Patna High Court
Rishu ShreeversusThe Union of India through its Secretary, Legislative Department, Ministry of Law and Justice
- Decided
- Disposal
- DISMISSED
- Bench
- ARUN KUMAR JHA
Holding
The Court held that ECIRs are internal documents not subject to quashing under Article 226, that a second ECIR does not violate the law as further investigation is permissible, and that statements under Section 50 PMLA are not protected by Article 20(3) absent formal arrest, thus dismissing the petition.
Summary
The petitioner, Rishu Shree, challenged the Directorate of Enforcement's (ED) registration of Enforcement Case Information Report (ECIR) No.13/2025 and related summons, alleging that the investigation violated Article 20(3) of the Constitution by forcing self‑incriminating statements and amounted to a de novo prosecution of matters already investigated under ECIR‑4/2024. The petitioner also sought quashing of statements recorded under Section 50 of the Prevention of Money‑Laundering Act (PMLA) and of the summons issued under the same provision. The High Court examined whether ECIRs are statutory documents amenable to quashing, whether a second ECIR constitutes an impermissible parallel investigation, and whether the petitioner was entitled to constitutional protection against self‑incrimination at the stage of statement‑taking. Relying on Supreme Court precedents that ECIRs are internal documents not subject to Article 226 writs, that further investigation under Section 173(8) CrPC is permissible without a fresh FIR, and that statements taken under Section 50 PMLA are not protected by Article 20(3) unless the person is formally arrested, the Court held the challenges untenable. Consequently, the petition for quashing the ECIR, statements, and summons was dismissed.
Issues considered
- The nature and quashability of an ECIR under Article 226 writ jurisdiction
- Whether ECIR‑13 constitutes an impermissible de novo or parallel investigation of the same facts covered by ECIR‑4
- Whether statements recorded under Section 50 of the PMLA are protected by Article 20(3) and Section 164(4) CrPC
- Whether the issuance of summons under Section 50 PMLA infringes constitutional rights
- Whether a second FIR and subsequent ECIR can be maintained when based on the same factual matrix
Legislation cited
- Bharatiya Nyayik Sanhita, 2023 — s. 318(4), 338, 340(2), 61
- Criminal Procedure Code — s. 164(4), 173(8)
- Indian Penal Code — s. 193, 20(3), 228
- Information Technology Act, 2000 — s. 67
- Official Secrets Act, 1923 — s. 15, 3(2), 6(2)
- Prevention of Corruption Act, 1988 — s. 10, 12, 7A, 8, 9
- Prevention of Money Laundering Act, 2002 — s. 17, 2(u), 3, 44, 50, 63, 65
Subjects
- PMLA
- ECIR
- self‑incrimination
- Article 20(3)
- de novo investigation
- parallel investigation
- summons
- money laundering
- FIR
- quashing
- writ jurisdiction
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.2942 of 2025
Arising Out of PS. Case No.-13 Year-2025 Thana- E.C.I.R (GOVERNMENT OFFICIAL)
District- Patna
======================================================
Rishu Shree S/O Sh. Vinod Kumar Sinha R/O- 5A, Kamtaramsakhi Enclave,
Mithapur Khagaul Road, Beside Dayanand Boys School, Mithapur Patna,
P.S.- Jakkanpur, District- Patna, Bihar.
... ... Petitioner
Versus
1. The Union of India through its Secretary, Legislative Department, Ministry
of Law and Justice 4th floor, A- Wing, Shashtri Bhawan, New Delhi-
110001.
2. The Directorate of Enforcement, through its Assistant Director Government
of India, Patna Zonal Office, 1st Floor, Chandpura Place, Bank Road, Patna,
Bihar- 800001.
3. Aman Saxena (Deputy Director) R/O The Directorate of Enforcement,
Government of India, Patna Zonal Office, 1st Floor, Chandpura Place, Bank
Road, Patna, Bihar- 800001.
4. Bhoopesh (Assistant Director) R/O the Directorate of Enforcement,
Government of India, Patna Zonal Office, 1st Floor, Chandpura Place, Bank
Road, Patna, Bihar- 800001.
5. The State of Bihar through the Superintendent of Police, Special Vigilance
Unit, Patna, Bihar. Office at- Vigilance Department, 4th Floor, Suchana
Bhawan, Bailey Road, Patna- 800015, Bihar.
... ... Respondents
======================================================
Appearance :
For the Petitioner/s : Ms. Nandita Rao, Sr. Advocate
Mr. Arshdeep Singh Khurana, Advocate
Mr. Akhand Pratap Singh, Advocate
Mr. Kumaresh Singh, Advocate
Mr. Ujjwal Raj, Advocate
Ms. Manavi Tyagi, Advocate
Mr. Divyodit, Advocate
Ms. Shruti, Advocate
Ms. Tannavi Sharma, Advocate
Mr. Sidak Singh Anand, Advocate
Ms. Khushboo Jain, Advocate
Mr. Sahil Kumar, Advocate
Mr. Anirvan Choudhuri, Advocate
Mr. Jyoti Prakash, Advocate
For the ED : Mr. Zoheb Hossain, Special Counsel, ED
Mr. Prabhat Kumar Singh, Retainer Counsel, ED
Mr. Pranjal Tripathi, Advocate
Mr. Raghav Kumar, Advocate
Mr. Vishal Kumar Singh, Advocate
For the Vigilance : Mr. Arvind Kumar, Special P.P.
======================================================
Patna High Court CR. WJC No.2942 of 2025 dt.18-05-2026
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CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
CAV JUDGMENT
Date :18-05-2026
Originally, the present writ petition has been filed by
the petitioner seeking following relief(s):-
“I. For issuance of writ/order/direction
including writ in the nature of certiorari for
quashing the entire criminal prosecution
arising out of ECIR/PTZO/13/2025 being
violative of Article 20(3) of the Constitution of
India.
II. For issuance of Writ/order/direction
including writ in the nature of mandamus
refraining the respondent-Directorate of
Enforcement, by itself or through its officers or
agents, from undertaking any further coercive
action, including issuance of any fresh
summons, any fresh search, seizure or
investigation against the petitioner or its
officers/employees based on or arising out of
ECIR/PTZO/13/2025 and ECIR/PTZO/4/2024.
III. For any other relief/reliefs which the
petitioner is found entitled to on the facts and
in the circumstances of the instant case.”
2. Subsequently, I.A. No. 01 of 2025 was filed on
behalf of the petitioner for adding certain relief(s) and vide
order dated 11.12.2025, this Court allowed the following
relief(s) to be added after Para-1(III) while rejecting relief no.
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IV:
“V. Issue a Writ of Mandamus, or any
other appropriate Writ, Order or Direction.
thereby quashing all the statements of
Petitioner dated 16.07.2024, 18.07.2024,
18.09.2024, 20.09.2024, 21.09.2024 and
01.10.2024 recorded by the Respondent/ED as
being violative of Article 20 of the Constitution
of India.
VI. Issue a Writ of Mandamus, or any
other appropriate Writ, Order or Direction,
thereby quashing the summons dated
09.09.2025, 15.09.2025 issued to the
Petitioner by Respondent no. 2/ ED in
ECIR/PTZO/13/2025 being violative of Article
14 of Constitution of India.
The inadvertent mention of writ
application under Article 32 in the synopsis
portion be also allowed to be corrected as writ
application under Article 226 of the
constitution of India and the same may be read
accordingly.”
3. It is pertinent to taken note here that against the
aforesaid order dated 11.12.2025 passed in IA No. 1/2025 in
Criminal Writ Jurisdiction Case No.2942/2025 whereby this
Court, apart from allowing aforesaid amendments, rejected the
amendment sought to be added as relief No. (IV), in which
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relief was sought for declaring Sections 50 and 63 of the
Prevention of Money Laundering Act, 2002 as ultra vires to the
Constitution of India, the petitioner preferred Special Leave to
Appeal (Crl.) No(s). 20563/2025 before the Hon’ble Supreme
Court. Thereupon, Hon’ble Supreme Court, vide order dated
19.12.2025, granted liberty to the petitioner to move an
intervention application, on the question of validity of Sections
50 and 63 of the Prevention of Money Laundering Act, 2002
(For short ‘the PMLA) in batch of matters connected to Writ
Petition (Criminal) No.132 of 2025, which has been pending
consideration before the Hon’ble Supreme Court and the
petitioner has been granted liberty to raise all the contentions on
the constitutionality of the aforesaid provisions.
4. Brief facts of the present case are that on
09.01.2023, an FIR bearing Rupaspur P.S. Case No. 18 of 2023
(hereinafter referred to as ‘the First FIR’) came to be registered
at P.S. Rupaspur, Patna against three persons, namely Gulab
Yadav, Sanjeev Hans and Lalit, by the complainant/informant,
Gayatri Kumari, with allegation of multiple instances of rape
and gang rape by the accused Gulab Yadav and Sanjeev Hans.
The informant lodged a complaint petition before the court of
learned Additional Chief Judicial Magistrate, Danapur, Patna
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under Sections 323, 346, 376, 376D, 420, 313, 120B, 504 and
506,34 of the Indian Penal Code, 1960 (hereinafter referred to
as ‘IPC’) and Section 67 of the Information Technology Act,
2000 (hereinafter referred to as ‘IT Act’), which was sent to the
SHO, Rupaspur for registration of the FIR and consequently,
the aforementioned FIR came to be registered. It appears that on
the basis of the aforementioned FIR, treating Sections 420 and
120B of IPC therein as the scheduled offences under the
PMLA, respondent-ED registered Enforcement Case
Information Report in the Patna Zonal Office of Directorate of
Enforcement bearing No. ECIR/PTZO/20/4/2024 (hereinafter
referred to as ‘ECIR-4’) Dated 14.03.2024, copy of which has
not been supplied to the petitioner. The petitioner claims that he
has not been named as an accused or suspect in the said report
so far as his knowledge goes.
On 16.07.2024, respondent-ED conducted search and
seizure operations under Section 17 of the PMLA at various
premises, including the office premises of M/S Reliable Infra
Services Private Limited (a company in which the petitioner is
said to be a Director) wherefrom certain digital devices and
documents were seized. The respondent-ED also conducted
search and seizure operations at the residential premises of the
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petitioner herein, wherefrom two mobile phones and multiple
sale deeds were seized. The statement of the petitioner was also
recorded under Section 17 of the PMLA by respondent-ED and
the petitioner claims he was forced to affix his signatures on
these statements, even though same contained factually
incorrect assertions. It transpires from the writ petition that
pursuant to receipt of summons issued under Section 50 of the
PMLA to the petitioner by the respondent-ED in ECIR-4, the
statement of the petitioner was recorded by the respondent-ED
on 16.07.2024, 18.07.2024, 18.09.2024, 20.09.2024, 21.09.2024
and 01.10.2024, respectively. Thereafter, on the basis of these
statements, respondent-ED has alleged involvement of the
petitioner in other cognizable offences relating to manipulation
of Government Tenders in the State of Bihar. Meanwhile, on
20.08.2024, a letter was sent by the respondent-ED under
Section 66(2) of the PMLA to Special Vigilance Unit, Bihar
resulting in registration of FIR No. 05 of 2024 dated 14.09.2024
( hereinafter referred to as ‘the Second FIR’) under Sections 61,
318(4) of Bharatiya Nyayik Sanhita, 2023 (BNS) r/w Section 7,
12, 13(1)(a) r/w Section 13(1)(b) of the Prevention of
Corruption Act, 1988 (hereinafter referred to as ‘the PC Act’).
This FIR was relating to alleged transaction of Rs. 20 lakh
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transferred by M/S Reliable Infra Services Private Limited to
one Sunil Kumar Sinha.
Thereafter, on 14.02.2025, the respondent-ED
addressed another letter to Additional Director General of
Police, Economic Offences Unit, Government of Bihar, thereby
sharing information under Section 66(2) of the PMLA about the
alleged commission of cognizable offences. The allegations,
inter alia, related to payment of Rs. 90 lakhs by Sanjeev Hans
to Gayatri Kumari. It appears Rs. 20 lakh was transferred by
M/S Reliable Infra Services Private Limited to one Sunil Kumar
Sinha who further transferred the money to Gayatri Kumari.
The case made out by respondent-ED is that the petitioner
through his entities has been executing government contract in
the Water Resources Department of Government of Bihar
wherein, during the relevant period, Sanjeev Hans had been
working as its Secretary and, therefore, it was alleged that
transfer of Rs. 20 lakh was nothing but bribe money meant for
Sanjeev Hans. It is further alleged by respondent-ED that
petitioner was involved in connivance with senior Bihar
Government Officials in manipulating and rigging government
tenders across multiple departments. Respondent-ED has
further alleged that the petitioner had stated in his statement
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under Section 50 of the PMLA that he had paid commissions
ranging from 2-3.5 percent of the bill amounts to the officials of
the departments where his associated entities had been
executing contracts as contractors or sub-contractors. It has
further been alleged that petitioner, using his connections with
senior officers and employees of such departments, gets
information crucial for various tenders in advance and based on
it he secures tenders for himself and for the entities of his
network and the petitioner also manipulates the tenders by
getting incorporated various specifications which are favourable
to his entities. By this modus operandi, when the tenders are
floated by the departments, the company which approaches the
petitioner, presents itself as qualified and manages to secure
tenders. For doing these favours, the petitioner used to receive
8-10 percent of the contract value as commission and
substantial part of it was used to be shared with senior
officer/officials of the concerned department. It has further been
alleged that to make the whole process appear fair and
transparent, the petitioner engages his associates as sub-
contractors for tender awarded entities and raises periodic
inflated bills on them, so that commission and bribe money get
mixed with routine business transactions. The petitioner has
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submitted in writ petition that the fundamental basis of premise
of respondent-ED for its allegations are the statements of the
petitioner recorded under Section 17 of the PMLA in
connection ECIR-4 with specific reference to his statement
dated 21.09.2024 termed as admission by respondent-ED.
Thereafter, on 30.04.2025, pursuant to the aforementioned letter
under Section 66(2) of the PMLA and on the basis thereof, the
respondent no. 3 registered the FIR bearing No. 05 of 2025 of
PS Special Vigilance Unit (hereinafter referred to as ‘the Third
FIR’) against the petitioner, Sanjeev Hans, Santosh Kumar,
Pawan Kumar, other unknown Government Officials of Bihar
Government and other unknown persons for the alleged
offences under Section 7A r/w Sections 8, 9, 10 and 12 of the
PC Act, Sections 3(2) r/w Section 6(2) r/w 3 of the Official
Secrets Act, 1923 and Section 61 r/w Section 318(4) r/w
Section 338 r/w Section 340(2) of BNS. The petitioner claims
the contents of the Second FIR show that the entire case of the
respondent-Agency starts from the statement of the petitioner
recorded under Section 50 of the PMLA in ECIR-4 and
specifically the statement dated 21.09.2024 and the petitioner
further claims that petitioner was forced to record these
statements by respondent-ED and the petitioner was coerced to
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put his signature on the statements even though the same
contained factually incorrect averments.
It further transpires from the record that on
22.05.2025, respondent-ED registered ECIR/PTZO/13/2025
(hereinafter referred to as ‘ECIR-13’) on the strength of
scheduled offences alleged in the Second FIR. On 09.09.2025
and 16.09.2025, the respondent-ED issued summons under
Section 50 of the PMLA to the petitioner in ECIR-13 for
appearing on 16.09.2025 and 22.09.2025, respectively.
However, the petitioner requested for extension of time to
appear before respondent-ED due to his ill health. Thereafter,
respondent-ED issued another summon under Section 50 of the
PMLA on 23.09.2025 to the petitioner for his appearance on
07.07.2025. Harbouring apprehension that respondent-ED
would take coercive measures against the petitioner to force
him to give self-incriminating statement, the petitioner filed a
criminal writ before the Hon’ble Supreme Court bearing Writ
Petition (Criminal) No. 411 of 2025, however, the Hon’ble
Supreme Court declined to entertain the writ petition, though it
relegated the petitioner to raise all his contentions before
appropriate forum and, accordingly, disposed of the writ
petition vide order dated 17.10.2025. Aggrieved by the
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institution of ECIR-13 and proceeding arising therefrom and
also proceeding arising from ECIR-4, the petitioner has
approached this Court.
5. Learned senior counsel, Ms Nandita Rao,
appearing on behalf of the petitioner, at the outset, submitted
that the impugned ECIR, i.e., ECIR-13 is unsustainable in law
as it is a second, parallel and derivative ECIR. Ms Rao further
submitted that ECIR-13 arises out of the same transaction
which was already covered under ECIR-4. Therefore,
proceeding in ECIR-13 is not an independent proceeding and
ECIR-13 is nothing but reinvestigation of what has been
investigated by the respondent-ED in ECIR-4. Ms Rao further
submitted that during the pendency of the present writ petition,
it has come to the knowledge of the petitioner that an addendum
dated 20.09.2024 was added by the respondent-ED in ECIR-4
by way of which, FIR No. 05 of 2024 was subsumed in ECIR-4
and the scope of investigation was expanded to corruption and
bribery. Thereafter, a supplementary prosecution complaint was
filed by respondent-ED on 15.12.2025 in ECIR-4. Ms Rao
stressed that the statements of the petitioner have been recorded
in ECIR-4 under force and coercion and thereafter, the same has
been used by the respondent-ED to seek registration of new
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FIRs and ECIR-13 using these self-incriminating statements.
This act of the respondent-ED is in violation of law laid down
by the Hon’ble Supreme Court in the case of Prem Prakash Vs.
Union of India through Directorate of Enforcement, (2024) 9
SCC 787. Thus, Ms Rao submitted that the very foundation of
second FIR and consequential proceedings arising therefrom are
untenable in terms of settled law that if the initial action is not
in consonance with law, all subsequent and consequential
proceeding would fail as illegality strikes at the root of the
consequential proceeding. On this aspect, Ms Rao relied on the
case of State of Punjab Vs. Davinder Pal Singh Bhullar,
(2011) 14 SCC 770. Therefore, the very basis of proceedings
against the petitioner in ECIR-13 is illegal as the petitioner is
being summoned on the basis of his self-incriminating
statement recorded under Section 50 of PMLA. Ms Rao drew
attention of this Court to the allegations levelled in the First
FIR, the Second FIR and ECIR-4 and submitted that once an
investigation has already been conducted with regard to same
transaction under ECIR-4, Second FIR being already subsumed
into ECIR-4 by way of addendum dated 20.09.2024, and filing
of a supplementary prosecution complaint arraigning the
petitioner as an accused, there exists no basis to initiate a
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parallel investigation by way of Second ECIR.
6. Ms Rao next submitted that in the aforesaid
circumstances, the registration of impugned ECIR is ex facie
barred in law. She pointed that Section 173(8) of the Code of
Criminal Procedure, 1973 (hereinafter referred to as ‘the CrPC’)
contemplates only further investigation in respect of the same
transaction and does not prescribe a fresh, parallel, or de novo
investigation on an identical factual foundation. The Hon'ble
Supreme Court in the case of Vinay Tyagi Vs. Irshad Ali
(2013) 5 SCC 762, has held that a de novo investigation cannot
be undertaken by the investigating agency except with the
express permission of the competent superior authority or the
Court. She further submitted that statutory scheme does not
permit successive investigation to be initiated at the discretion
of the investigating agency. Thus, Ms Rao reiterated that the
registration of ECIR-13, being in the nature of a de novo
investigation on the same set of facts, is unsustainable. She
further submitted that this legal position has been reaffirmed by
the Hon’ble Supreme Court in the case of Pramod Kumar Vs.
State of UP, 2026 INSC 120, wherein it has been categorically
held that where the investigating agency forms an opinion that
further investigation is necessary, it is binding upon the agency
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to move an appropriate application before the Magistrate/Court,
and that further investigation cannot be undertaken without
prior leave of the Magistrate/Court. Ms Rao further submitted
that ECIR-13 is barred under Section 173(8) CrPC read with
Section 44 of the PMLA. A conjoint reading of the explanation
(ii) to Section 44 of the PMLA read with Section 173(8) of the
CrPC makes it clear that though further investigation is
permissible, a fresh or parallel investigation on the same set of
facts is impermissible. Once a complaint has been filed, the
investigating agency cannot circumvent the statutory scheme by
initiating a de novo proceeding under a new ECIR on identical
allegations. Thus, Ms Rao submitted that ECIR-13 is nothing
but a repetition of ECIR-4 on the very same facts and is liable
to be held as unsustainable in law.
7. Ms Rao submitted that the second limb of her
argument challenging the ECIR-13 is based on the fact that
scheduled offence of ECIR-13 is the Second FIR which is not
tenable in law. She submitted that two communications of the
respondent-ED under Section 66(2) of the PMLA, vide letter
dated 20.08.2024 and 14.02.2025, have raised overlapping
allegations with the First FIR. She further submitted that it is
also pertinent to take note that the First FIR has since been
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quashed qua Sanjeev Hans vide order dated 06.08.2024 passed
by a learned Co-ordinate Bench of this Court in Criminal Writ
Jurisdiction No. 310 of 2023 which was not interfered with by
the Hon’ble Supreme Court vide its order dated 07.10.2025
passed in Special Leave to Appeal (Criminal) No. 1195 of 2024.
Ms Rao vehemently contended that the Second FIR based on
same factual substratum is impermissible in law. In this regard,
Ms Rao relied on the decision of Hon’ble Supreme Court in the
case of Upkar Singh Vs. Ved Prakas, (2004) 13 SCC 292,
wherein it has been held that a second FIR on the same facts
cannot be sustained and that any subsequent information must
be investigated only by way of further investigation in the first
FIR. On the same issue, Ms Rao next relied on the decision of
Hon’ble Supreme Court in the case of T.T. Antony Vs. State of
Kerala, (2001) 6 SCC 181 wherein the Hon’ble Supreme Court
has held that there can be no second FIR and consequently there
can be no fresh investigation on receipt of every subsequent
information in respect of the same cognizable offence or the
same occurrence or incident giving rise to one or more
cognizable offences. It has further been held that under the
scheme of the provisions of Sections 154, 155, 156, 157, 162,
169, 170 and 173 of CrPC, only the earliest or the first
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information with regard to the commission of a cognizable
offence satisfies the requirements of Section 154 CrPC.
8. Learned senior counsel further submitted that in the
Third FIR, respondent no. 5 has acknowledged that similar
allegations are already under investigation in Second FIR,
thereby precluding the possibility of registration of Third FIR
for duplication of fact. Ms Rao stressed that the object behind
registration of the Third FIR, despite having awareness of all
the facts and knowledge, was to create jurisdiction for
Enforcement Directorate (ED) to create a new ECIR and to
evergreen their jurisdiction so as to perpetually keep the
petitioner in gross fear. Ms Rao further submitted that the
prosecution initiated by ED against the Petitioner is completely
mala fide and abuse of Section 66 of the PMLA, which has
been conceived as a facilitative provision for inter-agency
coordination and not to manufacture or evergreen jurisdiction.
Ms Rao reiterated that both the communications under Section
66(2), dated 20.08.2024 and 14.02.2025, emanate from same
transaction and same search dated 16.07.2024 and the petitioner
was not even arraigned as an accused in Second FIR, it was
later subsumed vide addendum dated 20.09.2024. Moreover,
addendum dated 20.09.2024 was sent only after the First FIR
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was quashed by this Court qua Sanjeev Hans and the second
communication selectively disclosed material already in
possession of ED and any reference to subsequent search dated
28.01.2025 is only illusory. Ms Rao further submitted that the
steps taken by ED in setting in motion more than one
complaint/prosecution on the very same allegations and
transactions, runs contrary to the settled position of law laid
down by the Hon'ble Supreme Court and hence constitutes an
abuse of the criminal justice dispensation system.
9. Ms Rao next submitted that the entire foundation of
the proceedings initiated against the petitioner under the
impugned ECIR rests upon petitioner's own alleged self-
incriminatory statements, which were recorded by the
respondent-ED under Section 50 of the PMLA. But the said
statements were obtained under duress, coercion and, therefore,
cannot constitute a lawful basis for initiation of proceedings.
She further submitted that it is the settled law that if very
initiation of proceedings is not in consonance with law, all the
subsequent actions and proceedings would fall as illegality
strikes at the root and she placed her reliance upon the decisions
rendered in the cases of (i) State of Punjab Vs. Davinder Pal
Singh Bhullar (supra) and (ii) B.N. John Vs. State of UP
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(decided on 02.01.2025, SLP (Crl.) No. 2184 of 2024), 2025
INSC 4. Ms Rao further submitted that the petitioner, at the
earliest opportunity, retracted the said statements on oath in
CrWJC No. 1064/2025, which has been filed for quashing of
FIR No. 05/2025, wherein the petitioner categorically stated
that he was forced to affix his signature on statements prepared
by the ED.
10. Ms Rao argued at length that the statements
recorded under section 50 of the PMLA are similar to
statements recorded under section 164 CrPC/Section 183 of
BNSS and constitutional protection against self-incrimination
under Article 20 (3) & Article 21 would be available to a person
when making the statement. Ms Rao next submitted that in
terms of Section 65 of the PMLA, the provisions of
BNSS/CrPC and the procedure laid down thereunder are
applicable to the proceedings under the PMLA. Section 65 of
the PMLA clearly states that the provisions of CrPC/BNSS
unless inconsistent with any other provisions of the PMLA are
applicable to arrest, search and seizure, attachment,
confiscation, investigation, prosecution and other proceedings
under the PMLA. Further, in view of Section 71 of the PMLA,
the provisions of the PMLA shall only have an overriding effect
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in the event of any inconsistency between the provisions of the
PMLA and the provisions of BNSS/CrPC subject to the scope
and ambit of Section 65 of the PMLA. In this regard, learned
senior counsel referred to a number of decisions of Hon’ble
Supreme Court, including (i) Ashok Munilal Vs. Assistant
Director, (2018) 16 SCC 158; (ii) Yash Tuteja Vs. Union of
India, 2024 SCC Online SC 533; (iii) Tarsem Lal Vs.
Enforcement Directorate, (2024) 7 SCC 61. Ms Rao further
submitted that since the PMLA proceedings do not prescribe
any distinct statutory mechanism or safeguards or for recording
of confessional statements, when the statement is recorded
under Section 50 of the PMLA, the procedural protection under
Section 164 CrPC must be read into it. Since the special statute
is silent on procedural safeguards, the general procedural law
would apply. Ms Rao then referred to Section 50(4) of the
PMLA to buttress the point that the proceeding under sub-
section (2) and (3) of Section 50 of the PMLA shall be deemed
to be a judicial proceeding within the meaning of Section 193
and Section 228 of IPC. She referred to Section 63(2) of the
PMLA which provides that a person is legally bound to state the
truth but this cannot be stretched to the extent of self
incrimination. Ms Rao also referred to Section 24 and 25 of the
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Evidence Act for law relating to confession and submitted that
if no warning has been given that a person is not bound to make
a confession and if he does so, it may be used as evidence
against him, any admission or confession will be hit by non-
compliance of Section 164 CrPC. Therefore, the statement of
the petitioner recorded under Section 50 of the PMLA are in
violation of what is called ‘Miranda Warnings’ under the US
law which only reiterates the proposition of law that a person
cannot be compelled to make confession incriminating himself.
Ms Rao further referred to Rule 29 of Criminal Court Rules of
Patna High Court which provides how confession is to be
recorded. Reverting to Section 24 of the Indian Evidence Act,
Ms Rao submitted that confession caused by inducement,
threat, or promise from a person in authority is irrelevant and
inadmissible in a criminal proceeding.
11. Taking her argument forward, Ms Rao submitted
that the Hon’ble Supreme Court has consistently held that
protection under Article 20(3) of the Constitution is not
confined to an accused after arrest, but extends to a suspect or
person under interrogation where the answers sought have a
tendency to incriminate. She placed her reliance on the decision
in the case of Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424
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wherein the Hon'ble Supreme Court held that the right against
self-incrimination operates at the stage of police or agency
interrogation itself. She also relied on the decision in the case of
Selvi v. State of Karnataka, (2010) 7 SCC 263, wherein it was
held that coerced statements, including those obtained through
psychological pressure or compulsion, violate Article 20(3) and
Article 21 of the Constitution of India. Ms Rao further
submitted that tactics of the respondent-ED against the
petitioner in recording his statement amounts to gaslighting.
The petitioner has been repeatedly threatened with penal
consequences and compelled to sign coerced statement
rendering the proceedings unsustainable. Ms Rao reiterated that
the statements of the petitioner recorded by the ED in ECIR-4
have been used to register ECIR-13 is in violation of law laid
down by the Hon'ble Supreme Court in Prem Prakash (supra).
However, she submitted that though Prem Prakash (supra)
contemplates of a situation where the statement of an accused is
recorded while he is in custody in another case, the analogy can
be extended to the present situation wherein the Petitioner was
in a vulnerable position due to the threat of arrest and the ED
officials were in a dominating position.
12. Ms Rao further submitted that the petitioner has
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all along been cooperating in the investigation and he had
appeared before ED on more than 35 occasions in connection
with ECIR-4. His statement was recorded by ED on multiple
occasions and the petitioner has provided various documents, as
demanded by the ED. This shows the bona fide of the petitioner
to cooperate with the investigation. On this account also, further
proceeding under ECIR-13 is without any basis.
13. Ms Rao further submitted that an objection may
be taken by the respondents that ECIR is an internal document,
unlike an FIR, and the same is not amenable to challenge or
quashing by this Court under Article 226 of the Constitution of
India. But this objection would be misconceived and contrary to
settled law. She relied on the following decisions of the Hon’ble
Supreme Court wherein the Hon’ble Supreme Court has held
that ECIR can be quashed:
(i) Anjaneya Hanumanthaiah vs UOI 2024 SCC
Online SC 3095.
(ii) M/s VGN Developers vs. ED Order dated
02.12.2022 in SLP (Crl.) 10627/2019.
(iii) Directorate of Enforcement vs Indiabulls
Housing & Others Crl.A. No. 791/2024.
14. She further submitted that consistent position
across High Courts is that ECIR is not immune from challenge
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and in this regard, she placed her reliance on the following
decisions:
(i) Harish Fabiani vs ED 2022 SCC Online Del
3121.
(ii) K. Govindraj vs UOI 2024 SCC Online Mad
3500.
(iii) Naresh Goyal vs. ED 2023 SCC Online Bom
2121.
(iv) South India Bank Ltd. vs. ED 2024 SCC Online
Ker 3936.
(v) V.P. Nandakumar vs ED 2023 SCC Online Ker
6848.
15. Distinguishing the judgments relied upon by the
ED in its counter affidavit, she submitted that those judgments
are in context of petitions under Section 482 CrPC, wherein
courts have exercised restraint on the ground that the inherent
jurisdiction is not ordinarily invoked to quash an ECIR.
However, the ED has itself acknowledged that appropriate
remedy for seeking quashing of an ECIR lies under Article 226
of the Constitution of India and not under Section 482 CrPC
and referred to the decision of learned Single Judge of High
Court of Punjab & Haryana in the case of Pawan Insaa Vs.
Directorate of Enforcement, CRM-M No. 6378 of 2023,
wherein ED categorically submitted before the Court that the
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inherent jurisdiction under Section 482 CrPC cannot be
exercised to quash an ECIR and that the proper remedy would
be to invoke the writ jurisdiction under Article 226 of the
Constitution of India.
16. Ms Rao further submitted that Section 3 of the
PMLA defines what is the offence of money laundering and it
talks about involvement of the persons in dealing with proceeds
of crime. The petitioner is not a public servant, he is merely a
contractor. There is no allegation of cheating and there was no
offence committed under the Prevention of Corruption Act. So,
there was no predicate offence in the First FIR so as to proceed
against the petitioner under the PMLA. Moreover, for initiation
of proceeding under the PMLA and bringing Section 24 of the
PMLA regarding reversal of burden of proof, the prosecution
has first to establish that there exists proceeds of crime as
defined under Section 2(u) of the PMLA. But the petitioner’s
company worked as contractor and subcontractor for different
companies and payments were made against invoices and
reflected in IT/GST records. These are normal business
transactions. Therefore, if there is no proceed of crime, the
whole substratum of the case against the petitioner would go
and institution of ECIR-13 by the ED is merely a tactics to
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harass the petitioner and to extract self-incriminating
confession, which should not be allowed. Hence, this Court in
its writ jurisdiction under Article 226 of the Constitution must
intervene in the matter and quash the whole proceeding in
ECIR-13 as well as proceedings arising out of ECIR-4.
17. Mr. Zoheb Hossain, learned Special Counsel,
appearing on behalf of respondent-ED, at the outset submitted
that the present petition is not maintainable and the issues raised
in the present petition already stood decided by the Hon’ble
Supreme Court in the case of Vijay Madanlal Choudhary &
Ors. Vs. Union of India & Ors., (2023) 12 SCC 1. The basic
thrust of the argument of the writ petitioner is challenge to the
provisions of Sections 50 and 63 of the PMLA but these issues
stand conclusively decided by a three Judges’ Bench of Hon’ble
Supreme Court in the case of Vijay Madanlal Choudhary
(supra). Mr. Hossain further submitted that a writ petition
challenging ECIR-13 would not be maintainable in the light of
law declared by the Hon’ble Supreme Court in the case of Vijay
Madanlal Choudhary (supra), wherein it has been held that
ECIR is not a statutory document and is not akin to FIR and,
therefore, Mr. Hossain submitted that seeking its quashing is
meaningless and premature especially in a complaint case,
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where the complaint is yet to be filed. Moreover, the statement
during inquiry/investigation cannot be quashed by this Court as
they could be considered only during trial.
18. Learned Special Counsel further submitted that so
far as contention of the petitioner about ECIR-4 and ECIR-13
having same subject matter and having same allegation is
concerned, such submission is misconceived. First FIR, i.e.,
Rupaspur P.S. Case No. 18 of 2023 was the basis for ECIR-4
and after filing of addendum, the Second FIR, i.e., FIR No. 05
of 2024 got subsumed in ECIR-4 on 20.09.2024. Now, FIR No.
5 of 2024 relates to the illicit enrichment of two public servants,
namely Sanjeev Hans and Gulab Yadav registered for the
offences under Sections 13(1)(b) and 13(2) of the PC Act. In
this ECIR, the role of the petitioner was restricted to aiding and
abetting the public servants, whereafter a larger conspiracy was
discovered and reported by ED to the Special Vigilance Unit,
Bihar, upon which FIR No. 5/2025 was instituted, wherein the
petitioner was found to be manipulating tenders and further
holding and managing properties in India and abroad on behalf
of various senior officials of the Bihar Government and
concealing their illicit funds generated in cash through
investment and real estate. The larger conspiracy part arising
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out of FIR No. 05 of 2025, i.e., the Third FIR is the subject
matter of ECIR-13. Therefore, the scheduled offences in two
ECIRs arise from different FIRs instituted for diferent offences.
19. Controverting the claim of the petitioner that
registration of a Second FIR and initiating a fresh investigation
on the basis of same alleged transaction is illegal and violative
of Article 21 of the Constitution of India, referring to the
decision in the case of T.T. Antony (supra), learned Special
counsel submitted that the decision of T.T. Antony (supra) has
no application in the given facts and circumstances. Mr.
Hossain relied on the decision in the case of Ram Lal Narang
v. State (Delhi Admn.), (1979) 2 SCC 322, wherein considering
the registration of second FIR in relation to the same facts but
constituting different offences, and finding the ambit and scope
of investigation entirely different, Hon’ble Supreme Court
declined to grant relief to the accused and rejected the
contention that the entire investigation in the subsequent FIR
was illegal for the reason that fresh facts came to light and the
scope of investigation was broadened by the facts which came
to be disclosed subsequently. Hon’ble Supreme Court noted that
the comparison of the two FIRs demonstrate that the
conspiracies were different and they were not identical and the
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subject matter was also different. Mr. Hossain next referred to
the decision in the case of M. Krishna vs. State of Karnataka,
(1999) 3 SCC 247, wherein the Hon'ble Supreme Court took the
view that even when the Article of charges were similar but for
a different period, there was nothing in the Code to debar
registration of a second FIR. Further, in the case of Nirmal
Singh Kahlon vs. State of Punjab, (2009) 1 SCC 441, the
Hon'ble Supreme Court held that an offence would not be
judged by mere mentioning of the sections, but by the mode and
manner in which it was committed as also the nature thereof.
Thus, Mr. Hossain submitted that facts of the case leading to
registration of different FIRs would fall in the category of
exception to the case of T.T. Antony (supra). Mr. Hossain
stressed that the scheduled offences in the instant case
underlying the two ECIRs are not on the same cause of action
and neither they arise out of the same offence. The ingredients
of the offences are distinct and the proceeds of the crime are
also different.
20. On the permissibility of institution of more than
one FIR arising out of similar set of facts, Mr. Hossain relied on
the decision in the case of Babubhai Vs. State of Gujrat &
Ors., (2010) 12 SCC 254, wherein the Hon’ble Supreme Court
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held that the Court has to examine the facts and circumstances
giving rise to both the FIRs and the test of sameness is to be
applied to find out whether both the FIRs relate to the same
incident in respect of the same occurrence or are with regard to
the incidents which are two or more parts of the same
transaction. If the answer is in the affirmative, the second FIR is
liable to be quashed. However, in case, the contrary is proved,
where the version in the second FIR is different and they are in
respect of the two different incidents/crimes, the second FIR is
permissible. Mr. Hossain further submitted that in the case of
Upkar Singh (supra), a three Judges’ Bench of Hon’ble
Supreme Court held that even with regard to a complaint,
arising out of a complaint on further investigation, if it was
found that there was a larger conspiracy than the one referred to
in the previous complaint, then a further investigation under the
court culminating in another complaint is permissible.
Similarly, in the case of in State of Bombay vs. S.L. Apte, 1960
SCC OnLine SC 56, the Hon’ble Supreme Court has held that
if the two offences are distinct, then notwithstanding the fact
that the allegations in the two complaints might be substantially
similar, the second prosecution cannot be barred. Further, in the
case of Monica Bedi v. State of A.P., (2011) 1 SCC 284,
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Hon’ble Supreme Court has held that it is well settled that the
same set of facts may give rise to different offences and
separate prosecution and punishment under different statues.
Therefore, the submission challenging the maintainability of the
Second FIR, and on that ground challenge to ECIR-13, is
completely misconceived. Learned Special Counsel, thus,
submitted that even the reliance placed on the decision of Vinay
Tyagi(supra) and Pramod Kumar (supra) regarding further
investigation with authorization is misplaced due to
dissimilarity of facts.
21. Learned Special Counsel further submitted that,
moreover, predicate offences were never challenged and as
multiple FIRs could be subsumed for investigation under one
ECIR, the challenge to ECIR-13 is completely without any
basis. Mr. Hossain reiterated that Third FIR, i.e., FIR No. 05 of
2025 concerns larger conspiracy and apart from the offences
under the PC Act and the BNS, offences under the Official
Secrets Act are also involved which were not the subject matter
of earlier FIR. Further, the involvement of a number of other
accused persons have also been found apart from Sanjeev Hans
and Gulab Yadav. There may be overlapping allegations in part,
but it cannot be said that the Third FIR and ECIR-13 are
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nothing but evergreening of ECIR-4. Mr. Hossain further
submitted that even the submission that FIR No. 18 of 2023 has
been quashed by the learned Co-ordinate Bench of this Court, is
not entirely correct as the FIR No. 18 of 2023 has been quashed
so far as it is related to Sanjeev Hans but not for other accused
persons. Therefore, the said FIR is still on record and the
petitioner could not gain any benefit from partial quashing.
Moreover, the petitioner was not an accused in the said FIR and
he came to be implicated as a part of larger conspiracy in FIR
No. 05 of 2025 which has given rise to ECIR-13. Mr. Hossain
further submitted that it is well settled law that
proceedings/FIRs can be partially quashed against certain
individuals and the same would not amount to quashing of
entire criminal case as held by the Hon'ble Supreme Court in
the case of Lovely Salhotra vs. State (NCT of Delhi), (2018) 12
SCC 391.
22. Rebutting the contention of the petitioner for
invoking ‘Miranda Warnings’ and application of Section 164(4)
CrPC in Section 50 of the PMLA, Mr. Hossain submitted that
the said contention is legally misplaced. Mr. Hossain further
submitted that sub-section 4 of Section 164 CrPC is applicable
for recording of confession of an accused person, whereas at the
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stage of recording of a statement under section 50, the petitioner
did not stand in the character of an accused nor was there any
formal accusation and, therefore, the law laid down by the
Hon'ble Supreme Court in Vijay Madanlal Chaudhary (supra)
squarely applies. Moreover, the recording of a confession under
section 164(4) CrPC is to be done in a manner provided under
Section 281 of CrPC which in turn provides for recording of
examination of an accused. This makes it clear that Section
164(4) CrPC is applicable at the stage where the person is
already an accused. Mr. Hossain further contended that there
could be no applicability of the right against self-incrimination
provided under Article 20(3) at the stage of recording of
statement under section 50 of the PMLA, till a person has either
been arrested or has formally been arrayed as an accused by
way of a prosecution complaint. Otherwise, the said right is not
available to a person. Mr. Hossain further submitted that the
petitioner's statement under section 50 were recorded in the
present case prior to the issuance of letter dated 14.02.2025 and,
therefore, prior to the registration of the FIR dated 30.04.2025
containing the scheduled offences, the petitioner was not an
accused at that time to claim the protection of Article 20(3) of
the Constitution. Mr. Hossain further submitted that it is settled
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principle of law that a person is not an accused at the stage of
summons or recording of the statements pursuant to summons
and referred to the decision in the case of K.I. Pavunny Vs.
Assistant Collector (HQ), (1997) 3 SCC 721, wherein the
Hon’ble Supreme Court has held that a statement recorded or
given by the person suspected of having committed an offence
during the inquiry under Section 108 of the Customs Act or
during confiscation proceedings is not by a person accused of
the offence within the meaning of Section 24 of the Evidence
Act. Mr. Hossain stressed that Section 50 of the PMLA is a
specific provision in a special law and would therefore override
the general law in the CrPC to the extent of any inconsistency
and referred to the decision of Hon’ble Supreme Court in the
case of Abhishek Banerjee Vs. Enforcement Directorate,
(2024) 9 SCC 22 and also V. Senthil Balaji Vs. State, 2023
SCC OnLine SC 934.
23. Challenging the contention of the petitioner about
‘Miranda Rights’, as a measure of protection against self-
incrimination, Mr. Hossain submitted that in the Indian context,
there is no general applicability of ‘Miranda Rights’ as a
protection against self-incrimination for the reason that in the
Indian legal system, adequate safeguards have been provided
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against self-incrimination and other rights talked about under
the ‘Miranda Principles’. The Hon’ble Supreme Court in the
case of Selvi v. State of Karnataka, (2010) 7 SCC 263, has held
that under Indian law, there is no automatic presumption that
the custodial statements have been extracted through coercion.
In short, there is no requirement of additional diligence akin to
the administration of ‘Miranda Warnings’, though the Hon’ble
Supreme Court cautioned that in circumstances where it is
shown that a person was indeed compelled to make statements
while in custody, relying on such testimony as well as its
derivative use will offend Article 20(3). Mr. Hossain next
referred to the decision in the case of Mohd. Ajmal Amir Kasab
v. State of Maharashtra, (2012) 9 SCC 1, wherein the Hon’ble
Supreme Court unequivocally held that the ‘Miranda Principles’
have no applicability under the Indian system of law. The
Hon’ble Supreme Court observed that the Miranda v. Arizona,
[(1966) 16 L Ed 2d 694: 384 US 436] decision was rendered
under a system of law in which an utterance made by a suspect
before the police could lead to his conviction and even the
imposition of death penalty. After discussing the background
and necessity for invocation of ‘Miranda Principles’, the
Hon’ble Supreme Court held there is no doubt that right to
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silence and right to the presence of an attorney granted by the
‘Miranda Decision’ to an accused as a measure of protection
against self-incrimination, have no application under the Indian
system of law. After further discussion, the Hon’ble Supreme
Court held that the protection to the accused against any self-
incrimination guaranteed by the Constitution is very strongly
built into the Indian statutory framework and the Hon’ble
Supreme Court found absolutely no reason to draw any help
from the ‘Miranda Principles’ for providing protection against
self-incrimination to the accused. Mr. Hossain pointed out that
the Hon’ble Supreme Court referred to the decision of three
Judges Bench delivered in the case of Nandini Satpathy (supra)
and noted that in the end, the Court refrained from entirely
transplanting the ‘Miranda Rules’ into the laws under the Indian
criminal system and, with regard to the Indian realities,
suggested certain guidelines. On the strength of the aforesaid
decisions, Mr. Hossain submitted that the submission of the
petitioner on this account is liable to be rejected as the
parameters of Section 164(4) CrPC cannot be imported into
Section 50 of the PMLA, and the concept of ‘Miranda
Warnings’ has not application in the Indian system of law. Mr.
Hossain further submitted that in the case of Nandini Satpathy
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(supra), the Hon’ble Supreme Court discussed about necessity
of presence of lawyer during custodial interrogation while
enumerating the guidelines. However, lawyers’ presence is not
allowed during investigation/interrogation under the PMLA.
Nonetheless, in view of inconsistency with Section 164(1)
proviso of CrPC wherein the presence of an Advocate is
statutorily required, the PMLA will override the CrPC. Mr.
Hossain next referred to the decision of Hon’ble Supreme in the
case of Poolpandi vs. Superintendent, Central Excise, (1992)
3 SCC 259, wherein in somewhat similar circumstances, the
Hon’ble Supreme Court was pleased to reject a similar
contention for allowing assistance of a counsel during
interrogation. Learned Special Counsel also referred to the
decision in the case of Directorate of Enforcement vs.
Satyendar Kumar Jain in Crl.M.C. 2869/2022, wherein the
Delhi High Court has held that since there is neither any FIR
nor a complaint against the respondent, he cannot, as a matter of
right, claim to ask for the presence of his lawyers during the
course of recording of his statement.
24. Mr. Hossain further submitted that much stress
has been put by the petitioner on alleged impropriety in the
manner of obtaining evidence. However, the same does not
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affect its admissibility, as the 'fruit of the poisonous tree being
poisonous’ doctrine is not recognized in India. Mr. Hossain
placed his reliance on the decision of the Hon'ble Supreme
Court in R. M. Malkani v. State of Maharashtra (1973) 1 SCC
471. Mr. Hossain also referred to the decision in the case of
Pooran Mal v. Director of Inspection (Investigation), (1974) 1
SCC 345, wherein the Hon’ble Supreme Court observed that
neither by invoking the spirit of our Constitution nor by a
strained construction of any of the fundamental rights, the
evidence obtained in an illegal search could be excluded. The
Hon’ble Supreme Court went on to further hold that so far as
India is concerned, its law of evidence is modelled on the rules
of evidence which prevailed in English Law, and Courts in
India and in England have consistently refused to exclude
relevant evidence merely on the ground that it is obtained by
illegal search or seizure. It has further been held that it was not
a rule of evidence but a rule of prudence and fair play. It would
thus be seen that in India, as in England, where the test of
admissibility of evidence lies in relevancy, unless there is an
express or necessarily implied prohibition in the Constitution or
other law, evidence obtained as a result of illegal search or
seizure is not liable to be shut out. Mr. Hossain, thus, submitted
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that the manner of taking statements will not vitiate the
statements. Statements may contain admissions of facts not
amounting to confessions and therefore would, in any event, be
admissible. All these issues are matters of trial and cannot be
decided at this stage in a writ proceeding.
25. Mr. Hossain next submitted that Section 154
CrPC starts with the expression “every information relating to
the commission of cognizable offence, if given orally to an
officer in charge of a police station, shall be reduced into
writing by him..." Therefore, at the stage of registering an FIR,
it is sufficient if there is information of commission of
cognizable offences and the admissibility, correctness or
veracity of such statements or information would be a matter of
investigation and subsequent trial upon filing of a final report.
The petitioner's contention that such information must meet the
requirement of admissibility of evidence is misplaced and hence
on this ground alone the petition deserves to fail.
26. Mr. Hossain further submitted that by way of the
interim application filed for amendment of the petition, the
petitioner has sought to retract the statements dated 16.07.2024,
18.07.2024, 18.09.2024, 20.09.2024, 21.09.2024 and
01.10.2024, after the lapse of more than 1 year and 3 months.
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There is no justifiable reason for such belated retraction nor has
the petitioner made any effort to explain the delay. Mr. Hossain
submitted that it is a settled principle of law that retraction must
be contemporaneous and within a reasonable time and relied on
the decision of Hon'ble Supreme Court in the case of Maulana
Naseeruddin Mohd. Haneefuddin v. State of Gujarat, (2007)
12 SCC 545, wherein the Hon’ble Supreme Court has held that
it is no doubt true that there is no time statutorily fixed during
which the confessional statement, if any, can be retracted, but it
has to be done within a reasonable time. Mr. Hossain further
submitted that there is no infallible rule that retracted statements
cannot be considered and placed his reliance on the decision in
the case of K.T.M.S. Mohd. v. Union of India, (1992) 3 SCC
178. Mr. Hossain further submitted that the Hon’ble Supreme
Court in the case of State of Orissa vs. Ganesh Chandra Jew,
2004 (8) SCC 40, held that if a person has not sought to retract
the statements at the first available opportunity, it raises serious
question over the credibility of such retraction. Mr. Hossain
submitted that belated retraction by the petitioner deserves to be
viewed with suspicion and needs to be scrutinized by the trial
court during trial proceedings and can certainly not be taken at
face value or relied upon for the purpose of quashing the ECIR
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and relied on a number of decisions of Delhi High Court,
namely State v. Mohd. Afzal, 2003 SCC OnLine Del 935,
H.R. Siddique vs. Directorate of Enforcement, (2015) SCC
Online Del 6424 and Dayawanti v. Commissioner of Income
Tax, 2016 SCC OnLine Del 5772.
27. Addressing to the prayer of the petitioner wherein
the petitioner sought quashing of summons dated 09.09.2025
and 15.09.2025, Mr. Hossain submitted that a person cannot be
aggrieved by mere issuance of summons under Section 50 of
the PMLA, which is part and parcel of the powers conferred
upon the Directorate of Enforcement to conduct
investigation/inquiry under the Act. Moreover, such prayer is
highly premature and the petitioner cannot even be said to be a
person aggrieved in the eyes of law at the stage of summons.
The Hon'ble Supreme Court in the case of Kirit Shrimankar v.
Union of India & Ors. in WP (CrL.) No. 109/2013 and
connected matters, had held that seeking extraordinary remedy
merely on account of issuance of summons at the stage of
investigation is highly premature and it would be for the
petitioner to work out his remedy as and when some action is
taken against the petitioner. Mr. Hossain further submitted that
there is no violation of any right of the petitioner warranting
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interference of this Court, at the stage of summons. The powers
have been conferred upon the Enforcement Officers for the
purpose of complete and effective investigation which includes
the power to summon and examine any person. At the time of
such investigative process, the person summoned is not an
accused. Mere recording of ECIR by giving a file number does
not make a person an accused. Mr. Hossain further submitted
that law is well settled that the Courts do not interdict the
powers of investigating agencies conferred upon them by the
statutes and placed his reliance on the decision of Hon’ble
Supreme Court in the case of Union of India & Anr. Vs.
Kunisetty Satyanarayana, (2006) 12 SCC 28 and
Commissioner of Customs, Calcutta & Ors. Vs. M/s M.M.
Exports & Anr., (2010) 15 SCC 647.
Mr. Hossain then submitted that High Court of Delhi,
following the above precedents of the Hon’ble Supreme Court,
has dismissed a quashing petition filed at the stage of
investigation and issuance of summons in the case of Raghav
Bahl Vs. Enforcement Directorate, W.P. (Crl) No. 2392/2021.
He further submitted that there cannot be any prejudice caused
to the petitioner on the issuance of summons under Section 50
of the PMLA which is part and parcel of the process of
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investigation.
28. Mr. Hossain then took up the main contention of
the petitioner about challenge to ECIR-13 and submitted that a
petition challenging the said ECIR would not be maintainable in
the light of law declared by the Supreme Court in Vijay
Madanlal Choudhary (supra), wherein it has been held that
ECIR is not a statutory document and is not akin to FIR and he,
therefore, submitted that seeking its quashing is meaningless
and premature especially in a complaint case, where the
complaint is yet to be filed. Mr. Hossain further submitted that
the reliance placed by the petitioner on the decisions of Hon’ble
Supreme Court where ECIR has been quashed or closed is
erroneous in as much as in those cases the entire predicate
offence had been closed or quashed or resulted in complete
discharge or acquittal of the accused persons and hence, in
those peculiar circumstances the ECIR/PMLA
investigation/trial was closed, which is not the case of the
petitioner.
29. Mr. Hossain next submitted that a private
individual can be liable for aiding or abetting the offences under
the PC Act. He further submitted that the contention of the
petitioner that he is not a public servant and hence, he cannot be
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prosecuted for offences under the PC Act deserves to be
rejected, as the prosecution against private individuals for
aiding and abetting the offences alleged under the PC Act or the
offence of criminal conspiracy under Section 120-B of IPC can
lie and placed his reliance on the decision in the case of P.
Nallammal v. State, (1999) 6 SCC 559. Mr. Hossain further
placed his reliance upon the decision in the case of State v.
Jitender Kumar Singh, (2014) 11 SCC 724, wherein the
Hon'ble Supreme Court held that even in the absence of a public
servant being tried for the offence under the PC Act, a private
person can be tried for PC Act as well as non- PC Act offences.
30. Mr. Hossain, thereafter, submitted that Section
66(2) of the PMLA casts a mandatory duty upon the
Investigating Officer to share the information and materials
collected with the other concerned law enforcement agencies if
such disclosure is considered necessary for enabling those
authorities to discharge their statutory functions. He further
submitted that FIR No. 05/2025 was registered by the Special
Vigilance Unit, Bihar, Patna against the petitioner and others for
the commission of offences under Sections 7A, 8, 9, 10 and 12
of the PC Act read with Sections 3(2), 6(2) and 15 of the
Official Secrets Act, 1923 and Sections 61, 318 (4), 338 and
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340 (2) of the BNS on the basis of the information furnished by
the Joint Director of the Directorate of Enforcement, Patna
Zone to the Additional Director General of the Economic
Offences Unit, Patna under Section 66 (2) of the PMLA. Mr.
Hossain referred to the decision of Hon’ble Supreme Court in
the case of Anil Tuteja v. Union of India, 2025 SCC OnLine
SC 2110, wherein the Hon'ble Supreme Court upheld the FIRs
registered on the information shared by the ED under section 66
(2) and further held that Section 66 (2), casts a mandatory duty
on the ED to share the materials collected with the other
concerned agencies. Mr. Hossain also referred to the decision in
the case of Vijay Madanlal Choudhary (supra) on this aspect of
the matter and submitted that Section 66(2) not only empowers
but also obligates the ED to share information with the
jurisdictional police if, in the court of its investigation or
inquiry, it comes across material disclosing the commission of a
scheduled offence.
31. Mr. Hossain also assailed the contention of the
petitioner in respect of quashing of the ECIR on the ground that
same was recorded on the complaint filed by the ED and he
submitted that the said contention is highly misplaced and
untenable as it is a well-recognized principle of criminal
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jurisprudence that criminal law can be put into motion by any
person as held by the Hon’ble Supreme Court in the case of AR
Antulay Vs. Ramdas Sriniwas Nayak, (1984) 2 SCC 500,
wherein it has been held that it is a well-recognized principle of
criminal jurisprudence that anyone can set or put the criminal
law into motion except where the statute enacting or creating an
offence indicates to the contrary. The scheme of CrPC so
envisages that two parallel and independent agencies could
prosecute criminal offences in court. Even for the most serious
offence of murder, it was not disputed that a private complaint
can not only be filed but also can be entertained and proceeded
with according to law. Mr. Hossain next referred to the decision
in the case of Lalita Kumari vs Government of Uttar Pradesh
(2014) 2 SCC 1 wherein the Hon’ble Supreme Court laid down
the law that if information discloses a cognizable offence, then
the registration of the FIR is mandatory and it has been held
that if the information given clearly mentions the commission
of a cognizable offence, there is no other option but to register
an FIR forthwith.
32. Learned Special Counsel rebutted the argument
advanced by the petitioner that the supplementary Prosecution
Complaint filed against him in ECIR-4 could not have been
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filed without obtaining the permission of the learned Special
Judge to conduct further investigation after the filing of the
First Prosecution Complaint for being misconceived and
erroneous. Mr. Hossain submitted the petitioner has not even
challenged the said ECIR, and therefore, the contention is
wholly irrelevant. He submitted that any requirement of seeking
permission for further investigation, in case it applies, would
apply only within the contours of the same case. Such a
requirement cannot be extended to a separate and distinct ECIR
and he again referred to the case of Vijay Madanlal Choudhary
(supra) wherein it has been observed that permission for further
investigation would be required only during the trial. Mr.
Hossain submitted that it is well settled that the trial
commences only after framing of charges, whereas in the
present case, charges are yet to be framed. On this aspect, Mr.
Hossain also relied on the decision in the case of Hardeep
Singh Vs. State of Punjab & Ors., (2014) 3 SCC 92. Mr.
Hossain further submitted that in the case of State of T.N. Vs.
Hemendhra Reddy, (2023) 16 SCC 779, after discussing a
catena of judgments, the Hon’ble Supreme Court held as under:
“Thus, in view of the law laid down by this
Court in the various decisions cited hereinabove, it
is well settled that sub-section (8) of Section 173
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CrPC permits further investigation, and even
dehors any direction from the court, it is open to
the police to conduct proper investigation, even
after the court takes cognizance of any offence on
the strength of a police report earlier”
33. Mr. Hossain also placed reliance upon the
decision in the case of State of A.P. Vs. A.S. Peter, (2008) 2
SCC 383, wherein the Hon’ble Supreme Court held that
indisputably, the law does not mandate taking of prior
permission from the Magistrate for further investigation.
Carrying out of a further investigation even after filing of the
charge-sheet is a statutory right of the police.
34. Lastly, Mr. Hossain submitted that in criminal
jurisprudence law is well settled that defence of an accused
cannot be looked into in a quashing petition and in support of
his contention, he referred to decision of Hon’ble Supreme
Court in the case(s) of Rajeev Kourav v. Baisahab (2020) 3
SCC 317, Kamal Shivaji Pokarnekar Vs. State of
Maharashtra (2019) 14 SCC 350 and Swaran Singh Vs. State,
(2008) 8 SCC 435.
35. Thus, Mr. Hossain submitted that the whole
argument of the petitioner is just like strawman logic and
instead of addressing the actual issues, the petitioner has been
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trying to confuse the whole issue so as to enable him to assail
the same, therefore, the present petition is completely devoid of
any merit and the same is liable to be dismissed and the
petitioner is not entitled for any relief sought by him.
36. I have given my thoughtful consideration to
different aspects of rival submission of the parties. The
petitioner has approached this Court primarily for quashing of
criminal prosecution arising out of ECIR-13 and also for
quashing the summons issued to the petitioner under the said
ECIR apart from quashing of the statements made on different
dates in connection with ECIR-4. The grounds taken for
allowing the relief(s) sought by the petitioner have been laid
bare in a lucid manner by the learned senior counsel appearing
on behalf of the petitioner. Per contra, the learned Special
Counsel, appearing on behalf of ED, in equally lucid manner,
has put forward his objection for denying the relief(s) sought by
the petitioner. Now, this Court has the onerous job of deciding
the issues in the background of rival submission made by the
learned counsels for the parties and in the facts of the case, as
already discussed hereinbefore.
37. At the outset, it would be beneficial to extract
some of the provisions of law relevant for deciding the issues
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involved. Section 3 of the PMLA defines the offence of money-
laundering and it reads as under:
“3. Offence of money-laundering.--
Whosoever directly or indirectly attempts to
indulge or knowingly assists or knowingly is
a party or is actually involved in any process
or activity connected with the proceeds of
crime and projecting it as untainted property
shall be guilty of offence of
moneylaundering.”
Section 2(u) of the PMLA describes what is proceeds
of crime and the provision reads as under:
“2.Definitions.………………………….
(u) "proceeds of crime" means any
property derived or obtained, directly or
indirectly, by any person as a result of criminal
activity relating to a scheduled offence or the
value of any such property;”
The PMLA also defines ‘investigation’ in the
following term:
“2. Definitions.--………………………….
(na) “investigation” includes all the
proceedings under this Act conducted by the
Director or by an authority authorised by the
Central Government under this Act for the
collection of evidence;”
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Sections 2(x) and 2(y) of the PMLA read as under:
“2.Definitions.--……………………….
(x) "Schedule" means the Schedule to this
Act;
(y) "scheduled offence" means--
(i) the offences specified under Part A of
the Schedule; or
(ii) the offences specified under Part B of
the Schedule if the total value involved in such
offences is thirty lakh rupees or more; “
Thereafter, Section 8 of the PMLA talks about
adjudication and Sections 8 (1), 8(2) and 8(3) read as under:
8. Adjudication.-- (1) On receipt of a
complaint under sub-section (5) of section 5, or
applications made under sub-section (4) of
section 17 or under sub-section (10) of section
18, if the Adjudicating Authority has reason to
believe that any person has committed an
offence under section 3, it may serve a notice
of not less than thirty days on such person
calling upon him to indicate the sources of his
income, earning or assets, out of which or by
means of which he has acquired the property
attached 7 under sub-section (1) of section 5,
or, seized under section 17 or section 18, the
evidence on which he relies and other relevant
information and particulars, and to show cause
why all or any of such properties should not be
declared to be the properties involved in
money-laundering and confiscated by the
Central Government:
Provided that where a notice under this
sub-section specifies any property as being
held by a person on behalf of any other person,
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a copy of such notice shall also be served upon
such other person:
Provided further that where such property
is held jointly by more than one person, such
notice shall be served to all persons holding
such property.
(2) The Adjudicating Authority shall,
after--
(a) considering the reply, if any, to the
notice issued under sub-section (1);
(b) hearing the aggrieved person and the
Director or any other officer authorised by him
in this behalf; and
(c) taking into account all relevant
materials placed on record before him,
by an order, record a finding whether all
or any of the properties referred to in the
notice issued under sub-section (1) are
involved in money-laundering:
Provided that if the property is claimed by
a person, other than a person to whom the
notice had been issued, such person shall also
be given an opportunity of being heard to
prove that the property is not involved in
money-laundering.
(3) Where the Adjudicating Authority
decides under sub-section (2) that any property
is involved in money-laundering, he shall, by
an order in writing, confirm the attachment of
the property made under sub-section (1) of
section 5 or retention of property or record
seized under section 17 or section 18 and
record a finding to that effect, such attachment
or retention of the seized property or record
shall—
(a) continue during the pendency of the
proceedings relating to any scheduled offence
before a court; and
(b) become final after the guilt of the person is
proved in the trial court and order of such trial
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court becomes final.
(4)………………….
(5)……………………
(6)…………………….”
Section 17 deals with search and seizure under the
PMLA which reads as under:
17. Search and seizure.-- (1) Where the
Director, on the basis of information in his
possession, has reason to believe (the reason
for such belief to be recorded in writing) that
any person--
(i) has committed any act which
constitutes money-laundering, or
(ii) is in possession of any proceeds of
crime involved in money-laundering, or
(iii) is in possession of any records
relating to money-laundering,
then, subject to the rules made in this
behalf, he may authorise any officer
subordinate to him to—
(a) enter and search any building, place,
vessel, vehicle or aircraft where he has
reason to suspect that such records or
proceeds of crime are kept;
(b) break open the lock of any door, box,
locker, safe, almirah or other receptacle for
exercising the powers conferred by clause
(a) where the keys thereof are not available;
(c) seize any record or property found as a
result of such search;
(d) place marks of identification on such
record or make or cause to be made extracts
or copies therefrom;
(e) make a note or an inventory of such
record or property;
(f) examine on oath any person, who is found
to be in possession or control of any record
or property, in respect of all matters relevant
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for the purposes of any investigation under
this Act:
Provided that no search shall be
conducted unless, in relation to an offence
under—
(a) Paragraph 1 of Part A and Part B of the
Schedule, a report has been forwarded to a
Magistrate under section 173 of the Code of
Criminal Procedure, 1973 (2 of 1974); or
(b) Paragraph 2 of Part A of the Schedule, a
police report or a complaint has been filed
for taking cognizance of an offence by the
Special Court constituted under sub-section
(1) of section 36 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (61 of
1985).
(2) The authority, who has been
authorised under sub-section (1) shall,
immediately after search and seizure, forward
a copy of the reasons so recorded along with
material in his possession, referred to in that
sub-section, to the Adjudicating Authority in a
sealed envelope, in the manner, as may be
prescribed and such Adjudicating Authority
shall keep such reasons and material for such
period, as may be prescribed.
(3) Where an authority, upon information
obtained during survey under section 16, is
satisfied that any evidence shall be or is likely
to be concealed or tampered with, he may, for
reasons to be recorded in writing, enter and
search the building or place where such
evidence is located and seize that evidence:
Provided that no authorisation referred to
in sub-section (1) shall be required for search
under this sub-section. 12
(4) The authority, seizing any record or
property under this section, shall, within a
period of thirty days from such seizure, file an
application, requesting for retention of such
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record or property, before the Adjudicating
Authority.”
Explanation (ii) of Section 44 of the PMLA reads as
under:
“Explanation.--For the removal of
doubts, it is clarified that,--
(i)………………………………….
(ii) the complaint shall be deemed to
include any subsequent complaint in respect of
further investigation that may be conducted to
bring any further evidence, oral or
documentary, against any accused person
involved in respect of the offence, for which
complaint has already been filed, whether
named in the original complaint or not.”
Authorities have been defined under Section 48 of the
PMLA, which reads as under:
“48. Authorities under Act.-- There shall
be the following classes of authorities for the
purposes of this Act, namely:-- (a) Director or
Additional Director or Joint Director, (b)
Deputy Director, 22 (c) Assistant Director, and
(d) such other class of officers as may be
appointed for the purposes of this Act.”
Sections 63 and 65 of the PMLA read as under:
“63. Punishment for false information
or failure to give information, etc.-- (1) Any
person willfully and maliciously giving false
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information and so causing an arrest or a
search to be made under this Act shall on
conviction be liable for imprisonment for a
term which may extend to two years or with
fine which may extend to fifty thousand rupees
or both.
(2) If any person,--
(a) being legally bound to state the truth of
any matter relating to an offence under
section 3, refuses to answer any question
put to him by an authority in the exercise
of its powers under this Act; or
(b) refuses to sign any statement made by
him in the course of any proceedings
under this Act, which an authority may
legally require to sign; or
(c) to whom a summon is issued under
section 50 either to attend to give
evidence or produce books of account or
other documents at a certain place and
time, omits to attend or produce books of
account or documents at the place or
time,
he shall pay, by way of penalty, a sum
which shall not be less than five hundred
rupees but which may extend to ten thousand
rupees for each such default or failure.
(3) No order under this section shall be
passed by an authority referred to in sub-
section (2) unless the person on whom the
penalty is proposed to be imposed is given an
opportunity of being heard in the matter by
such authority.
65. Code of Criminal Procedure, 1973 to
apply.-- The provisions of the Code of Criminal
Procedure, 1973 (2 of 1974) shall apply, in so
far as they are not inconsistent with the
provisions of this 28 Act, to arrest, search and
seizure, attachment, confiscation, investigation,
prosecution and all other proceedings under
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this Act.”
38. The grievance of the petitioner against ECIR-13 is
mainly on the ground that the said ECIR arises out of the First
FIR as well as ECIR-4. It has been claimed that ECIR-13 is
nothing but reinvestigation for what has already been
investigated in ECIR-4 and it is not an independent proceeding.
The statements recorded in ECIR-4 are being used to institute
new cases against the petitioner and thus, it is claimed, that
there would no end to it as evergreening could be continued to
gaslight the petitioner to force him in making self incriminatory
statements. It has also been contended that under Section 173(8)
CrPC, further investigation is allowed but for the same
transaction, a fresh or de novo investigation is barred under the
law. Analogy has also been drawn based on the decisions in the
case of T. T. Antony (supra), Vinjay Tyagi (supra) and Pramod
Kumar (supra), that no second FIR and no fresh investigation
on receipt of subsequent information is permissible. However,
before embarking upon a journey to test the legality of ECIR-
13, it would be beneficial to consider the nature of the
document in question, i.e., ECIR. Enforcement Case
Information Report (ECIR) is an internal document used by the
ED to start a money-laundering investigation under the PMLA,
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2002 but it has no statutory basis, though it is similar in
function to an FIR because the term ‘ECIR’ is not used
anywhere in the PMLA. Therefore, even when no ECIR has
been recorded, it does not come in the way of the authorities
referred to in Section 48 of the PMLA to commence
inquiry/investigation for initiating civil action of attachment of
property being proceeds of crime by following procedure
prescribed in this regard. But the ECIR can be registered only
when some information is received by the authorities regarding
existence of money-laundering usually based on predicate
offences like fraud, corruption or on narcotic trade. Therefore,
an ECIR can only exist if there is scheduled (predicate) offence
generating proceeds of crime. Since ECIR is an internal
document, it requires no approval from the Magistrate and there
could be no judicial superintendence of this proceeding and it
can run parallel to the police FIR. The Hon’ble Supreme Court
in the case of Vijay Madanlal Choudhary (supra) has held that
since ECIR is not a statutory document, nor there is any
provision in the PMLA requiring Authorities referred to in
Section 48 to record ECIR or to furnish copy thereof to the
accused unlike Section 154 of CrPC. Thus, ECIR creates an
exception to the normal procedure wherein the investigating
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agencies are required to furnish the accused the list of document
and material seized to ensure transparency. However, every FIR
is compulsorily to be forwarded to the local Magistrate. But, in
an ECIR, the ED can call an accused for questioning and
demand financial details, even without informing the accused
about the allegations. The person called to record statement
would even not be knowing that such statement could be used
against him in future. Therefore, the PMLA does not make any
distinction between summoning accused and witnesses,
respectively, unlike under Section 41A and Section 160 CrPC.
The Hon’ble Supreme Court in the case of Vijay Madanlal
Choudhary (supra) has also held that an ECIR is an internal
document created by the department before initiating penal
action or prosecution against the person involved. This process
or activity is connected with proceeds of crime and it also held
that supply of ECIR in every case to the person concerned is not
mandatory. If ECIR is an internal document of the department,
no question arises for quashing the same as the said document is
akin to private document created for initiation of a proceeding
and it may be so that no proceeding might be initiated pursuant
to the said document and the proceeding may even be dropped.
Therefore, a person, as a matter of right, cannot claim quashing
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of ECIR by filing a writ under Article 226 of the Constitution.
Therefore, under writ jurisdiction, except for
situations where the predicate offences have been quashed, a
document like ECIR, per se, is not liable to be quashed not
being in the nature of FIR.
39. Further, challenge to ECIR-13 is also on other
grounds. So far as the submission made on behalf of the
petitioner about contents of ECIR-13 being based on ECIR-4 is
concerned, I think such contention is premature. ECIR-13 has
not seen the light of the day in public domain as the document
has never been put in public domain. Therefore, apprehension
of the petitioner is based on conjectures and surmises. If the
petitioner has rushed to challenge this document before this
Court when the document has not even come in the hands of the
petitioner, the claim that it is nothing but reiteration and
resubmission of ECIR-4 is only speculative. This undue haste
would not help the cause of the petitioner. Unless, ECIR takes
the shape of prosecution complaint or FIR, it would remain an
internal document of the department and in absence of specific
details showing similarity or sameness with previous FIR, the
petitioner cannot ask for quashing the ECIR-13. Therefore, the
prayer of the petitioner is premature at this point of time and
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cannot be looked into by this Court on some perceived
apprehension of the petitioner.
40. Thereafter, it has come in the submission made on
behalf of the ED that subject matter of ECIR-13 arises out of
FIR No. 05 of 2025 and scheduled offences are different. For
this reason, quashing of First FIR against Sanjeev Hans would
also not help the case of the petitioner as the ECIR in question,
i.e., ECIR-13 has taken shape from FIR No. 05 of 2025 and said
to be dealing with some conspiracy part of the matter. Having
regard to the decision of Hon’ble Supreme Court in the case of
Ram Lal Narang (supra), upholding investigation/inquiry to
unearth conspiracy angle would not run contrary to any law of
the land. Hence, institution of ECIR-13 for different scheduled
offences could not be said to be illegal.
41. Closely related to the challenge of the petitioner
to maintainability of ECIR-13 is institution of Second FIR and
consequent proceeding arising out of this FIR on the ground
that the communications made by respondent-ED under Section
66(2) of the PMLA have raised overlapping allegation viz-a-viz
the FIR. The stress of the petitioner is on the point that the
Second FIR, on the same fact, cannot be sustained. It goes
without saying that whether the Second FIR is maintainable or
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not, the same would depend entirely on the facts and
circumstances giving rise to the FIRs. Reference could be made
to the decision in the case of Babubhai (supra) wherein the
Hon’ble Supreme Court in paragraph-21 held as under:
“21. ….. the court has to examine the
facts and circumstances giving rise to both the
FIRs and the test of sameness is to be applied
to find out whether both the FIRs relate to the
same incident in respect of the same
occurrence or are in regard to the incidents
which are two or more parts of the same
transaction. If the answer is in the affirmative,
the second FIR is liable to be quashed.
However, in case, the contrary is proved, where
the version in the second FIR is different and
they are in respect of the two different
incidents/crimes, the second FIR is
permissible. In case in respect of the same
incident the accused in the first FIR comes
forward with a different version or
counterclaim, investigation on both the FIRs
has to be conducted.”
42. Thus, it is clear that if the facts and contents of the
second FIR are different from the first FIR and they are in
respect of different offences, second FIR is permissible. In the
present case, apart from different version in the FIRs alleging
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different incidents with further allegation of larger conspiracy,
the Second FIR is quite sustainable. At the same time, it is also
to be taken note of that the predicate offences have not been
challenged and even in the present writ petition, there is no
challenge to the subsequent FIR. For this reason, I find merit in
the submission of learned Special Counsel for the ED that a
number of FIRs could be subsumed for any accusation under
one ECIR. So, separate investigation by way of ECIR, is not
barred. It is also to be taken note of that in subsequent FIR, new
players have entered as accused persons and this petitioner was
not even an accused in the First FIR as well as the Second FIR.
So, for obvious reason, the petitioner has perhaps chosen not to
challenge the maintainability of subsequent FIR. On these
grounds also I find that challenge to ECIR-13 is without
substance. In the light of the aforesaid discussion, I have no
hesitation in holding that institution of ECIR-13 could not be
said to be evergreening of the jurisdiction by the respondent-
ED.
43. Now, it is to be seen whether the respondent-ED
could be restrained from undertaking further coercive action
against the petitioner or his employee based on ECIR-13 and
ECIR-4, respectively.
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I have already discussed the nature of ECIR, which is
an internal document of the ED, anything done or any action
taken pursuant to the ECIRs are part of investigation/inquiry
being undertaken by the respondent-ED and the statute provides
and empowers the respondent-ED to issue any summons or
make search or effect seizure. Chapter-V of the PMLA is
devoted to the power of the respondent-authorities over search,
seizure, survey and retention of property. Section 17 of the
PMLA provides for search and seizure. If the act of the
respondent-ED is valid by statutory authority, this Court has no
business to intervene in investigation/inquiry of the respondent-
ED. Reference could be made to the decision in the case(s) of
Union of India & Anr. Vs. Kunisetty Satyanarayana (supra)
and Commissioner of Customs, Calcutta & Ors. Vs. M/s M.M.
Exports (supra).
Therefore, I am of the considered opinion that prayer
of the petitioner for restraining the respondent-ED from
undertaking any further coercive action in connection with the
ECIR-13 and ECIR-4 is completely misplaced and such relief
could not be granted to the petitioner.
44. It has strenuously been argued on behalf of the
petitioner that the statements of the petitioner recorded on
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different dates suffer from vice of unconstitutionality. It has also
been submitted that the statements of the petitioner have been
extracted under force and coercion and the petitioner has been
made to incriminating himself. It has also been submitted that
the rights available to a person under Section 166 CrPC/183
BNSS and constitutional protection against self incrimination
under Article 20(3) has not been provided to the petitioner. It
has also been contended that on the point of self incrimination,
‘Miranda Rights’ have not been followed. So far as statement
recorded under Section 50 of the PMLA is concerned, if the
petitioner has not been arraigned as an accused, neither the
protection under Section 164(4) CrPC nor the safeguard under
Article 20(3) of the Constitution would be available to the
petitioner. Reliance has been placed to the decision in the case
of Nandini Satpathy (supra) to stress that right against self
incrimination operates at the stage of police inquiry and
investigation as well. No doubt, it has been held that prohibitive
sweep of Article 20(3) goes to the stage of police investigaiton,
not commencing in Court only but the decision was rendered in
the matter of powers of police during investigation under
Section 161 of CrPC. If the authorities under the PMLA are not
considered to be police officers, Nandini Satpathy (supra)
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woud not have application in cases where investigation is being
carried by the officials of ED and statements are so recorded.
Reliancd could be placed on decision in the case of Vijay
Madanlal Choudhary (supra), the Hon’ble Supreme Court held
that the authorities under the PMLA are not police officers and
for this reason, the statements recorded by the authorities under
the PMLA is not hit by vice of Article 20(3) of the Constitution
or for that matter Article 21 of the Constitution. Hon’ble
Supreme Court further held that if the statement is recorded
after a formal arrest by the ED Officials, then Article 20(3) of
the Constitution and Section 25 of the Evidence Act would
come into play and confession of such person cannot be used
against him. In the facts of the present case, if statements of the
petitioner were recorded under Section 50 of the PMLA prior to
14.02.2025 and the petitioner was not arraigned as an accused
at that time, neither the protection of Article 20(3) of the
Constitution nor Section 164 CrPC/183 BNSS could be
available to the petitioner.
45. Similarly, in the case of K.I. Pavunny (supra),
the Hon’ble Supreme Court, considering the status of a person
suspected of committing an offence and making a statement
under Section 108 of the Customs Act during investigation or
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during confiscation proceedings, has held that such person was
not a person accused of committing the offence within the
meaning of Section 24 of the Evidence Act. The position of the
petitioner is similar to such a person.
46. Much stress has been put by the learned senior
counsel for the petitioner on reading of the safeguard of Section
164(4) CrPC and ‘Miranda Rights’ while recording the
statement of a person under Section 50 r/w Section 63 of the
PMLA. Now, Section 164(4) of CrPC reads as under:
“164. Recording of confessions and
statements.—(1) ---------------------------------
(2)----------------------------------------------
(3)----------------------------------------------
(4) Any such confession shall be recorded
in the manner provided in section 281 for
recording the examination of an accused
person and shall be signed by the person
making the confession; and the Magistrate
shall make a memorandum at the foot of such
record to the following effect:—
“I have explained to (name) that he is not
bound to make a confession and that, if he does
so, any confession he may make may be used
as evidence against him and I believe that this
confession was voluntarily made. It was taken
in my presence and hearing, and was read over
to the person making it and admitted by him to
be correct, and it contains a full and true
account of the statement made by him.”
Therefore, it is apparent that this safeguard is
available to an accused and not to a person who is yet to be
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arraigned as an accused for commission of an offence.
Similarly, ‘Miranda Rights’ have no legal force in the Indian
Legal System as our system has incorporated theses rights by
way of various statutory provisions. In absence of incorporation
of these principles under the PMLA, these rights could not be
grafted in Section 50 of the PMLA. These issues came up for
consideration before the Hon’ble Supreme Court in the case of
Vijay Madanlal Choudhary (supra) and the Hon’ble Supreme
Court refused to subscribe to the view that the recording of
statement under Section 50 is hit by vice of Article 20(3) of the
Constitution or for that matter Article 21 of the Constitution.
Therefore, the argument advanced on behalf of the petitioner
about illegality of the statements due to denial of safeguard
available under Article 20(3) and Article 21 of the Constitution
and Section 164(4) CrPC or ‘Miranda Rights’ appears to be
misconceived and has no legal basis. At the same time, it is also
to be taken note of that the petitioner has been made accused in
the Third FIR registered on 30.04.2025. Prior to that, the
petitioner was not made accused and he was not charged with
commission of any offence. Therefore, the petitioner could not
claim any protection on the ground of self incrimination or
making inculpatory statement.
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47. So far as retraction of these statements by the
petitioner is concerned, it has been contended by the learned
Special Counsel for the respondent-ED that the same was not
contemporaneous and was highly belated and the learned
Special Counsel cited a number of authorities on this point,
namely Maulana Naseeruddin Mohd. Haneefuddin (supra),
K.T.M.S. Mohd. (supra) and State of Orissa vs. Ganesh
Chandra (supra). Nonetheless, at this stage, I do not think such
submission would come to the aid of the petitioner as this is not
the stage to consider the impact of retraction either on the
statements made or on ECIR-13. The petitioner would be at
liberty to take up this issue during trial which can be analyzed
threadbare by the learned trial court.
Thus, in the light of aforesaid discussion, the relief
sought by the petitioner to quash all the statements of the
petitioner dated 16.07.2024, 18.07.2024, 18.09.2024,
20.09.2024, 21.09.2024 and 01.10.2024 could not be granted.
48. Even the prayer of the petitioner for quashing
summons dated 09.09.2025 and 15.09.2025 cannot be allowed
for the reasons discussed hereinafter. Section 50 of the PMLA
reads as under:-
“50. Powers of authorities regarding
summons, production of documents and to
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give evidence, etc.-- (1) The Director shall, for
the purposes of section 13, have the same
powers as are vested in a civil court under the
Code of Civil Procedure, 1908 (5 of 1908)
while trying a suit in respect of the following
matters, namely:--
(a) discovery and inspection;
(b) enforcing the attendance of any person,
including any officer of a banking company
or a financial institution or a company, and
examining him on oath;
(c) compelling the production of records;
(d) receiving evidence on affidavits;
(e) issuing commissions for examination of
witnesses and documents; and
(f) any other matter which may be
prescribed.
(2) The Director, Additional Director,
Joint Director, Deputy Director or Assistant
Director shall have power to summon any
person whose attendance he considers
necessary whether to give evidence or to
produce any records during the course of any
investigation or proceeding under this Act.
(3) All the persons so summoned shall be
bound to attend in person or through
authorised agents, as such officer may direct,
and shall be bound to state the truth upon any
subject respecting which they are examined or
make statements, and produce such documents
as may be required.
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(4) Every proceeding under sub-sections
(2) and (3) shall be deemed to be a judicial
proceeding within the meaning of section 193
and section 228 of the Indian Penal Code,
1860 (45 of 1860).
(5) Subject to any rules made in this
behalf by the Central Government, any officer
referred to in sub-section (2) may impound and
retain in his custody for such period, as he
thinks fit, any records produced before him in
any proceedings under this Act: Provided that
an Assistant Director or a Deputy Director
shall not—
(a) impound any records without recording
his reasons for so doing; or
(b) retain in his custody any such records for
a period exceeding three months, without
obtaining the previous approval of the
Director.”
Therefore, for the purpose of Section 13, the
authorities have been vested with powers of civil court which
exercises the power vested to it under the Code of Civil
Procedure while trying a suit in the matter as provided under
Section 50(1). At the same time, the Officers starting from
Assistant Director to the highest level of Director of the
Department of Enforcement have further been vested with
powers to summon any person whose attendance may be
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considered necessary in order to record his evidence or to
produce any record during the course of investigation or
proceeding under this Act. At the same time, a person so
summoned would be bound to attend in person or through
authorised agents, as such officer may direct, and the person is
bound to state the truth upon any subject respecting which they
are examined or make statements, and produce such documents
as may be required. It is also interesting to take note that every
proceeding under sub-sections (2) and (3) of Section 50 of the
PMLA by deeming provision is a judicial proceeding within the
meaning of Section 193 and Section 228 of the IPC. Therefore,
a person is bound to speak truth and recording false statement
will render such person to be proceeded against under Sections
193 and 228 of the IPC.
49. Now, this power to issue summons is part of the
process of investigation. By way of issuance of summons, it
could not be said that the authorities have infringed upon the
rights of the petitioner and he is being gas-lighted. So, seeking a
remedy in writ jurisdiction at this stage appears to be premature.
The Courts are not supposed to interfere with the process of
investigation which has been vested under the statutes to
different authorities. Law will not move on apprehension of a
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person. If the respondent-authorities have issued summons and
they further moved to examine the petitioner, their action are
covered by the sanction of law. This jurisdiction under Section
50 of the PMLA of the respondent-authorities came under
challenge apart from Section 63 of the PMLA before the
Hon’ble Supreme Court in the case of Vijay Madanlal
Choudhary (supra) and the Hon’ble Supreme Court has
brushed aside all such challenges holding the provisions to be
intra vires. Therefore, asking for quashing summons dated
09.09.2025 and 15.09.2025 is without merit as the same comes
within the power of the respondent-ED and such summons
cannot be said to be suffering from any illegality. Reference
could also be made to the decision in the case of Union of
India & Anr. Vs. Kunisetty Satyanarayana (supra) wherein the
Hon’ble Supreme Court held that it is well settled by a series of
decisions of this Court that ordinarily no writ lies against a
charge sheet or show cause notice. At this stage, the writ
petitioner is premature. Therefore, I do not find much merit in
the contentions of the learned senior counsel for the petitioner
so far as challenge to the issuance of summons dated
09.09.2025 and 15.09.2025, respectively, is concerned and all
contentions in this regard are rejected.
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50. So far the contention of the learned senior counsel
for the petitioner about petitioner being harassed by the
respondent-ED by sending communication under Section 66(2)
of the PMLA to the jurisdictional police for registration of FIR
is concerned, the same is also not sustainable. A mandatory duty
is cast upon the respondent-ED to share information and
material collected by ED to the concerned law enforcement
agencies if such information is for the purpose of enabling those
authorities to discharge their statutory functions. It is obligatory
on part of the ED to share information and material with the
jurisdictional police and any person can set the law in motion.
The Hon’ble Supreme Court time and again held that if the
information discloses the cognizable offences, the registration
of the FIR is mandatory.
51. Similarly, the submission advanced on behalf of
the petitioner about further investigation by the respondent-
authorities which required permission from the court concerned
is not of much significance. As the Hon’ble Supreme Court in
the case of Vijay Madanlal Choudhary (supra) has clearly held
that permissions of further investigation would be required only
during the trial. In the present case, the matter has not reached
the state of charges. Similarly, in the case of State of T.N. Vs.
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Hemendhra Reddy (supra), the Hon’ble Supreme Court held
that Section 173(8) CrPC permits further investigation and even
in the absence of any direction from the court, it is open to the
police to conduct further investigation even after the Court has
taken cognizance of any offence on the strength of the police
report. Similar to the effect is the decision of Hon’ble Supreme
Court in the case of State of State of A.P. Vs. A.S. Peter (supra).
Due to dissimilarity of facts, reference to the case of Vinay
Tyagi (supra) and Pramod Kumar (supra), for further
investigation taking place without permission from the Court,
could not be applied in the present facts of the case.
52. It has been vehemently contended by the learned
senior counsel for the petitioner that petitioner is not a public
servant and proceeding against him appear to be guided by the
allegation that he acted as an agent in large-scale corrupt
dealing of administrative officers and other Government
officials. It has also been contended that the petitioner is not a
public servant and, therefore, scheduled offences under the PC
Act could not be sustained against a person who is himself not a
public servant. I am afraid, this submission runs contrary to the
provisions of law as laid down by the Hon’ble Supreme Court
in the case of Jitender Kumar Singh (supra), wherein it has
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been held that even in the absence of a public servant being
tried for the offence under the PC Act, a private person can be
tried for PC Act as well as non- PC Act offences.
53. Therefore, in the light of discussion made
hereinabove, I am of the considered opinion that the writ
petition is completely devoid of any merit and none of the
relief(s) sought by the petitioner could be granted. At the same
time, due to distinguishable facts, the authorities cited by the
learned senior counsel appearing on behalf of the petitioner
would not come to the help of the petitioner as the authorities
are not applicable in the facts and circumstances of the present
case.
54. Accordingly, the present writ petition is
dismissed.
55. Pending application(s), if any, also stand disposed
of.
(Arun Kumar Jha, J)
Ashish/-
AFR/NAFR AFR
CAV DATE 26-02-2026
Uploading Date 18.05.2026
Transmission Date 18.05.2026
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