CHENNAI: The Madras High Court today dismissed a petition by former Union minister P Chidambaram wife Nalini Chidambaram, challenging Enforcement Directorate's (ED) summons to her to appear as a witness in its money laundering probe in the Saradha chit fund scam case.
Justice S M Subramaniam rejected Nalini's contention that women cannot be called for investigation out of their place of residence under CrPC Sec 160, saying such exemptions are not mandatory and are subject to facts and circumstances of a case.
"This court is of the opinion that based on gender, exemption cannot be sought for in a routine manner," he said in a 145-page order on Nalini's petition and that of the Enforcement Directorate seeking to vacate a stay granted by the court earlier.
Also holding that such an exemption was not provided under the Prevention of Money Laundering Act (PMLA), the judge directed the ED to issue fresh summons fixing a date for the investigation and proceed with it in accordance with law.
The ED had issued the summons on September 7, 2016 asking Nalini, a senior lawyer, to appear in its Kolkata office as a witness in the Saradha chit fund scam.
She was allegedly paid a legal fee of Rs 1 crore by the Saradha group for her appearances in court and the Company Law Board over a television channel purchase deal.
The high court had on September 21, 2016 stayed the summons passing interim orders on the petition by Nalini.
During the hearings, Nalini had contended that the summons was "purely politically motivated to damage her reputation."
Pointing out that receiving fee by a counsel for representing an accused was not an offence, she had said every lawyer who appears for a suspect in criminal cases charges professional fee.
Opposing her arguments, ED had submitted that Manoranjana Sinh, an accused in the case, had given a statement claiming that Rs 1 crore was given to Nalini towards professional fee.
To verify the claim, the petitioner had been summoned, it had said adding the agency believed that the fee was paid out of public money, funds collected from public as chits.
In his order, Justice Subramaniam said undoubtedly, CrpC section 160 provided an exemption to women, but in normal circumstances every such exemption can never be construed as an absolute prohibition.
"The exemptions are not mandatory and subject to the facts and circumstances of the case," he said.
The judge said the language used in CrpC 160 proviso is that "no women shall be required" to attend investigation at any place other than their residence.
"Thus, it is not as if there is a total and absolute exemption of the appearance before the Investigating Officer," he said.
Adopting the principles of constructive interpretation, this court "is of an opinion that not required means only in certain circumstances and not always, he further said.
In case where a woman was sick and unable to move, then the investigating officer shall not direct her to travel for a long distance for giving evidence or statement.
In such cases alone, CrPc 160 proviso can be invoked, the order said.
In the present case, the petitioner is a senior advocate, actively practising before the Supreme Court, as well as before various high courts across the country, the judge said.
"Such being the voluntary statement of the petitioner, this court has no reason to believe that such an exemption to be extended to the writ petitioner for the purpose of her non-participation in the investigation process by appearing in person," he added.
The judge made it clear that the nature of offences under PMLA is distinct and the course and the methods of probe to be adopted may be slightly different from that of regular offences.
"Intelligent way of investigating may be required for the purpose of culling out the truth in respect of offences of money laundering under the provisions of PMLA," he said.
"No such exemption is provided under PMLA for such persons or women. Therefore the application of CrPc, more particularly section 160, cannot be mandatory in respect of the offences prescribed under PMLA," he said.
The provisions of PMLA will have overriding effect on the general provisions provided under CrPc, he said.
Keeping in mind the specialised nature of the offences and the investigation required, a specific provision in section 50 of PMLA had been made, he said adding the attendance of a person, if necessary, can be secured.
Rejecting Nalini's contention that ED officials were incompetent to issue the summons, Justice Subramaniam referred to section 50(2) of PMLA and said officials from the range of Director till the Assistant Director of ED have the power to summon any person whose attendance was considered necessary.
In fact the authorities were empowered to summon any person for the purpose of conducting investigation, he said.