Plea of D K Shivakumar challenging ECIR against him not maintainable: ED

The Enforcement Directorate (ED) has filed an affidavit opposing the plea moved by Karnataka Congress leader DK Shivakumar against an Enforcement Case Information Report (ECIR) lodged against him.

The ED has stated that the petition is premature and there is no violation of the fundamental right of the petitioner. This petition is not maintainable and liable to be dismissed, the affidavit submitted.

However, during the hearing, the ED made a statement in court not to take coercive steps till the next date of the hearing. Mere recording of ECIR by giving a file number does not make a person an accused, the ED's affidavit said.

 

A division bench of Justices Mukta Gupta and Anish Dayal directed the petitioner Shivakumar to file a response to the affidavit within one week. The matter has been listed for December 2, 2022.

The division bench noted that two issues have been raised by the petitioner that firstly, Whether in view of the Supreme Court judgment in TT Anthony vs State of Kerala, a second ECIR or Investigation can be initiated when the offence is already investigated by ED in the previous investigation and a complaint is filed.

Secondly, whether Section 3 of PMLA can be invoked where the Schedule offence is Section 13(1)(e) of PC Act as the Disproportionate Assets are already in possession of the accused or any other person, the court noted.

Advocate Zoheb Hossain submitted before the court that the first issue has been dealt with in the affidavit.

The second issue will be dealt with during the argument on the petition, Hossain submitted.

He also submitted that no coercive action would be taken against the petitioner till the next date of the hearing.

Senior advocates Kapil Sibal and Mayank Jain appeared on behalf of Shivakumar.

The affidavit filed on November 22, has stated that there is no violation of any fundamental right of the Petitioner warranting interference of this Court at the stage of summons.

The primary contention of the petitioner is that the investigation by the Enforcement Directorate in ECIR/18/HIU/2020 infringes the fundamental right under Article 20(2) of the Constitution as well as Section 300 of Cr.P.C. The allegation is that the respondent is re-investigating the same offence that it had already investigated in a previous case lodged by it in ECIR/04/HILI/2018, the affidavit submitted.

In this regard, it is submitted by the ED that the two ECIRS relate to two different scheduled offences and a different set of facts.

It is submitted that both the ECIRS pertain to different cases with certain overlapping facts, which cannot be termed as re-investigation. It is further submitted that both ECIRs are based on different sets of facts.

The scheduled offences in both cases are different, and the quantum of the proceeds of crime involved is also different, the allegation made in the complaint of the Income Tax department and FIR of CBI depict different modes of generation of the crime proceeds and that role of different accused persons may come into the light, thus the Petitioner cannot claim that he has already been investigated of the same offence, it said.

It is stated in the affidavit that the powers conferred on the Enforcement Officers for the purpose of complete and effective investigation include the power to summon and to examine any person".

The law declares that every such person who is summoned is bound to state the truth. At the time of such an investigative process, the person summoned is not an accused.

Therefore, the present Petition is highly premature and it is well-settled that the Courts do not interdict the powers of investigating agencies conferred upon them by the statutes, the affidavit submitted.

The present Writ Petition is also not maintainable for the reason that it is highly premature and the petitioners cannot even be said to be 'person aggrieved' in the eyes of law at the stage of summons, it added.

The affidavit mentioned that the Supreme Court in the case of Kirit Shrimankar v. Union of India & Others and connected matters had held that seeking extraordinary constitutional writ remedy merely on account of issuance of summons at the stage of investigation is highly premature and it will be for the petitioner to work out his remedy as and when any appropriate positive action is taken against the petitioner.

It is also submitted that there is no double jeopardy and what is barred under Article 20 of the Constitution is that no person shall be prosecuted and punished for the same offence more than ones.

A Constitution Bench of the Hon'ble Supreme Court while explaining the doctrine of double jeopardy, held that in order to attract "the provisions of Article 20(2) of the Constitution there must have been both prosecution and punishment in respect of the same offence, the affidavit said.

It is also said that the words prosecuted and punished are to be taken not distributive so as to mean prosecuted or punished. Both factors must co-exist in order that the operation of the clause may be attractive.

That in light of the above, in order Article 2012 to get attracted, the petitioner must show that they have been prosecuted and punished for the same offence.

On the last date of the hearing, the bench issued notice to ED on Congress Leader DK Shivakumar's plea challenging the commencement and continuation of the ED investigation against him in an ECIR of 2020.

The petitioner DK Shivakumar contends that the ED in the impugned proceedings is re-investigating the same offence which it had already investigated in a previous case lodged by it in ECIR 2018. The impugned proceedings have been initiated in complete abuse of process of law and malafide exercise of powers vested with the respondent, stated the plea.

The investigation by the respondent (ED) in ECIR 2020 is directly infringing the constitutional right guaranteed under Article 20(2) of the Constitution of India and Section 300 of the Cr. P.C, submitted the Senior Advocate Kapil Sibal, appearing for Congress leader DK Shivakumar

The Bench of Justice Mukta Gupta and Justice Aneesh Dayal on Wednesday issued notice to the investigation agency and fixed the matter for December 15, 2022, for the next hearing.

The petition also seeks a declaration that Section 13 of the Prevention of Money Laundering (Amendment) Act, 2009 which included Section 13 of the Prevention of Corruption Act in the Schedule of the PML Act is ultra vires the Constitution of India.

The plea also stated that the predicate offence in the first ECIR was Section 120B IPC and the allegations were that the petitioner in abuse of his official position conspired with others to launder illegal money acquired during the period he served as the Minister and MLA in the State of Kamataka. The predicate offence in the 2nd ECIR alleges the acquisition of assets by the petitioner during the period between 2013 to 2018 disproportionate to his known sources of income.

This clearly shows that the investigation under the PMLA offence is identical in both cases. The respondent in the 1st ECIR had sought custody of the petitioner primarily to investigate the issue pertaining to the growth in assets of the petitioner during the period he served as the Minister and MLA in the State of Karnataka.

The commencement of fresh proceedings under the PML Act on identical facts and covering the same period is directly infringing the rights guaranteed under the Constitution more particularly A1iicle 20(2) and Article 21, plea stated.

Congress leader DK Shivakumar, a seven-time MLA in Karnataka, was booked along with Haumanthaiah, an employee at Karnataka Bhavan in New Delhi, and others over charges of corruption and money laundering under the Prevention of Money Laundering Act (PMLA).

After questioning DK Shivakumar several times, the ED arrested him on September 3, 2019, in a laundering money case and later Delhi High Court granted him bail in October 2019.

Shivakumar is presently on bail in a money laundering case registered by the Enforcement Directorate, based on a complaint filed by the Income Tax (IT) department. The I-T department, during the initial probe, had allegedly found unaccounted and misreported wealth linked to Shivakumar.