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A bench of Justice Rajnish Bhatnagar of the Delhi High Court has stayed the operation of a notice served upon 3 officers of the Enforcement Directorate (ED) by the West Bengal Police on a First Information Report lodged at the instance of Trinamool Congress leader Abhishek Banerjee.

The Court granted relief to Assistant Directors Sumant Prakash Jain, Ravish Bhardwaj and Pankaj Kumar, who sought a writ of certiorari quashing notices passed qua the petitioners in FIR No. 33 dated April 5, 2021. The officers claimed in the petition that the FIR was lodged to harass them and halt the investigation in the West Bengal illegal coal mining case in which Banerjee and his wife have been issued summons by the ED.

The petitioners, ED and its officers, submitted details of the ECIR in the illegal coal mining case before the Court and further submitted that during analysis of digital evidences shared by the Income Tax Department it was revealed that funds were transferred into overseas bank accounts of Mrs. Rujira Banerjee (then Rujira Naroola), wife of Abhishek Banerjee.

They further stated that in the prosecution complaint and remand application for two of the accused in the West Bengal coal mining case, some incriminating facts were mentioned against Abhishek Banerjee and that close on the heels of the second arrest, Banerjee had lodged FIR No. 33 under Sections 171 G, 466, 469, 474, 500, 501, 504 read with Section 34 and 120B of the Indian Penal Code, 1860 which had been registered at Kalighat P.S. Kolkata.

Counsel for ED, Central Government Standing Counsel (CGSC) Amit Mahajan pointed out that ED had issued summons to Abhishek Banerjee for appearance on three occasions, however, Banerjee had appeared on only one. It was further submitted that as soon as Banerjee was summoned on July 22 in connection with the illegal coal mining case, on the vey same day, the first impugned notice was issued by the respondents.

He further submitted that the motive behind registration of the impugned FIR and subsequent issuance of notices under Section 160(1) of Cr.P.C was only to harass the ED officers for investigating the offence against highly placed persons in the State Government of West Bengal and their suspected role in the offence of money laundering.

The State of West Bengal, on the other hand argued that a Writ petition under Article 226 cannot be filed by ED as an aggrieved person and that notices have been issued to the officers in their personal capacity, therefore, Mahajan, the CGSC cannot represent the said persons.

The Court held that on a mere reading of the provisions, it became "apparent that power of the Police Officer to require attendance of a witness is circumscribed by the words “within the limits of his own or any adjoining station”" under provisions of CrPC.

It went on to reject West Bengal's contention that the said power was in the nature of pan-India power, stating that if this was the case there was no reason for the legislature to use the terminology quoted above.

The bench also noted that if the State lacks jurisdiction itself to issue the impugned notices, its entire case falls.

The bench also rejected West Bengal's challenge to maintainability of the petition. West Bengal had claimed that the ED being the “State” itself, it cannot maintain a writ petition under Article 226. The Court noted in this regard that the petition has been filed and affirmed also by the officers who are natural persons, therefore it is very much maintainable.

Further noting that the status report on the FIR against the officers fails to directly point towards the specific role of the officers in the commission of the alleged offence in the FIR, the Court went on to stay the operation of the notices passed qua the petitioners in FIR No. 33 until further orders.

Cause Title: Directorate of Enforcement & Ors vs State of West Bengal & Ors