Indid and. others (supra),

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ii) State Through Central Bureau of Inoestigation vs. Hetnend.hra Redd.g qnd anothers

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iii)State of Bombag os. I(athi Kakt Oglud. and. otfiers4

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iu) State of And.hra pradesh as. A.S.petef

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To examine the above contentions, it is necessary to refer

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Section 44 of the PMLA Act, which reads as under:

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"Section 44. OfJences triable bg Speclo,l Courts

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(1) No-ttuilflstonding anAthing contained. in tle Code of Crimindl Procedure, 1973 (2 of 1974),-

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(a) on ollence punishable under section 4 and. ang sche.duted. offene connected to the ofJence under thnt sectio4 slrl:[ be triable ig 0rc Speciql Court constituted for *Le area ia i=ltich tle offence lus been committed:

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r 2023 scc ontine sC 515 o run tgot sc t8o8 5 lzooo; z scc te:

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-...* --=-

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Proutded tlnt^{theSpecialCourt,trying o} "tle^{vled olfence before tle} ii^.nn .nt of this Act,^{slwi antinue to try such scheduled} offence;^or,

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lbl a Soedal Coutt^{mall,upon a @mPlaintmade by cn authoitg} iirtn"i[ii i"^{thi.s aehili uiderthis Ait take cognizance of offence} ind.er section 3,^{Lutllloutiheacc'u-sedbeing committedto it for tial;}

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(c) if the court which^{ly,Ls takenagnizance of the sclleduled- offe-nceis} 'iii, tnan the Speaol Coua rtthtcn has taken cognizance of the oJ the iflerce of^{money-lau1denngunder.sub clause(b)' it} iiptiiit tnit, i" oi^{appUcltion bg the aitnotity authaisedto fkt o complaint} undir this Aci,-commit^{the caserelatiftg to the scheduledofknce' to tle} Special Court and^{the SpecialCourt sho.ll' oa receipt of such case} iroceed.^{to dealwith it from the stage at uhich it is commiled'}

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(d) a Speaal Court uhife trying^{the scheduledoffen7e} 21^{ltrcoffence of} 'ioii-torna.Ang shall hold iiol in acco'dance with the prouision's of ;i; d"i"^,4 Crii""t^{Ptocedure, 1973 ( 2 of 1974) as it apptiesto a} trtal beforc a^Couri of^Session.

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Eqtlanatic,n.-For^{the remoual of doubts' it is clartfiedthat -}

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(i) tle^{junsdictionoJ the SpecialCourt whiledealing with the offence} ioaurin*, ,4ct,^{duru,-g in-uesf.gatior.,enqliry or tial under thisAct'} shatl not be dependint^{upoiong ord'erspassed in respect of tle} scteduled offence, and^{the tno.lof bothsets of offencesbg the same} @uft sl:(zli' not be^{cot5ttuedas pint trial;}

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(ii) tLLe conlptatnt shall^{be deemedto include ang subsequetltcotnplaint} ii.",.p".1 o17"r1lar^{tnuestigoton that tnaA be corlductedta bringqnA} fitttir eutience. orol or^{doatmentary, against qng aa:usedpersot} 'iii"iil"i ii r""i"ct of the offence, fi wiich complaint^{lus alreadg} been filed, u'hether^{named n the oiginalcomplaint or nol'}

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(2) Nothing contained in^{this section shall be de'emedto alJect the} 'ip"aat poLert of the High Courl regardtng bail under section 439 of tie Co;e^q Cniinat^{Proceclure, lgi3 (2 oI 1974) ond.tlleHighCourt} such pouers^{including the pouer Ltnder clause(b) of sub'} lnig "r.rri"a iiition (ll of that^{sectiorras if tie rekrenceto 'Magtstrate-in thdt} i.ctton in"tia"t^{cilso a rekrenle b a Speciat Courtdestgnatedunder} section 43.'

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A carelul^{reading of explanation to Section44(1)(d) of the Act}

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implies that the Enforcement^{Directoratcis conferrect with the} power to include any subsequent^{complaintin respectof further}

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investigation that may^{be conducted to bring any furtherevidence'}

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oral or documentary against zrny accused person, for which a complaint has been already filed, whether named in the original complaint or not. In such a proceedings, a person cannot refuse to give an arswer on the plea that it might tend to subFct him to criminal prosecution at a later date, if he refused to furnish any evidence and to raise an objection that unless a permission is obtained, from the Special Court where the case is pending to issue summons under Section 5O (2) and (3) of the pMLA Act. Section 50 ofthe PMLA Act, reads as under:

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"5O. Powers of auttloities regardin4 sumrrtotTs, prod.uction of d.oanments and. to giue eutdence, etc.

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(1) Th.e Director shall, for th.e purposes of section 13, haue t e same pou)ers as are uested in a ciuil court under the Cod.e of Ciuil procedure, 19OB (5 of 1908) uthile trying a suit in respect of tne jotiiig maners, namelg: -

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(o) discouery and tnspectlon;

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(b) enJorcing the attendance of ang person, includirlg ang olficer of a reporting entitg q.rld examining him on oattq

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(c) compelling the production of records;

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(d) receiuing euidence on afftdauits;

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(e) issuing commissions for examination of witnesses and, doctui.ents; and

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A^angother matter whtch mag be prescribed..

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(2) The Director, Additional Director, Joint Director, Wutg Director or Assrbfan, [hrector shall haue power to summon an{ pJrson uhose attendance te constders necessary whether to giui iddence or to produce. ang records duing Lhe course of oiy inuestfgation o, proceeding under this Act.

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(3) All the persons so summoned shall be bound to attend in person or shall be throug_h authortsed agents, as such olficer ^aV aiiit,lia bourtd to stqte the tnnh upon ang subiect resfecting uthich eg are

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examined or tLake statements,^{and producesuch doanfients os maA} be reqtired.

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(4) Euery proceeding under sub-sections^{(2) and (3) shallbe deemedto} be a^{jui&atproceeding} uithin^{tle meaningof sectton193arul section} 228 of tte Indian Penal Code fis^{of 1860)-}

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(5) Subject to ang rules mqde in this behalf^{bg the Central} 'dremirent, ong ojfun, rekned to n sub-section (2) rnog intpound and retain in his atitod.g for^{such peiod, as h.e thinks} fit,^{anA records} produced before him in ang^{proceedingsunderthis Act:}

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Prouided t,hat an Assistdnt^{Directoror a DeputADirectorshqllnot-}

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(a) impound. ang records uithout recording^{his reosons prso doing;or}

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(b) retdin in his cttstodg anV such^records Jor^{a peiodexceedtng three} ,irrth", *ithout obtaining^{the previousapproual of the JointDirector'"}

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A conjoint reading of^{Sections44 and 50 of the PMLA Act} emphasizes the requirement to^{seek permissionfi-om the Special} Court only when the Enforcement^{Directorate wishes to introduce} additional ef idence based on^{further investigati':n, particularly} related to the^proceeds of crime^{Further,Section173(8) Cr'P'C} states that nothing in the^{Section shallbe deenred to preclude} further investigation in^{respectof an offence,after a report under} sub-section 1.2) has been^{forwarded to the Magistrate and, where} upon such investigation,^{the officerin charge of tfre policestation} obtains further evidence,^{oral or documentary,he sl-rallforward to} the Magistral-e a further^{reportor reports regarding such evidence} in the form^prescribed and^{the provisions of sub-s':ctions(2) to (6)} shall, as far^a.s may be,^{applyin relation to such rcport or reports} as they appllr in relation to a^{report forwardedunder sub-section}

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(2). The Hon'ble Apex Court in Hemend.hra Reddg,s case (supra), while dealing with the powers of investigation authorities for filing report and for conducting investigation under Section 173(g) Cr.P.C, in Para 83, surnmarized the law as under:

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"83. We mag summaise our final <:orrclusion as under:

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(i) Euen afier tle final reprt is laid before the Magistrate and is lcce-pted"^{it is permissiblefor *LeiruEstigating ogenL! to carry out} further^{investigation} in the case. In otter wordi, tttere is ta bar agatlst -conducting lurther inuestigation under Section 123(g) of the CrN after the f.nal report submitted under Section 173(2) of the CrpC hos been accepted.

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Yo!:o^{carryingout furtherinreshgation under Sectionj73(g) of} the CrPC it is not necessary that the order accepting the final reini slnuld be reuieued, recalled or Etashed.

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(iu) Rtnter inuestigation is merelg a continuation of the earlier inuestigation, hence it cannot be said thet the accused ane being subjected to investtgation truice ouer. Moreouer, inuestigation canrat be put at par uith prosecution and puntshmenl so as lo fall within tte dmbit of Clquse (2) of Atticte 20 oI the Constihttion The priniiple oj double jeopardg woutd, th-erefore, not be applicable to Iufther inuestigfltion.

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(q^{'frur9is nothing} in the CrPC to suggest that the court is obtiged to lear the accused uhtle const<leing an application 1or yurtner inuestigation under Section 173(B) of the CrpC

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It is also settled that the law does not mandate taking of

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prior permission from the Magistrate for carrying out further investigation, even after hling of charge sheet. In view of diflerence between further investigation and re-investigation, the investigation agencies under the PMLA Act, are allowed to carry out further investigation, even after tiling a report under Section 173(2) Cr.P.C and even after acceptance o[ the same by the Special Court.

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The offence under Section 3^{of the PMLA Act, which is connected} with the proceeds of crime, is a continuing^{activityzrnd it continues} till such time a person is directly^{or indirectlyenjoying the property} by its concealment. The por*er^{conferredto the Enforcement} Directorate t,) conduct further investigation/^{issqlng of summons} to trade proceeds of the crime^{arisingout of arr offenceunder} Section 3 of PMLA Act, cannot be^{restrictedupon liling of the} complaint on the hle of Special^{Court, since even after hling of the} complaint under Section 44 of the^{PMLA Act, the inveshgatron} agency is having power to^{frle any subsequentcomplaint, in respect} cf further investigation that^{may be conducted to bringany lurther} evidence against any accused.^{Simply because,the petitioneris} shown as an accused in the complaint,^{it doesnot take a^'aythe} power of irrvestigating authorities to further^{investigate the} complaint for lodging of subsequent^{complainta'nd issuariceof} slrmmons ur-rder Section 50⁽²⁾ and^{(3) ot the PMLAAct The} petitioner even after reeeipt of the summons^{can alwaysexercise} his right to remain silent in the^{event that any qurrstionsposed to} him might lead submissions of incriminating^{eviderrceoi testimony} against him which amounts to^{compulsion wouldattract Ardcle} 2O(3) of the Oonstitution of India.^{The HonbteApex Court in viiag} Madanlal's r:ase (supra) in Para 425^{and 428 obserwed as follon's:}

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'425.^{Indeed, sub} section (2) of Section 50 enables ttle Dtrector, Additiortal Director, Joint Director, Deputg Director or Assistant Arector to issue summon to anA person whose altendanre tE con-siders necpssary for glving evid.ence or to ptoduce ang records dtting the course of ang inuestigation or proceeding under this Act. We hanre alreadg higltlighted the utidth of eryression "prcceeding" in tlle earli.er part of this judgment and held that it applies to proceeding before tlrc Adjudicating AutloritV or the S-pecial Court, as the case mqA be. NevertlBless, sub-section (2) empotaers the authorised olficials to issue summon to ang person- We Iail to und.erstand as to hou Article 20(3) unuld ame into plag in respect of process oJ recording statement pursuanl to such summon u.thich is onlV Jor the purpose of oollecting Woflnation^oreuidence in respect of proeeding under this Act. Indeed, the person so summoned" is bourtd to attend. in person or through auttnised agent and to state truth upon ang stbject con@ming uthich he is being examined or is expected to make statenEnt an-d. produce documents as mag be required bg virtue of sab-section (3) of Section 50 of tlD 2OO2 Act. The citicism is esserfiiallg because of subsection {4) which prouides that euery Prcceeding^{under sub-sections(2)} and⁽³⁾ shaq be^deemed to be a judicial proceeding within the meantng oJ Sections 193 and 228 of tle IPC. Euen so, the fact remains thot Articte 2O(3) or for that matter Section 25 of tLe Euidence Act, ulould come into plag onlg uhen lhe person so sumrnned is an acansed oJ ang ofJence at the releuant time and i.s beiw compelled to be a u)itness aganst himself. This position is uell-establisled.. The Constitution Bench of this Court in M-P. Sharmo. 665 had deolt rtith a simiktr challenge wherein uarrants to obtoin doanm.ents required for inuestigatrcn uere issued bA tle Magistrate being violatiue of Article 2O(3) of the ConshtutioL This Court opined. that tle Wqrantee in Article 2O(3) is agairst "testimonial am4rul.sion" and is not limited to oral euidence- Not onIV that, tt gets trQgered if the person is compelled to be a witness again-st himself, tlhich mag not happen merelg because of issuance of summnn-s for giuing oral euidence or producing docllments. Further, to be q. witness is nothing more than to fumbh euidence and such euidence c<tn be fumished^{bg different modes.The Courtwent on to obserueas} Jollows:

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'Broodlg stated tfle guorantee tn qrticle 2O(3) is against testimonial ampuLsion"- It is suggested thot this is conrtned to the oral euidence of a perscrn standing his tial for an offence when celled to the utitnessstand.- We call see no reoson to confine the content of the constitutional Wararltee to this barelg literal i mpon. So to limit it uould be to rob the Warqntee of its substantial purpose ond to miss the substance for tLe sound qs stated in certatn Ameican decisiorrs. The plvase used in Article 2O(3) is^"to be a ruitness". A person can "be a uitttess" not merelg bg giuing oral evidence but o,lso by producing doanflEnts or making tntelligible gestures as in the case of a dumb uitness (See section 119 of the Euidence Act) ot the tike.^"To be a rrirness" Ib nothing more tFan to furnish evidence , and such evidence con be fumished through the ltps or by production of a thtng or of a document or in other modes. So far as production of documents is concerned, no doubt Section 139 of the Euidence Act sqAs tlnt^q person producing a doqtment on sumrnoas is not d uttness. But that sectron r's nBant to regulate the right oJ cross exami\ation. It is not a

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guide to tlle connotation of the uord "uitness", uhich must be understood in its natural sense, i.e., as refening to e person uho furnisles^{euidence.Indeed, everypositiue} volitionci act uhich fumishes^{euidenceis testimong,and testimonial compulsiofl connotes} coercion uhih proares the positiue wlitional evid.entiary acts of the perso\ a:; opposed to the negatiue attitud.e oJ silence or :;ubmission on his pan. )Vor is there anA reason to think thet the protection in respect of tlLe euidetce so preq4gLb q4fiLed to what transpires at tle tial in the court room- Tle phrase used in article 20(3) is \o be a witness" and. not tc' "appear as a uitness". h follot0s that tlle protection o.fforded to an accatsed in so far as it is related to the phrase 'to be a uitness" is not merely in resped of testimonial conlpulsion in tle r:ourt room but mag LUeLI ertend to campelled testimonA preuiouslg obtaioed from htm. It is avaiktble thereforc to a person again-st tulrcm a fornat accusation relating to tte commission oJ an offence h,'s been leuell.ed which in the nonnal course mag resttlt in proseantion- Whether it is aucrilable to oth.er persons in other srfudtlbns does not call for decision in thi-s case."

¶113

(er,lphasis supplied)

¶114

Again, the question cdne up for consideratton beJt're the eleuen Judges oJ this Court in Kathi Kalu Ogha4 uherein the Cour1. noted ttat the person on uhom sutman lws been serued, nust f,tlfl the character of an acatsed person at the tinV of making the statement. The Couft expounded tlas:

¶115

"(15) In order to bing tle evidence witdn the inhibitiotts oj cl.. (3) of Art. 20 ir is musl be stnutn not onlA that the person nakng the statement was an accused. at the tim.e he made it lnd tlet it had a mateial beaing on the criminalitg of the moker oJ the statemenL but also that lE uas compelled to neke that stateme'nL 'Compul,sion' in the cartext, must mean whqt in law is caLled 'duress'. In the AdionarA of English Law bg Earl Jotuitt, ciuress rs explained as follou.ts:

¶116

'Duress rs where a man is ampelled to do an act Lg rnFtry, beating or unlauful impisonment (sometimes colled t/rrress in strict sense) or bg the threat of being killed, suffenng sorne gneuotls boditg lunrl or Feing unlaufullg inpisoneci (somettmes called. menace, or duress per mines)- Duress also includes threatening, beating or impisonment of the wrfe, parent or child of a person-"

¶117

Further, mere issuance of summons to an accused is not

¶118

violative of .A.rticle 2O(3) of the Constitution of Indizr, and in prcvious stages, if an accusation has been made agaillst him u,hich might in the normal course result in his prosecutiorL. Article 20 (3)

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at that stage, would come into rescue of accused person when he is compelled to make t}re statement but not as a witness to disclose the evidence.

¶121

In Stc;te of Andhra Pradesh os. A.S.Peter (supra), the Honble Apex Court observed as follows:

¶122

"IndisputablA, the law does not mandqte taktng of pior pemisston from^{th.e Magistrate} Jor further^{inuestigation. Carging out of a} fwther inuestigation euen afier filing of the chnrgesheet is a statutory righl of tle police, A distirtction also err'sts between fufther intnstigation and re-inuestigation- Whereas re-inuestigation witLaut prior permrssion is necessarilg forbidd.e4 furtler inuestigqtion is not. "

¶123

In the instant case, the respondent No.3 has filed a complaint and the same was taken cognizance vide S.C.No.16/2023 on the lile of learned Metropolitan Sessions Judge-cum-Special Court under PMLA Act, 2OO2 at Nampally, Hyderabad and the petitioner herein was arrayed as accused in the said complaint. Section 44 of the PMLA Act does not prohibit filing of the subsequent complaint in respect of further investigation that may be conducted to bring further evidence against any accused for which a complaint has already been liled. In the case on hand, a complaint has been hled and the petitioner was arrayed as accused and the provision does not prohibit the investigation agency to proceed further investigation against the accused and it is not mandatory to obtain prior permission from the Court as the

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action on the part of the investigation authori\r amounts to further investigatiorr and it is not re-investigation. No doubt, if the investigatiorL agency wants to proceed for re-investigation into the case, a pri,cr permission is required but to substantiate the allegations in the complaint, the investigation agenc5, is always entitled to proceed with further investigation and said investigation does not arnount to re-investigation. The Hon'ble Apex Court in Hemend.hra. Reddg's case (supra), has clarified the difference between furt-her investigation and re-investigation and held that the plain rezrding of Section 173 of Cr.P.C, it is e'rident that even after completion of investigation under SecLion I73(2), the police has right for further investigation under sub-Section 8 of Section 173 Cr.P.C but not for fresh investigation or re-lnvestigation. In Kathi KaIu Oghad's case (supra), the Hon'tle Apex Court obsei-ued that mere asking by a police officer investigating a crime against cerLa,in individual to do certain thing is not compulsion u,ithin thc rneaning of Article 2O(3) of Constitulion of Indra. Hence the mere fact that the accused person when he made statement in question v,'as in police custody would not by itself, be the foundation or an inference of law that the accused was compelled to make statement. It is always open to the accused to demonstrate that, rvhile in police custody at the relevalt time, he was subjected to treatmen! that could lead to the inference that compulsion was,

( l

in fact, exercised. In other words, it is held that this will be a question of fact in each case, to be determined by the court based on the weighing of the facts and circumstances disclosed in the evidence before it. Any statements made by the accused at that relevant point in time, and whether such statements were made under compulsion or not, will always be subject to the consideration of the trial court.

¶131

In view of the foregoing discussion, this Court is of the opinion that issuance of summons to the petitioner under Section 50(2) and (3) of the pMLA Act, to give evidence or to produce any records during the course of any investigation or proceeding under the PMLA Act, cannot be said to have compelled him to be a witness against himself to attract Article 2O(3) of the Constitu[ion of India. Additionally, as the investigating agency has been conferred with the powers to proceed with further investigation to bring any further evidence against any person involved in respect of the offence for which the complaint has already been filed, and as no permission is required from the Special Court, there is no illegality or irregularigr warranting interference ro quash the summons issued by the respondents.

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