TaxTMI 
TaxTMI 
2023 (5) TMI 1030
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..... Mr. Arka Kumar Nag, Adv. For the Respondent no. 13 :- Mr. Sandip Kumar De, Adv. Mr. Abhijit Sarkar, Adv. For the WBBPE :- Mr. L. K. Gupta, Sr. Adv. Mr. Saikat Banerjee, Adv. Mr. Ratul Biswas, Adv. Mr. Kaushik Chowdhury, Adv. For the DPSC, Nadia :- Mr. Arindam Chattopadhyay, Adv. JUDGMENT AMRITA SINHA, J.:- CAN 3 has been filed by one Kuntal Ghosh ('KG' for short) for being impleaded as party in the pending writ proceeding claiming himself to be associated with student politics during his college days and an erstwhile member of the All India Trinamool Congress and also served as the Youth Wing Leader of the said political party. KG was arrested by ED on 21st January, 2023 in connection with the money laundering case and is still in custody in the Presidency Correctional Home, Alipore. A further application has been filed by KG being CAN 4 of 2023 praying for recalling a part/portion of the order directing investigation of the complaint of custodial torture lodged by KG. KG alleges that he is aggrieved by the said direction passed by this Court on 13th April, 2023 where the Court directed investigation to be conducted in connection with the complaint of custodial....
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.... or the interrogating agencies were pressurizing one of the accused who is in custody i.e. KG in connection with the recruitment scam to disclose his name. The Court observed that KG filed a complaint against the interrogating officers before the CBI Court and before the Hastings police station on 31st March and 1st April 2023 respectively. The Court thought it fit to get the matter enquired as to whether KG took the cue from the public speech made by AB, especially because the complaint was lodged by KG soon after the speech was made by AB. It has been submitted that, the Court in the impugned order came to a definite conclusion that the investigating officers were terrorized by the complaint which was absolutely unwarranted. The Court directed that the investigating officers should not keep the speech of AB outside the investigation of CBI and, if necessary, ED. The applicants are aggrieved by the same. It has been argued that the application on which the aforesaid direction was passed to investigate the speech of AB did not contain any material in connection with either of the applicants and, accordingly, such direction ought not to have been passed. The applicants submit th....
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....order of the Chief Justice. The puisne judges can only do that work as is allotted to him by the Chief Justice or under His direction and the Chief Justice alone has the prerogative to constitute Benches of the Court and allocate cases to the Benches so constituted. The sheet anchor of the application for recalling is the allegation of bias. It has been submitted that the learned Judge was negatively biased against AB. The same is clearly evident from an interview given by the Hon'ble Judge, in a private television channel, where the Hon'ble Judge expressed his intention to take strict action against AB allegedly for passing certain comments in connection with the Calcutta High Court. A transcript of the interview given by the Hon'ble Judge in vernacular in support of the allegation of bias has been placed before this Bench. It has been submitted that the action of the Hon'ble Judge is not in tune with the Bangalore Principles of Judicial Conduct of 2002 setting standards for ethical conduct of judges. The observation made in the order dated 13th April, 2023 reeks of mala fide where the Hon'ble Judge transgressed the self imposed restriction while exercising writ jurisdiction. T....
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.... to travel beyond its pleadings. On the same issue reliance has been further placed on the judgment delivered by the Hon'ble Supreme Court in the matter of Ratanlal @ Babulal Chunilal Samsuka vs. Sundarabai Govardhandas Samsuka (dead) through legal representatives & Ors. reported in (2018) 11 SCC 119 wherein the Court held that any amount of evidence or proof adduced without there being proper pleading is of no consequence and will not come to the rescue of the parties. On behalf of KG it has been highlighted that the writ court ought not to have gone into forensic investigation/post mortem of the complaint of custodial torture lodged before the police station. It has been argued that once complaint of custodial torture is lodged, the police is duty bound to take steps in response to the same. The observation of the Court that there is a sinister design to make allegations against the investigating officers of different scams to terrorize the officers has practically sealed the fate of KG to avail the benefit of obtaining bail. In view of the aforesaid observation of the Court, KG will not be in a position to seek release on bail. Learned advocate representing KG relies upon th....
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.... It has been submitted that the Special Leave Petitions were heard for three days at a stretch and after hearing the submissions of all the parties the Hon'ble Supreme Court was pleased not to interfere with the order appealed against. It has been contended that the liberty which was granted by the Hon'ble Supreme Court to deal with applications, relates to any issue which is prospective in nature and any cause of action which arises subsequent to the order passed by the Hon'ble Supreme Court. The Hon'ble Supreme Court did not grant any liberty to the applicants to reargue the entire matter before the assignee judge. The questions of law and the grounds of appeal urged in the Special Leave Petitions have been placed before this Bench. The issue of violation of the principles of natural justice, order passed upon personal knowledge of the Hon'ble Judge, order passed in the absence of proper pleadings and all other issues raised in the application for recalling, intervention and addition of party were all available and argued before the Hon'ble Supreme Court. Had the Hon'ble Supreme Court intended to grant any liberty to the applicants to seek recall of the order complained of, th....
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.... to the judgment delivered by the Hon'ble Supreme Court in the matter of State of Haryana vs. Bhajan Lal reported in (1992) Supp (1) SCC 395 wherein the Court held that nomenclature under which petition is filed is not quite relevant and that does not debar the Court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which is mandatory. As the main matter was pending consideration before the Hon'ble Judge monitoring the investigation, the department immediately rushed to the said Court for relief so that the investigation could continue unhindered. Learned advocate representing CBI submits that AB has admitted in the application that he did deliver the speech on 29th March, 2023. It is not the case of AB that the speech in question was not delivered by him. AB is suffering from a perceived paranoia in facing the investigation. AB being a Member of the Parliament, ought to cooperate with the investigating officer to unravel the persons involved in the scam. Acting on the direction passed by the Hon'ble Court, notice under Section 160 CrPC was issued to AB on 16th April, 2023 with a direction to appear before the CBI on 18th ....
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....and file comprehensive report before the Court. In support of the submission that the applications filed by the applicants are liable to be dismissed with exemplary cost for wasting the valuable time of the Court reliance has been placed on the judgment delivered by this Court in the matter of Bharatiya Janata Party & Ors. -vs- The State of West Bengal & Ors. reported in 2016 (1) CLJ (Cal) 556 : MANU/WB/1365/2015 where the Hon'ble Court was pleased to dismiss the writ petition with costs. Learned advocates representing the writ petitioners, ED and CBI pray for dismissal of the applications with exemplary costs. Learned advocate representing the State submits that the Hon'ble Judge ought not to have entertained the prayer of the ED and further not to have restrained the police from lodging any FIR against the ED. It has been submitted that the police is duty bound to act on the complaint of custodial torture lodged by an undertrial. It has further been argued that ED, not being a party in the writ proceeding, the application of a third party ought not to have been entertained. I have heard and considered the rival submissions made on behalf of all the parties. This Bench has bee....
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....sions made by the representative of ED. The Hon'ble Judge took note of the public meeting held by AB on 29th March, 2023. The excerpt of the speech of AB in the said public meeting was brought to the notice of the Court. The excerpts of the public speech made by AB on 29th March, 2023, the press statement by KG on 30th March, 2023, complaint made by KG on 31st March, 2023 and 1st April, 2023 have been placed before this Bench, word by word. The name of AB has been repeatedly mentioned therein. The close proximity of the dates of the above events raised doubt in the mind of the Court with regard to the genuineness of the allegation made by KG in the complaint. The inference drawn by the Hon'ble Judge may or may not have been correct. It is for the investigating agencies to take note of the same and proceed in the matter in accordance with law. The offence which ED is dealing with is under the Prevention of Money Laundering Act, 2002 and the predicate offence under the Prevention of Corruption Act, 1988 and the Indian Penal Code is being investigated by CBI. It appears from records that the investigation started a couple of months back and the same has proceeded to a fair extent. S....
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....upra). The same principle was reiterated by this Court in the judgment dated 28th July, 2022 passed in MAT 922 of 2022 in Kushal Agarwal vs Mahindra Kumar Jain & Ors. wherein the Court held that the accused have no say as regards the manner and method of investigation and has no participation as a matter of right. In Bharat Singh (supra) the Court was pleased to point out that there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in a counter affidavit not only the facts but also the evidence in proof of such fact have to be pleaded and annexed to it. In the instant case the investigation conducted by the agencies is criminal in nature as held by the Hon'ble Supreme Court in Ram Kishan Fauji -vs- State of Haryana & Ors. reported in (2017) 5 SCC 533. ED in its application clearly mentioned about the involvement of politically exposed persons who are trying to lodge complaints against the officers of ED in a desperate attempt to thwart the investigation process. The learned couns....
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....son in the society and a law abiding citizen of India. Being a Member of the Parliament the applicant ought to know that all citizens of the country are required to cooperate with any investigation conducted by the competent officers in accordance with law. It can be that the applicant, holding such high and responsible post, may be in the know of information which may be required and helpful for proceeding further with the scam case that is being investigated by the investigating officers. The principle of adherence to natural justice thereby meaning that opportunity of hearing is to be given to a person prior to summoning him to give evidence is not the same in all branches of law. The said principle has a different connotation in a proceeding involving civil consequences but has an absolute contrary implication in a criminal proceeding. Application of the principle of natural justice in connection with PMLA and the predicate offences is practically nil. Summoning a person for interrogation in connection with a public scam of such humungous magnitude does not ipso facto imply that coercive step will be taken against him; neither does it suggest that he is an accused or a suspect....
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....pplication for intervention and recalling has been filed by third parties not connected with the relief sought for in the writ petition. The applicants may be required for investigation purpose, but that does not mean that their presence will be necessary for adjudicating the writ proceeding. Intervention/addition of the applicants will in no way aid in disposal of the writ petition. The applicants can always put forward their defence and avail remedies in law, if at all, they are aggrieved by any act of the investigating agencies. PMLA is a special Act formulated to prevent money laundering and to provide for confiscation of property derived from, or involved in, money laundering and for matters connected therewith or incidental thereto. Under the Act, investigation includes all the proceedings conducted by the Director or by any authority authorized by the Central Government under the Act for collection of evidence. The adjudicating authorities under the Act consist of persons having experience in the field of law, administration, finance or accountancy. The members of the adjudicating authority have wide power to implement the provisions of the Act. The authority has the power ....
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....matter in Special Leave Petition filed by the State of West Bengal in Petition for Special Leave to Appeal (C) No. 8706/2023. On a perusal of the order dated 28th April, 2023 passed by the Hon'ble Supreme Court in Special Leave Petition (Civil) Diary Nos. 15883/2023 and 15883/2023 it is plainly clear that no leave was granted by the Hon'ble Supreme Court to re-agitate or reopen the issue all over again. The moment the SLP stood disposed without any direction upon the High Court to revisit the issue which was already there before the Hon'ble Supreme Court, the order appealed against stood affirmed and the same becomes a closed chapter. Any issue subsequent to the order passed by the Hon'ble Supreme Court can be brought to the knowledge of the High Court by filing interlocutory application. Only to dispel the doubt of bias of the Hon'ble Judge, the Hon'ble Supreme Court was pleased to direct reassignment of the matter. This Bench is of the opinion that the applications for recalling will be barred by the principles of constructive res judicata. 'All applications' as indicated in the order of the Hon'ble Supreme Court has to be necessarily interpreted as applications on issues not d....
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....rd to the legality or correctness of the said complaint. The same will be taken note of at a subsequent stage, if occasion so arises. The act of the applicants in pressing the instant applications raises doubt in the mind of the Court that the same have been filed with mala fide intention to deter the investigating officers to follow through the process of investigation which has already opened up a box of worms with more to follow suit. The idea is to delay the entire process to the extent possible so that the real culprits can remain shielded. In fact, on account of filing the applications neither the ED nor the CBI appear to have proceeded any further. The notice under 160 CrPC issued in favour of AB is yet to be acted upon even though there is no order restraining the investigating authority to proceed with the same. The applicants have indeed been successful in interrupting the investigation to a great extent. It is high time that the investigation process be brought back to the right track and proceeded in the right earnest so that the same reaches its logical conclusion at the earliest. If the trend to delay the main investigation and intimidate the investigating officers....