1 2025:CGHC:13936 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 1961 of 2024 Order reserved on 23/09/2024 Order delivered on 22/03/2025 Ravi Uppal S/o Late Jagdish Chandra Uppal Aged About 44 Years R/o Block-3, Plot 5, Nehru Nagar, East Bhilai (C.G.) Currently R/o P.O. Box No. 453849, Dubai United Arab Emirates ... Petitioner versus 1 - Directorate Of Enforcement Through Assistant Director, Raipur Zonal Office, A-1, Block, 2nd Floor, Pujari Chambers, Pachpedi Naka, Raipur, (C.G.) 2 - State Of Chhattisgarh Through Its Secretary To Department Of Home, Mahanadi Bhawan, Atal Nagar, Naya Raipur, Raipur (C.G.) 3 - Director General Of Police State Of Chhattisgarh, Police Head Quarter, Atal Nagar, Naya Raipur, Raipur (C.G.) ... Respondents (Cause title taken from Case Information System) For Petitioner : Mr. Kishor Shrivastava, Senior Advocate along with Mr. Ashutosh Pandey, Advocate For Respondent No.1/ED : Mr. Zoheb Hossain, Advocate (through virtual mode) and Dr. Saurabh Kumar Pande, Advocate VEDPRAKASH DEWANGAN Digitally signed by VEDPRAKASH DEWANGAN Date: 2025.03.22 19:24:49 +0530 2 For Respondents/State : Mr. Vivek Sharma, Additional Advocate General and Mr. Arpit Agrawal, Panel Lawyer Hon'ble Shri Justice Ravindra Kumar Agrawal C.A.V. Order 1. The present petition has been preferred under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023, challenging the order dated 04.09.2023 (Annexure A/1), passed by learned Special Judge (Prevention of Money Laundering Act)/4th Additional Sessions Judge, Raipur, in ED Case No. 1 of 2024, whereby the learned trial Court has issued non-bailable warrant (open-ended) against the petitioner. The petitioner has prayed the following reliefs in the instant petition: “It is, therefore, prayed that this Hon'ble Court may kindly be pleased to allow the present petition and quash order of issuance of Non-Bailable warrant and the Warrant of arrest in ECIR No. RPZO/10/2022 case titled as Satish Chandrakar Vs. Enforcement Directorate and Others, issued against the petitioner herein passed by Learned Special Court, PMLA Raipur dated 04/09/2023 in the interest of justice” 2. The brief facts of the case are that the ECIR bearing No. RPZO/10/2022, dated 06.10.2022 and amended ECIR dated 02.09.2023 has been registered against the present petitioner and other accused persons for the offence under Sections 3 and 4 of Prevention of Money Laundering Act, 2002 (hereinafter called as PMLA, 2002”). In the ECIR, it is alleged that about 6 FIRs have been registered against the various accused persons for the offences of 3 Cheating and Criminal Conspiracy, which are the scheduled offences under the PMLA, 2002. The said FIRs have been registered, whose details are given herein below: (i) FIR No. 112 of 2022, dated 30.03.2022, registered at Police Station Mohan Nagar, District Durg for the offence under Sections 120B and 420 of IPC, (ii) FIR No. 206 of 2023, dated 02.06.2023 registered at Police Station Cyber Crime, Vishakhapatnam Commissionerate, Andhra Pradesh, (iii) FIR No. 37 of 2023, dated 17.03.2023 registered at Police Station Bhilai Bhatti, District Durg for the offence under Section 420 of IPC, (iv) FIR No. 86 of 2023, dated 27.02.2023 registered at Police Station Chhavani, District Durg for the offence under Section 420 of IPC. (v) FIR No. 336 of 2023, dated 10.08.2023 registered at Police Station Gudhiyari, District Raipur for the offence under Sections 420, 34 of IPC. (vi) FIR No. 685 of 2023, dated 11.08.2023 registered at Police Station Khamtarai, District Raipur for the offence under Section 420 of IPC. 3. On 06.10.2022 the respondent/ED initiated an Enforcement Case Information Report (in short ‘ECIR’) No. RPZO/09/2022 with regard to the predicate offence bearing No. 112/2022 dated 30.03.2022 under Sections 120-B and 420 of IPC registered at Police Station Mohan Nagar, Durg, Chhattisgarh. The final report in the said FIR bearing No. 157/2022 was submitted on 29.07.2022. An addendum ECIR No. RPZO/10/2022 to the ECIR/RPZO/09/2022 was placed on record on 06.10.2022 with reference to the above-mentioned FIRs. 4. On 30.10.2023, the co-accused Shubham Soni was served with a summons in ECIR/RPZO/10/2022 claiming in which that he is 4 owner/promoter of the Mahadev Book App. On 13.11.2023, a summons under Section 50 of PMLA, 2002 bearing No. 1337, in ECIR/RPZO/10/2022 was issued by the ED from its e-mail ID “adrpzo22-ed@gov.in” to the petitioner, which was received by him in his e-mail “sourabh@empireone.ae” on 13.11.2023 itself. The said summons stipulated the date for his appearance was 15.11.2023 and only one day notice to adhere to the summon was given to the petitioner, despite knowing the fact that the petitioner is resident of Dubai. Since the petitioner was not in India, it was not possible to him to appear before the ED at Raipur, Chhattisgarh on stipulated date. On 17.11.2023, the petitioner was provided a comprehensive and detailed response to the summon received by the ED, wherein he denied his involvement in any illegal activity in India and apprehends that his name has been falsely implicated in the case. He further requested the ED to furnish the detailed particulars and grounds for issuance of summons, so that he may take necessary measures, if required. 5. On 01.09.2023, the ED issued summons under Section 50 of the PMLA, 2002 to the petitioner knowing fully well that the petitioner was detained in Australia and asked him to appear on 02.09.2023 before the ED. The next summons was again issued on 02.09.2023 and the petitioner was asked to appear on 04.09.2023. The said summons was issued for serving it at the residential address of the petitioner in India. Despite knowing the fact that he is a resident of Dubai, which is non-compliance of the guidelines of the Ministry of Home Affairs bearing No. 25016/17/2007-Legal Cell, dated 5 11.02.2009. Since the above-mentioned summons was issued at residential addresses in India, it was not served upon the petitioner and thereafter, he came to know through diverse channels that a warrant of arrest has been issued by the learned Special Court, Raipur. On 04.09.2023, the learned Special Court (PMLA-2002) Raipur, Chhattisgarh issued a non-bailable warrant (open-ended) against the petitioner for his personal appearance. This order was passed by the learned Special Court on 04.09.2023 on an application filed by the respondent/ED under Section 70 of the CRPC read with Section 65 of PMLA-2002. This order is under challenge in the present petition. 6. Subsequent to the non-bailable warrant (open-ended) issued by the Special Court (PMLA-2002), Raipur Chhattisgarh, a “Red Corner Notice” was issued by Interpol with reference No. A-10277/11-2023 on 08.11.2023 against the petitioner. On 20.10.2023, the first prosecution complaint was filed by the respondent/ED, and 03 supplementary prosecution complaints have been filed by the prosecution in the case. 7. At the outset, learned counsel for the respondent/ED would submit that in a similar matter, in which the Special Judge (PMLA) had issued the non-bailable warrant against the accused and the order issuing the non-bailable warrant was challenged by the accused before the Delhi High Court. During the proceeding, the respondent/ED, on instruction, submits that the execution of non- bailable warrant against the petitioner may be suspended till the next 6 date of hearing, if the petitioner joins the proceedings before the learned Special Court (PMLA) Raipur and executes an undertaking for the same and the non-bailable warrant may be canceled thereafter. Since, the petitioner was also willing to join the proceedings before the learned trial Court, the Delhi High Court passed the order on 30.05.2024 and kept the order dated 22.12.2023 in abeyance till the next date of hearing and directed the petitioner to join the proceeding before the learned trial Court within one week. Relying upon the order dated 30.05.2023, passed by Delhi High Court in Criminal Revision Petition No. 724/2024 and Criminal M.A. No. 16705/2022 (Sumit Chadha v. Directorate of Enforcement), learned counsel for the respondent/ED submits that similarly, if the present petitioner is willing to appear before the learned trial Court, then the execution of non-bailable warrant may be suspended till that time and then the petitioner may join the proceeding before the learned trial Court, as the Delhi High Court has done it. 8. The learned Senior Counsel appearing for the petitioner, on instruction, has not accepted the proposal given by the respondent/ ED and has submitted that the respondent/ED is lying a trap to catch the petitioner, who in any manner, is not involved in the offence. Since, the proposal given by the respondent/ED was refused by the petitioner, this Court proceeded with the further hearing of the case on merits. 9. Learned Senior Counsel appearing for the petitioner would submit that on 31.08.2023, the ED issued a summon knowing fully well that 7 the petitioner is in Australia, yet they asked him to appear on 02.09.2023. The petitioner is a citizen of Vanuatu and the Australian Authority detained him in immigration. The petitioner cannot appear on 02.09.2023 before the ED and they again issued another summon for his appearance on 04.09.2023. Thereafter, an application was moved under Section 70 of CRPC on 04.09.2023 itself and the learned Special Court has passed the order against the petitioner. He would further submit that the PMLA prescribed a procedure that has to be followed, if a person is not an accused and a person, who is an accused. The PMLA is a complete Code and the provisions of Criminal Procedure Code, 1973 does not apply and therefore the whole proceedings are null and void. He would further submit that on the basis of predicate offence, the ED can lodge ECIR and proceed. The proceed from the predicate offence become the proceeds of crime. If that proceeds of crime put in the bank and turned the illegal money as legal, it is called ‘Money Laundering’. In the original FIRs, the petitioner was not shown as an accused. The subject FIRs are run with respect to Mahadev Book App, there are certain penal operators and persons who can play the games. The allegation against the petitioner is that when the players play that games, it is called ‘gambling’ and the proceeds emerged from the gambling, it was the predicate offence. It is also alleged that certain portion of the proceeds of crime is allegedly attributed to the petitioner, which is called ‘Money Laundering’. 8 10. The ED can deal with the investigation with respect to money laundering. They are entitled to request for issuance of summons under Section 50 of PMLA-2002, which does not make a distinction who is an accused and who is not an accused. When a person is summoned under Section 50 of PMLA-2002, and if he does not answer the summon, the consequence of his not answering the summon, if he is not an accused, Section 60 of PMLA-2002 would come into play and the consequence of his not answering the summon, if he is an accused, Section 59 of PMLA-2002 would come into play. If the consequence of non-compliance of summon is provided under the PMLA-2002, the provisions of the Code of Criminal Procedure would not be applicable, and therefore, the whole proceedings are illegal. He would further submit that in every proceeding under Sub-sections (2) and (3) of Section 50 of PMLA- 2002 are the judicial proceedings within the meaning of Section 193 of CRPC. The petitioner did not know as to in what capacity, he was called. The summon under Section 50 of the PMLA-2002 can be issued to any person to appear and give statement. Section 60 of the PMLA-2002 provides that if any person willfully or maliciously giving false information, he can be punished and penalty imposed upon him. If the person to whom summon was issued, does not appear willfully, the consequence was provided under Sub-section (3) and (4) of Section 50 of PMLA-2002. Section 174 of the IPC provides that whoever being legally bound to attend a person at a certain place and time in obedience to a summon, notice, order or proclamation from any public servant, legally competent, he shall be liable to be 9 punished with imprisonment or with fine. Section 59 of PMLA-2002 provides that where a Special Court in relation to an offence under Section 4 of the PMLA-2002 desires to issue a summon to an accused, shall be served or executed at any place in any contracting state, it shall send such summon or warrant in duplicate in such form, to such Court, Judge or Magistrate through such Authorities, as the Central Government may, by notification shall cause the same to be executed and Section 63 of the PMLA-2002 deals with the summons issued by the ED. He would further submit that the petitioner was not in India and no summon can be issued to a person, who is not located in India, because the jurisdiction of the Court is circumscribed by the local police station. If the accused is outside of India, the summon can go through the Ministry of External Affairs and will be served through the Commission, where he is located and then only the person, who is served with the summon have to abide to obey. The petitioner, at the time when the summon was issued to him i.e. on 01.09.2023 was at Australia, the ED was well within knowledge that the petitioner cannot appear on 02.09.2023 and he was detained by the Australian Immigration Authority and sent back to Dubai. Again another summon was issued on 02.09.2023 and asked to appear on 04.09.2023, which is a pure mala fide exercise of powers. 11. The ED has filed its application under Section 70 of the CRPC, which does not deal with the power to arrest. The summon can only be issued by the Court under Section 59 of the PMLA-2002 and it can be served upon the party concerned under the guidelines of the Central Government. The application filed by the ED under Section 10 70 of CRPC was not maintainable and no order can be passed on the application filed by the ED. 12. He would further submit that the provisions of CRPC would apply in so far as they are not inconsistent because the provision of PMLA- 2002 for non-compliance of summon of ED is provided under Section 63 of PMLA-2002. He would also argue on Sections 16, 17 to 22 and Section 50 of PMLA-2002 by submitting that the power to search, seizure and arrest are provided under the PMLA-2002 and it is a complete Code. The summon issued under Section 50 by the ED and its non-compliance/consequence is provided under Section 63 of PMLA-2002. Under the CRPC, the ED cannot summon a person if he is not in India. The petitioner is a citizen of another country Vanuatu. There has to be a contracting state and there is no treaty between Vanuatu and India. It is also submitted by him that the Courts in India have jurisdiction over its citizen, but if he is outside India, by virtue of the fact that the Courts in India have jurisdiction over that person, they call through the treaty pursuant to the guidelines issued by the Central Government, but the ED has not followed the procedures. 13. Learned counsel for the petitioner would submit that the notices dated 01.09.2023 and 02.09.2023 were issued against the provisions of Section 105(2) of CRPC and also the circular issued by the Ministry of Home Affairs, Government of India dated 11.02.2009 (Annexure P-9). Section 105(2) of CRPC provides that if a person to whom a summon/notice is required to be issued and the said person is in a contracting state than the investigating agency is required to 11 approach the Court and after recording satisfaction that there are sufficient ground to issue summons against that person who is in a contracting state, shall issue summons in such form as the Central Government may specify on this behalf. The petitioner is a resident of Dubai and the summons dated 01.09.2023 and 02.09.2023 could not be directly issued to him nor could it be served in India. Service of summons by affixing in the address does not serve the purpose who is residing in a contracting state. He would further submit that UAE is a contracting State with India for the purpose of Section 105 of CRPC. As per the circular dated 11.02.2009, issued by the MHA, the procedure prescribed in Para 3 in the said circular is applicable, but the same has been issued in gross violation of the provisions of Section 105 of CRPC which are void ab initio. 14. It is also the submission of the learned Senior Counsel that the Special Court has failed to ascertain the manner in which the summon under Section 50 of PMLA-2002 was issued by the ED. Despite having knowledge that the petitioner is not in India, pasted the summon on the premises of the petitioner in India. He would submit that in the application filed by the respondent/ED under Section 70 of the Code of Criminal Procedure, 1973 read with Section 65 of PMLA-2002, the respondent/ED in Para 8 itself shows that the petitioner has obtained the passport of Vanuatu, then they have to proceed in accordance with the applicable laws. Articles 5, 6 and 8 of the Constitution of India provide the circumstances in which a person can obtain Indian citizenship and as per Article 9 of the Constitution of India if the person has voluntarily acquired the 12 citizenship of any foreign country, no person shall be a citizen of India. Thus, the petitioner is not an Indian citizen by virtue of Articles 5, 6 & 8 of the Constitution of India after obtaining the citizenship of Vanuatu. Since the ED himself has stated that the petitioner has obtained citizenship of Vanuatu, his Indian citizenship has been seized. Similar is the provision under the Citizenship Act, 1955. He would rely upon the judgment passed by Hon’ble Supreme Court in the matter of State of Jharkhand and Others v. Ambay Cements and Another, 2005 (1) SCC 368 and submits that if something is already prescribed, it to do in a particular manner, then it has to be done in a particular manner or it is not at all to be done and not in any other way. Learned counsel for the petitioner has also relied upon the judgment of Hon’ble Supreme Court in the matter of Opto Circuit India Ltd. v. Axis Bank, 2021 (6) SCC 707. He would also submit that even if assuming for a moment that CRPC is applicable in the case, Section 105(A)(a) contains with the definition of Contracting State. Sub-section (c) of Section 105(A) defines the proceeds of crime. When this provision was added in the year 1994, the PMLA Act, 2002 was not came into force, and as soon as the provisions came, the applicability of Chapter ‘VI’ goes and Section 105(B)(2) of CRPC will apply in the case and the procedure prescribed therein has to be followed. 15. The first summon was issued on 01.09.2023 and the second summon was issued on 02.09.2023 and he asked to appear on 04.09.2023. The learned Special Court has also failed to consider that before issuance of non-bailable warrant against the petitioner, 13 they can issue a warrant of any other nature that too only after taking cognizance of the case. The petitioner was not arrayed as accused in any of the predicate offences mentioned in the complaint case before the Special Court, the respondent/ED exercised its jurisdiction on presumption and suspicion in the absence of any concrete material against the petitioner. 16. In support of his submissions, he would rely upon the order passed by the Gujarat High Court in “Prithviraj Saremal Kothari v. P.S. Sriniwas” LNIND 2015 Gujarat, 3292, “Indermohan Goswami v. State of Uttaranchal” 2007 12 SCC 1. 17. Learned counsel for the petitioner further submit that the learned Special Court has erred in observing that the petitioner is not cooperating with the investigation, ignoring the fact that the manner in which the summon is said to have been served upon him, particularly when he was detained by Australian Immigration and the procedure adopted by ED for obtaining non-bailable warrant against the petitioner, is illegal. The learned Special Judge has failed to consider that to record the reasons for arrest is mandatory as required under Section 19 of PMLA-2002 and relying upon the judgment passed by the Hon’ble Supreme Court in the matter of Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 and Satender Kumar Antil v. CBI, (2022) 10 SCC 51 would submit that to effect an arrest, an officer authorized has to assess and evaluate the material in his possession and if the material in his possession giving rise to the reason to believe that any person has been guilty of an offence 14 under the PMLA-2002, he may arrest such person. The petitioner is neither a fugitive nor a proclaimed offender and is willing to cooperate with the respondent/ED. The petitioner is the resident of UAE since last 03 years. While carrying out of service of summons under Section 50 of PMLA-2002, dated 01.09.2023 and 02.09.2023 by affixing the same on the Indian Residence of the petitioner, did not adhere to the Ministry of Home Affairs (in short MHA) guidelines, with respect to service of summons, notices or judicial process on individual, who resided abroad. As per the said guideline, the MHA, on receipt of request will examine in view of the provisions of treaty, if exists, with the requested country in case of non-treaty country. He would also submit that the service of non-bailable warrant amounts to extradition and thus the respondent/ED has failed to properly serve the summons upon the petitioner in an effective manner. 18. The summon dated 13.11.2023, which was served through e-mail upon the petitioner had duly replied through e-mail dated 17.11.2023, by which it has been replied that the petitioner is living at UAE and there is no service of summon to the petitioner, despite that the respondent/ED has proceeded by filing its application before learned Special Court for issuance of non-bailable warrant against the petitioner. Further, relying upon the judgment passed by the Hon’ble Supreme Court in the matter of “Pankaj Bansal v. Union of India and others” 2023 SCC Online SC 1244 has submitted that being a premier investigating agency, charged with the responsibility of curbing the economic offence of money laundering in the country, every action of ED in the course of such exercise is expected to be 15 transparent and fair play in action, which is missing in the present case. Lastly, he would submit that the power must be exercised reasonably and in good faith means for legitimate reasons, but in the present case, it reflects that the action of the respondent/ED is a colourable exercise of powers, which vitiates the entire proceedings. The Special Court cannot assist the investigating agency by issuing non-bailable warrant prior to taking cognizance of the matter. There is no substantive and incriminating material available in the case, which directly implicates the petitioner as an accused in the present case. Therefore, the issuance of non-bailable warrant against the petitioner is unjustified and the impugned order is liable to be set aside. 19. Per contra, learned counsel for the respondent-ED has filed their reply and argued in the same line as per their reply and has submitted that an ECIR bearing No. RPZO/10/2022 was recorded against Mahadev Online Book and others and started an investigation under the provisions of PMLA, 2002 on the basis of the charge sheet bearing No. 157 of 2002, dated 29.07.2022 filed by the Police Station Mohan Nagar, Durg against Alok Singh Rajput, Ram Pravesh Sahu, Kharag @ Raja Singh and others. The said charge sheet was filed under Sections 120-B and 420 of IPC for being involved in online betting in live Ludo, Football, Casino Games and Marks through Mahadev Book. As per the charge sheet filed by the State Police, the raid was conducted based on secret information and the aforesaid three accused persons were arrested with a set-up of Laptops, by which they collected money by creating an online ID 16 and then with this money put bets for others through Mahadev Online Books on online Cricket match, Horse racing, Greyhound racing and Kabaddi etc. Upon interrogation, they disclosed the names of Abhishek and Pintu, who taught them about the making of online IDs and placing bets in Cricket matches and other sports through online banking. The Laptops, Mobile phones, Passbooks of various banks, Debit-Credit cards, SIM cards, cheque books and cash were seized from their premises, which gave rise to the recording of the ECIR under the PMLA, 2002. Various FIRs have been registered throughout the country for illegal online betting through Mahadev Book and one of the FIRs, bearing No. 206 of 2023 was registered by Police Station Cybercrime Vishakhapatnam Commissionerate, Andhra Pradesh on 02.06.2023 for the offence under Sections 419, 420, 467, 468, 471, 120 read with Section 34 of IPC and Sections 66-C, 66-D of Information Technology Act, 2000 and Sections 3 and 4 of Andhra Pradesh Gambling Act. As per the information of Andhra Pradesh Police, 21 persons were found running call centres for the operation of the Mahadev App and they collected money from the pouters, who intended to put the bets and deposited the money in the Bank accounts shared through WhatsApp groups. These persons have put their bets as per their choice of Online Gaming App. The money made through the App was transferred to different accounts, till it was siphoned off to the person named Sourabh Chandrakar, who lives in Dubai. The government had blocked the illegal betting website Mahadev Book. The other persons, who also resided in Dubai and are known to operate the illegal betting app along with 17 Sourabh Chandrakar. Several cases relating to fraud and illegal activities are filed against them. He would submit that when various FIRs have been registered against individuals for being involved in illegal betting operations through the Mahadev Book App and Reddy Anna App, which also contained the scheduled offences as defined under PMLA, 2002. An addendum dated 02.09.2023 to the ECIR was also made in which the FIRs have also been included in the ECIR of RPZO/10/2022. 20. During the course of the investigation, it was gathered that the present applicant had also invested in the betting website “Sky Exchange” and Harishankar Tibrewal was the co-owner and operated the “Sky Exchange” website. Harishankar Tibrewal had laundered these proceeds of crime using multiple companies operating both in India and outside India. The operations of the Indian companies were managed by the present applicant. It also revealed that the present applicant had full knowledge of the origin of the proceeds of the crime and yet he participated in this money laundering. The present petitioner has acted as the Shareholder and Director in various entities employed in the laundering of the proceeds of crime originating from the betting operations. 21. The present petitioner hails from Bhilai in Chhattisgarh, where he was running a juice shop till 2017. Suddenly, he remarkably risen in the world of illegal gambling. He is the co-owner of online betting platform Mahadev Online Book and he in association with Ravi Uppal has established a betting empire and indulged in money laundering. 18 The present petitioner and Ravi Uppal are the main beneficial owners of Mahadev Online Book. They are running their Mahadev Online Book through Massive Call Centres, where WhatsApp and telegram closed groups are operated and Bainami bank accounts are used for money transactions. They have created a huge network and keep 70% of the betting profit. They created a network in which without coming to India they are able to run these panels and managed to lure large number of penal seekers by vulgar display of their wealth. The present petitioner had spent more than 200 Crores in cash in his wedding held in Ras-al-Khaimah, UAE in February 2023. Private jets and celebrities were hired for his marriage function. Wedding planners, Dancers, Decorators, etc. were hired from Mumbai and Hawala channels were used to make payments to them. He run the Mahadev Online Book panel in Pan India Operation. 22. During the course of investigation, it was gathered that the present petitioner has obtained passport of country Vanuatu (in Oceania) and he is roaming freely using this passport. He also applied for Australian Visa on the basis of his passport of Vanuatu and he has not yet renounced his Indian citizenship and thus, he deliberately evading the investigation under PMLA-2002. He was actively involved in generating and layering the proceeds of crime and thus committed the offence of money laundering as defined under Section 3, which is punishable under Section 4 of PMLA-2002. He would further submit that the summon under Section 50 of PMLA-2002 was duly issued and served upon the petitioner. 19 Obtaining the citizenship of Vanuatu which is a small island nation, which does not have any extradition treaty with India, made it amply clear that the petitioner did not intend to join the investigation and, therefore, an application for issuance of non-bailable warrant against the petitioner was moved before the learned Special Court (PMLA) Raipur. The Special Court has the power to issue non-bailable warrant against the accused, where he failed to cooperate and deliberately avoid the process of law. Relying upon the judgment passed by the Delhi High Court in ‘Ottaviio Quattrocchi v. CBI’ 1998 SCC Online Delhi 519, he would submit that Section 73 of the CRPC confers a power upon a Magistrate to issue a warrant and that it can be exercised by him during the investigation also. During the course of investigation, the Court can issue a warrant in exercise of power thereunder to apprehend, inter alia, a person who is an accused of a non-bailable offence and is evading arrest. He would further rely upon the judgment of ‘Mrigendra Jalan v. State and another’ 2008 SCC Online Delhi 1067 and State v. Dawood Ibrahim Kaskar, 2000 (10) SCC 438, would submit that the Courts are having jurisdiction and power to issue non-bailable warrant in aid of investigation when the accused is not available for investigation despite notice at his permanent address in a case of cognizable and non-bailable offence. The person so summoned is bound to attend in person and state truth on any subject concerning which he is being examined are expected to make statement. Further relying upon the order passed by Delhi High Court in Amanatullah Khan v. Directorate of Enforcement, 2024 SCC Online Delhi 1658, he 20 would submit that the ED has the power to issue summon to any person under Section 50 of PMLA-2002 and the person so summoned is bound to attend in person or through authorized agent and to state truth upon the subject concerning, which he is expected to make statement and produced document as may be required by virtue of Section 50(3) of the PMLA-2002. 23. The issuance of non-bailable warrant against the petitioner was requested only to ensure the petitioner’s presence in the investigation. Section 19 of the PMLA-2002 was not invoked and therefore, there is no requirement of recording of reasons to believe or putting up material before the learned Special Court. When the application was filed before the learned Special Court, after going through the entire record of the case, they issued the non-bailable warrant against the petitioner by observing that the petitioner is evading his presence before the ED. He would further submit that the service of summons can be executed through the Ministry of Home Affairs if the same was to be executed at a foreign address or any other contact details of the petitioner, but in the present case, the summons has been served upon the petitioner in his Indian address. Section 65(1) of the CRPC allows for service of summons by affixing it to a house in India in cases where the person who is summoned resides outside India. He would submit that Articles 21 and 22 of the Constitution of India designed to give a protection against the act of an executive or other non-judicial authority. In Indian law, there are two types of 21 arrest, one is under a warrant of a Court under Sections 70 and 73 of the CRPC, and other is under Section 19 of the PMLA. When arrest has been made under a warrant of a Court, even the claim of a fundamental right under Articles 21 and 22 has been held to be not applied. The ED is invoked the execution of warrant of arrest by placing all materials before the Special Court for securing his presence. The ED may or may not exercise its powers under Section 19 of PMLA-2002, and it is to secure their presence in the investigation. 24. It is further submitted that the summons under Section 50 of PMLA- 2002 was duly issued to the petitioner. The petitioner was not intended to join the investigation as he has obtained citizenship of a small island Vanuatu, which does not have any extradition treaty with India and therefore, the application for non-bailable warrant was filed before the Special Court (PMLA) considering the prima facie material against the petitioner involved in money laundering activities through Mahadev Online Book. 25. Learned counsel for the respondent/ED raised a preliminary objection in the present petition that the present petition has been filed, swearing the affidavit by the power of attorney holder of the petitioner, namely Khemraj Sinha. When the petition for cancellation of non-bailable warrant issued against the petitioner is not supported by an affidavit by the petitioner himself, the same is not maintainable and liable to be dismissed without entering into the merits of the case. He would rely upon the judgment passed by the Delhi High 22 Court in Amrinder Singh @ Raja v. State of NCT of Delhi, reported in 2022 SCC Online Delhi 24, Amit Ahuja v. Gian Prakash Bhambri, reported in 2010 SCC Online P&H 4856 and T.C. Mathai and another v. District and Sessions Judge, Thiruvananthapuram, 1999 (3) SCC 614. The petitioner has challenged the issuance of non-bailable warrant against him through his power of attorney. The power of attorney is not competent to swear affidavit on behalf of the principle with respect to the fact, which was within the knowledge of the principle. The affidavit itself is faulty, which is against the procedure prescribed in Order 19 Rule 3 of Code of Civil Procedure, 1908. The affidavit shall be confined to such fact as the deponent is having his own knowledge to prove. In the present case, a number of facts, which the deponent was not having his own knowledge and such affidavit is liable to be ignored. 26. Another objection raised by the respondent/ED is that the warrant issued against the petitioner cannot be canceled in absentia. The person against whom the warrant has been issued has to present himself before the Court for the warrant to be canceled, and then only the petition can be entertained. At the very outset, an option/proposal was given to the petitioner that he may join the investigation and till then, the warrant may not be executed against him, but he denied the same. Denial of the petitioner itself shows that he is not willing to join the investigation/trial and does not want to come India. It has been held in the case of ‘Ashok Malik v. M/s. Soga Impex Pvt. Ltd. and another’ 2012 SCC Online Delhi 3464 that warrant cannot be canceled in absentia. 23 27. He would also submit that in non-cognizable offences, the police have to seek permission from the Court, but in cognizable offences, the police have their own independent power. Section 65 of the PMLA-2002 says that the provisions of the Code of Criminal Procedure will apply unless there is anything inconsistent in PMLA- 2002. The power under Section 73 of the CRPC coupled with duty given to the agency to approach the Court and have a non-bailable warrant issued in aid of investigation and arrest is an inherent part of investigation. At this juncture, he would rely upon the judgment of P. Chidambaram v. Directorate of Enforcement, 2019(9) SCC 24. Section 2(na) of the PMLA-2002 defines the investigation. Section 63(2) of the PMLA-2002 prescribed the penalty for non-compliance with the provisions of Section 50 of PMLA-2002, which provides a fine of Rs. 500/-, which may extend to Rs. 10,000/-. He would also submit that the petitioner had approached the Delhi High Court against issuance of red-corner notice, but the same has not been disclosed in the present petition, in which he is claiming for setting aside the non-bailable warrant issued against him. The petitioner has withdrawn his petition filed before the Delhi High Court on 23.07.2024. He would rely upon the judgment passed by the Hon’ble Supreme Court in the matter of State v. Dawood Ibrahim Kaskar, 2000(10) SCC 438. He would further submit that the petitioner cannot evading to answer the summons issued under Section 50 of PMLA-2002. All persons shall be bound to attend and to answer the summons. It cannot be at the choice of summoned person or violative of Article 20 24 of the Constitution of India. He would rely the judgment passed by Hon’ble Supreme Court in the matter of Directorate of Enforcement v. State of Tamil Nadu and others, reported in 2024 SCC Online SC 211. 28. It is also submitted that the present petition is legally not maintainable since it is a settled position of law that the accused should be present in person before the Court concerned for cancellation of the non-bailable warrant, for which he relied upon the judgment of ‘Ashok Malik v. M/s. Soga Impex Pvt. Ltd. and another’ 2012 SCC Online Delhi 3464. He would also submit that when a person is summoned under Section 50 of PMLA-2002, the person concerned is bound to appear and to make a statement. As per the case of ‘Vijay Madanlal Choudhary and others v. Union of India’ 2022 SCC Online SC 929, the petitioner does not assume the character of an accused. 29. Section 50 of PMLA-2002 provides that the ED is statutorily empowered to summon “any person” and it is the duty of such person to attend the same. Since the petitioner failed to appear before the ED, an application was moved by the ED requested only to ensure the petitioner’s presence in investigation. Since the provisions of Section 19 of PMLA-2002 was not invoked, there was no requirement of recording of reasons to believe or to produce the material before the Special Court. After considering the entire material produced before the learned Special Court and also under the facts and circumstances of the case, passed its order on 25 04.09.2023 and issued a non-bailable warrant against the petitioner. Since the ED did not have the foreign address or any contact details of the petitioner, he served the summons in accordance with the law at his last known address in India. Section 65(1) of the PMLA-2002 is applicable where the person to be summoned resides outside India and allows for service through the Indian Embassy or by affixing the summons to a house in India. 30. It is further submitted that in the present petition, the petitioner himself has not sworn the affidavit in support of the petition and the same has been sworn by their power of attorney, and therefore the petition is not maintainable as the power of attorney came to execute affidavit only with respect to his own personal knowledge on behalf of the principle, but he cannot swear affidavit on behalf of the principle which is not in his personal knowledge. 31. He would further submit that despite giving an option to the petitioner that he may appear before the learned Special Court and apply for cancellation of non-bailable warrant and till then, the ED will not arrest the petitioner, but they denied the said proposal, which itself shows that he did not intend to join and not to cooperate with the investigation. Therefore, the non-bailable warrant issued by the learned Special Court is well within jurisdiction, which has rightly been exercised by the learned Special Court and there is no illegality in it. Hence the petition is liable to be dismissed. 26 32. In rejoinder, learned counsel for the petitioner would submit that Section 70 of the Code of Criminal Procedure gives the procedure and Section 73 is power to arrest. The ED had filed his application under Section 70 of the CRPC and there is no conflict in Section 65 of the PMLA and Section 73 of the CRPC as Section 65 itself says that there is no conflict if the ED wants to go for a warrant, the Code will apply. The nature of search and seizure is different in the Code, and if there is a conflict, then that chapter would apply. Whether it is only a summon or warrant of arrest, it can only summon a person within the jurisdiction of the concerned prosecution agency. In the present case, the summon as well as the warrant of arrest, is not applicable to the petitioner because he was not within the local jurisdiction of the concerned agency. The petitioner challenged the warrant of arrest, the issuance of summons itself is mala fide in view of the fact that despite knowing the fact that the petitioner is detained by Australian immigration, the summon was issued to appear on 01.09.2023 then 02.09.2023 and directed to appear on 04.09.2023. The action of the respondent/ED comes under Section 73 of the CRPC. He would further submit that the judgment of Amit Ahuja v. Gian Prakash Bhambri is overruled in Mangal Dass Gautam v. State of Haryana, 2018 SCC Online P&H 8136 (Para 41). In Amit Ahuja’s case has been said to be incorrect position of law and therefore the petitioner can file a petition through his power of attorney. In the criminal proceeding, the affidavit is not required to be filed along with the petition. In another judgment, in Shankar Finance v. State of Andhra Pradesh, 2008(8) SCC 536 (Para 12, 27 15) because he is not affirming any facts, but he is challenging the issuance of warrant of arrest. The T.C. Mathai’s case (supra) is not applicable in the present case, as in T.C. Mathai’s case the power of attorney holder himself was the petitioner, but in the present case, it is not the situation. The present petition has been filed by the petitioner and in support of the petition, an affidavit has been sworn by his power of attorney holder. 33. I have heard learned counsel for the parties and perused the material annexed with the petition by the parties. 34. The respondent/ED has raised a preliminary objection regarding maintainability of the present petition on the ground that the petition has been filed through the power of attorney holder and the affidavit sworn by the power of attorney of the petitioner, which is not maintainable. In the present case, the petitioner is at Dubai who executed a power of attorney in favour of Mr. Khemraj Sinha, resident of Adivasi Colony, Kushalpur, Raipur (C.G.), who sworn an affidavit on behalf of the petitioner in the present petition. The respondent/ED has relied upon the judgment of Amrinder Singh @ Raja (supra) and in Para 7 and 8, it would rely upon the judgment of Amit Ahuja (supra) and T.C. Mathai (supra). The consideration of Amit Ahuja (supra) case has been overruled by the subsequent decision of the Division Bench of Punjab and Haryana High Court in the matter of Mangal Dass Gautam v. State of Haryana, 2018 SCC Online P&H 8136 and in Para 41, it has been held that: 28 “41. The view taken in the case of Amit Ahuja's case (supra) cannot be said to be correct for the reasons detailed above. The questions in Reference are, thus, answered as follows:- 1) Criminal proceedings under section 482 of Cr.P.C. 1973 can be filed by an accused through an Attorney but the circumstances under which it can be so filed and would be maintainable would be dependent upon various factors including facts and circumstances of that particular case, which is better left at the wisdom and discretion of the Court. ii) In the light of the answer to Question No. 1 mentioned above, Question No. 2 does not survive to be answered as it was dependent upon the answer of Question No. 1 and an offshoot of the question in a particular eventuality.” 35. Since, the consideration of Amit Ahuja’s case is overruled by the Division Bench of Punjab and Haryana High Court, the ratio laid down in Amit Ahuja’s case cannot be taken into consideration. However, in the said judgment of Amrinder Singh @ Raja’s case (supra) of Delhi High Court, the T.C. Mathai’s case has been relied upon and in Para 8 of the Amrinder Singh @ Raja’s case (supra), it has been considered that: 29 “8. In T.C. Mathai and another Vs. The District & Sessions Judge, Thiruvananthapuram, Kerala, AIR 1999 SC 1385; in para 15, it is observed as under:- "15. Section 2 of the Power of Attorney Act cannot override the specific provision of a statute which requires that a particular act should be done by a party in person. When the Code requires the appearance of an accused in a court it is no compliance with it if a power of attorney holder appears for him. It is a different thing that a party can be permitted to appear through counsel. Chapter XVI of the Code empowers the Magistrate to issue summons or warrant for the appearance of the accused. Section 205 of the Code empowers the Magistrate to dispense with "the personal attendance of accused, and permit him to appear by his pleader" if he sees reasons to do so. Section 273 of the Code speaks of the powers of the court to record evidence in the presence of the pleader of the accused, in cases when personal attendance of the accused is dispensed with. But in no case can the appearance of the accused be made through a power of attorney holder. So the contention of the appellant based on the instrument of power of attorney is of no avail in this case."” 30 36. In T.C. Mathai’s (supra), the ratio laid down in Para 15 of the judgment has been relied upon in Amrinder Singh @ Raja’s case (supra) and in Para 16, it has been observed that: “16. In this context reference can be made to a decision rendered by a Full Bench of the Madras High Court in M. Krishnammal v. T. Balasubramania Pillai (AIR 1937 Madras 937), when a person, who was the power of attorney holder of another, claimed right of audience in the High Court on behalf of his principal. A Single Judge referred three questions to be considered by the Full Bench, of which the one which is relevant here was whether an agent with the power of attorney to appear and conduct judicial proceedings has the ri court. Beasley, C.J., who delivered the judgme nt on behalf of the Full Bench stated the legal position thus: "An agent with a power of attorney to appear and conduct judicial proceedings, but who has not been so authorised by the High Court, has no right of audience on behalf of principal, either in the appellate or original side of the High Court There is no warrant whatever for putting a power of attorney given to a recognized agent to conduct proceedings in court in the same category as a vakalat given to a legal practitioner, though latter may be described as a power of attorney which is confined only to pleaders, i.e. those who have a right to plead in courts."” 31 37. In T.C. Mathai’s case, the appellant claims to be the power of attorney holder of the couple, who were living at Kuwait and he sought permission of the Sessions Court, Trivandrum to appear and plead on behalf of the said couple, who are arrayed as respondent in a criminal revision petition filed before the said Sessions Court and the Sessions Judge declined to grant permission. Thereafter, the appellant moved to the Kerala High Court under Article 226 of the Constitution of India for issuance of a direction to the Sessions Court to grant permission sought for. The Single Judge of High Court dismissed the petition filed by the appellant and the writ appeal too has been dismissed by the Division Bench of Kerala High Court and thereafter the appellant approached before the Hon’ble Supreme Court. In T.C. Mathai’s case the issue was to whether the appellant who was the power of attorney holder, can be considered to be a pleader as defined in Section 2(q) of the CRPC and whether he could be considered to be pleader under Section 303 of the CRPC. Here the case is slight different that in the present case, the petitioner executed a power of attorney in favour of Mr. Khemraj Sinha to sign, verify, affirm and file plaints, applications, revisions, appeals, affidavits, etc. or any other documents pertaining to the civil suits and criminal proceedings for defamation as required before any Court in India, who sworn affidavit in the present case, which has been filed by the petitioner. 38. When Amit Ahuja’s case has been overruled by the Division Bench of Punjab and Haryana High Court, the considerations in T.C. Mathai’s case are different than the present case and the ratio laid 32 down in Amrinder Singh @ Raja’s case (supra) is based on the aforesaid two cases of Amit Ahuja and T.C. Mathai’s case, the benefit cannot be extended to the respondent/ED by holding that the petition filed by the power of attorney holder of the petitioner, is not maintainable. 39. There is nothing on record to show that the power of attorney of the petitioner is disabled by filing affidavit in support of the petition or the petition filed through power of attorney is not maintainable. The preliminary objection regarding maintainability of the petition through power of attorney holder is not sustainable and hereby rejected. 40. The second objection of the respondent/ED that the petition is not maintainable in absentia, the respondent/ED has relied upon the judgment of Ashok Malik v. M/s. Soga Impex Pvt. Ltd. and another, 2012 SCC Online Delhi 3464. In Para 9, it has been held that: “9. First of all, warrants cannot be cancelled in absentia. For this purpose, the accused has to appear before the Court concerned. In addition to this, the learned Metropolitan Magistrate, on the date when the application under Section 70 (2) of Cr.P.C. was taken up, that is on 27.4.2012, found that the counsel representing the accused had not filed his Vakalatanama and, therefore, he had no authority to represent the accused and even the records shows that even the surety was not available at the address where he was supposed to be living. In such 33 circumstances, the Court had no other option but to issue the proclamation against the accused.” 41. In Ashok Malik’s case (supra), it was the issue that an application under Section 70(2) of CRPC was filed by the counsel representing the accused, had not filed his Vakalatnama and therefore, the Delhi High Court has held that the counsel had no authority to represent the accused and even the surety was not available at the address, where he was supposed to be living, but it is not the position in the present case. In the present case, a power of attorney executed by the petitioner, authorizing Mr. Khemraj Sinha to swear affidavit on his behalf in support of the petition and in pursuance thereof, he appointed his counsel and sworn the affidavit, therefore the facts and the issue involved in the Ashok Malik’s case is different than the facts and issue of the present case and is not applicable. 42. When the ED found sufficient evidence against the petitioner that he actively involved in the illegal operation of Mahadev Operation Book, he issued the summons under Section 50 of the PMLA-2002 to the address of the petitioner available with the ED and asked to appear on 02.09.2023 and 04.09.2023. Since the petitioner did not join the investigation, the ED apply under Section 70 of CRPC for issuance of non-bailable warrant (open-ended) against the petitioner on 04.09.2023. The petitioner had obtained citizenship of a small island nation Vanuatu, which does not have any extradition treaty or arrangement with India, clearly evident that the petitioner did not intend to join the investigation and therefore, the application for 34 issuance of non-bailable warrant was filed before the learned Special Court. The learned Special Court has ample power to issue non- bailable warrant against the accused when he failed to cooperate and deliberately avoided the process of law. In the matter of Ottaviio Quattrocchi (supra), the Delhi High Court in Para 44 has held that: “46. In paras 21 to 24 of the report, the Apex Court dealt with the extent of the power of Magistrate to order issuance of non-bailable warrant of arrest of accused/ during the course of investigation. The same reads : "21. That Section 73 confers a power upon a Magistrate to issue a warrant and that it can be exercised by him during investigation also, can be best understood with reference to Section 155 of the Code. As already noticed under this section a Police Officer can investigate into a non cognizable case with the order of a Magistrate and may exercise the same powers in respect of the investigation which he may exercise in a cognizable case, except that he cannot arrest without warrant. If with the order of a Magistrate the police starts investigation into a cognizable and non-bailable offence, (like Section 466 or 467 (Para I) of the Indian Penal Code) and if during investigation the Investigating Officer intends to arrest the person accused of the offence he has to seek for and obtain a warrant of arrest from the Magistrate. If the accused evade the arrest, the only course 35 left open to the Investigating Officer to ensure his presence would be to ask the Magistrate to invoke his powers under Section 73 and thereafter those relating to proclamation and attachment. In such an eventuality, the Magistrate can legitimately exercise his powers under Section 73, for the person to be apprehended is accused of a non-bailable offence and is evading arrest. 22. Another factor which clearly indicates that Section 73 of the Code gives a power to the Magistrate to issue warrant of arrest and that too during investigation is evident from the provisions of part 'C' of Chapter VI of the Code, which we have earlier adverted to. Needless to say the provisions of proclamation and attachment as envisaged therein is to compel the appearance of a person who is evading arrest. Now, the power of issuing a proclamation under Section 82 (quoted earlier) can be exercised by a Court only in respect of a person 'against whom a warrant has been issued by it'. In other words, unless the Court issues a warrant the provisions of Section 82, and the other sections that follow in that part, cannot be invoked in a situation where inspite of its best efforts the police cannot arrest a person under Section 41. Resultantly, if it has to take the coercive measures for the apprehension of such a person it has to approach the Court to issue 36 warrant of arrest under Section 73; and if need be to invoke the provisions of part 'C of Chapter VI. (Section 8(3) in case the person is accused of an offence under TADA). 23. Lastly, we may refer to Section 90, which appears in part 'D' of Chapter VI of the Code and expressly states that the provisions contained in the Chapter relating to summon and warrant, and their issue, service and execution shall, so far as may be, apply to every summons and every warrants of arrest issued under the Code. Therefore, when a Court issues a warrant of arrest, say under Section 155 of the Code, any steps that it may have to subsequently take relating to that warrant of arrest can only be under Chapter VI. 24. Now that we have found that Section 73 of the Code is of general application and that in course of the investigation a Court can issue a warrant in exercise of power thereunder to apprehend, inter alia, a person who is accused of a non-bailable offence and is evading arrest we need answer the related question as to whether such issuance of warrant can be for his production before the police in aid of investigation. It cannot be gainsaid that a Magistrate plays, not infrequently, a role during investigation, in that, on the prayer of the Investigating Agency he holds a test identification parade, records the confession of 37 an accused or the statement of a witness, or takes or witnesses the taking of specimen handwritings etc. However, in performing such or similar functions the Magistrate does not exercise judicial discretion like while dealing with an accused of a non-bailable offence who is produced before him pursuant to a warrant of arrest issued under Section 73. On such production, the Court may either release him on bail under Section 439 or authorise his detention in custody (either police or judicial) under Section 167 of the Code. Whether the Magistrate, on being moved by the Investigating Agency, will entertain its prayer for police custody will be at his sole discretion which has to be judicially exercised in accordance with Section 167(3) of the Code. Since warrant is and can be issued for appearance before the Court only and not before the police and since authorisation for detention in police custody is neither to be given as a matter of course nor on the mere asking of the police, but only after exercise of judicial discretion based on materials placed before him, Mr. Desai was not absolutely right in his submission that warrant of arrest under Section 73 of the Code could be issued by the Courts solely for the production of the accused before the police in aid of investigation.” 38 43. In the matter of Virbhadra Singh and another v. Directorate of Enforcement and another, 2017 SCC Online Delhi 8930, in Para 143 the Delhi High Court has concluded that: “143. ………….The powers conferred on the enforcement officers for purposes of complete and effective investigation include the power to summon and examine "any person". The law declares that every such person who is summoned is bound to state the truth. At the time of such investigative process, the person summoned is not an accused. Mere registration of ECIR does not make a person an accused. He may eventually turn out to be an accused upon being arrested or upon being prosecuted. No person is entitled in law to evade the command of the summons issued under Section 50 PMLA on the ground that there is a possibility that he may be prosecuted in the future. The law declared in Nandini Satpathy (supra) concerning the statements under Section 161 Cr.P.C. recorded by the police, and in other pronouncements concerning similar powers of officers of the Customs Department, as noted earlier, provide a complete answer to the apprehensions that have been expressed.” 44. The ED is statutorily empowered to summon any person and it is the consequent duty of such person to attend the same. In Vijay Madanlal Choudhary’s case (supra), the Hon’ble Supreme Court has discussed the scope of Section 50 and power to issue summons therein by the following observations: 39 “425. Indeed, sub-section (2) of Section 50 enables the Director, Additional Director, Joint Director, Deputy Director or Assistant Director to issue summon to any person whose attendance he considers necessary for giving evidence or to produce any records during the course of any investigation or proceeding under this Act. We have already highlighted the width of expression “proceeding” in the earlier part of this judgment and held that it applies to proceeding before the Adjudicating Authority or the Special Court, as the case may be. Nevertheless, sub-section (2) empowers the authorised officials to issue summon to any person. We fail to understand as to how Article 20(3) would come into play in respect of process of recording statement pursuant to such summon which is only for the purpose of collecting information or evidence in respect of proceeding under this Act. Indeed, the person so summoned, is bound to attend in person or through authorised agent and to state truth upon any subject concerning which he is being examined or is expected to make statement and produce documents as may be required by virtue of sub-section (3) of Section 50 of the 2002 Act. The criticism is essentially because of sub- section (4) which provides that every proceeding under sub-sections (2) and (3) shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the IPC. Even so, the fact remains that Article 20(3) or for that matter Section 25 of the Evidence Act, would come into play only when the person so summoned is an accused of any offence at the 40 relevant time and is being compelled to be a witness against himself. This position is well-established. *** 431. In the context of the 2002 Act, it must be remembered that the summon is issued by the Authority under Section 50 in connection with the inquiry regarding proceeds of crime which may have been attached and pending adjudication before the Adjudicating Authority. In respect of such action, the designated officials have been empowered to summon any person for collection of information and evidence to be presented before the Adjudicating Authority. It is not necessarily for initiating a prosecution against the noticee as such. The power entrusted to the designated officials under this Act, though couched as investigation in real sense, is to undertake inquiry to ascertain relevant facts to facilitate initiation of or pursuing with an action regarding proceeds of crime, if the situation so warrants and for being presented before the Adjudicating Authority. It is a different matter that the information 680 Supra at Footnote Nos.120 (also at Footnote No.41) 681 Supra at Footnote No.43 and evidence so collated during the inquiry made, may disclose commission of offence of money-laundering and the involvement of the person, who has been summoned for making disclosures pursuant to the summons issued by the Authority. At this stage, there would be no formal document indicative of likelihood of involvement of such person as an accused of 41 offence of money- laundering. If the statement made by him reveals the offence of money-laundering or the existence of proceeds of crime, that becomes actionable under the Act itself. To put it differently, at the stage of recording of statement for the purpose of inquiring into the relevant facts in connection with the property being proceeds of crime is, in that sense, not an investigation for prosecution as such; and in any case, there would be no formal accusation against the noticee. Such summons can be issued even to witnesses in the inquiry so conducted by the authorised officials. However, after further inquiry on the basis of other material and evidence, the involvement of such person (noticee) is revealed, the authorised officials can certainly proceed against him for his acts of commission or omission. In such a situation, at the stage of issue of summons, the person cannot claim protection under Article 20(3) of the Constitution. However, if his/her statement is recorded after a formal arrest by the ED official, the consequences of Article 20(3) or Section 25 of the Evidence Act may come into play to urge that the same being in the nature of confession, shall not be proved against him. Further, it would not preclude the prosecution from proceeding against such a person including for consequences under Section 63 of the 2002 Act on the basis of other tangible material to indicate the falsity of his claim. That would be a matter of rule of evidence.” 42 45. It is apparent from the reading of Section 50 of PMLA-2002 as well as the judgment of Vijay Madanlal Choudhary (supra) that the power conferred upon the ED by virtue of Section 50 of PMLA-2002 empowers them to summon any person whose attendance may be crucial either to give some evidence or to produce any record during the course of investigation or proceeding under the PMLA-2002. The persons, so summoned, are also bound to attend in person or through authorized agent and are required to state truth upon any subject concerning which such person is being examined or is expected to make statement and to produce document, as may be required in the case. 46. In the matter of Directorate of Enforcement v. State of Tamil Nadu (supra), the Hon’ble Supreme Court has explained the power to summon under Section 50 of PMLA-2002 and consequent duty of the person so summoned and to respond the same. In Para 5 & 6, the Hon’ble Supreme Court has held that: “5. Sub-section (3) of Section 50 thereof being relevant, reads as under:- "(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." 43 6. From the bare reading of the said provisions, it clearly transpires that the concerned officers as mentioned therein, have the power to summon any person whose attendance he considers necessary, either to give evidence or produce any record during the course of investigation or proceeding under the PMLA. Since, the petitioner - ED is conducting the inquiry/investigation under the PMLA, in connection with the four FIRS, namely (1) FIR No. 08 2018 dated 23.08.2018 registered by V&AC, Thanjavur, under Sections 120(B), 421, 409, 109 of IPC and Sections 13(1)(c), 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988 (P.C. Act) r/w 109 of IPC etc.; (II) FIR No. 03 2020 dated 20.10.2020 registered by V&AC, Dindigul under Sections 41, 109 of IPC and Section 7(a) of P.C. Act; (III) FIR No. 02 2022 dated 05.02.2022 registered by V&AC, Theni under Sections 7, 13(c), 13(1)(d)(1), 13(1)(a) r/w 13(2) and 12 of P.C. Act, Sections 120(B), 167, 379, 409, 465, 468, 471, 477 r/w 109 of IPC and Sections 7, 8(1), 13(1)(a) r/w 13(2) and 12 of PC Act, as amended; (IV) FIR No. 68/2023 dated 25.04.2023 registered by Murappanadu Police Station, Thoothukudi District, under Section 449, 332, 302 and 506(2) of IPC, and since some of the offences of the said FIRS are scheduled offences under PMLA, the same would be the investigation/proceeding under the PMLA, and the District Collectors or the persons to whom the summons are issued under Section 50(2) of the Act are obliged to respect and respond to the said summons.” 44 47. The service of summons through the Ministry of Human Affairs, Government of India is executed, if the same is to be served at a foreign address. The ED did not have the foreign address or any other contact details of the petitioner and therefore, the summons was served in accordance with the Rules at the last known address of the petitioner in India. 48. Section 73 of the CRPC gives power to the Magistrate to issue warrant against an accused of a non-bailable offence, who is evading his arrest. The arrest of an accused is an interior part of investigation. It is necessary to reproduce Section 73 of CRPC hereinbelow: “73. Warrant may be directed to any person. (1) The Chief Judicial Magistrate or a Magistrate of the first class may direct a warrant to any person within his local jurisdiction for the arrest of any escaped convict, proclaimed offender or of any person who is accused of a non-bailable offence and is evading arrest. (2) Such person shall acknowledge in writing the receipt of the warrant, and shall execute it if the person for whose arrest it was issued, is in, or enters on, any land or other property under his charge. (3) When the person against whom such warrant is issued is arrested, he shall be made over with the warrant to the nearest police officer, who shall cause him to be taken before a Magistrate 45 having jurisdiction in the case, unless security is taken under section 71.” 49. Para 22 of Dawood Ibrahim Kaskar’s case is relevant here to support the powers of the Magistrate under Section 73 of the CRPC, which reads as under: “22. Another factor which clearly indicates that Section 73 of the Code gives a power to the Magistrate to issue warrant of arrest and that too during investigation is evident from the provisions of part `C' of Chapter VI of the Code, which we have earlier adverted to. Needless to say the provisions of proclamation and attachment as envisaged therein is to compel the appearance of a person who is evading arrest. Now, the power of issuing a proclamation under Section 82 (quoted earlier) can be exercised by a Court only in respect of a person `against whom a warrant has been issued by it'. In other words, unless the Court issues a warrant the provisions of Section 82, and the other Sections that follow in that part, cannot be invoked in a situation where inspite of its best effects the police cannot arrest a person under Section 41. Resultantly, if it has to take the coercive measures for the apprehension of such a person it has to approach the Court to issue warrant of arrest under Section 73; and if need be to invoke the provisions of part `C' of Chapter VI. [Section 8 (3) in case the person is accused of an offence under TADA] ” 46 50. In Para 69 of the case of P Chidambaram v. Directorate of Enforcement (supra), the Hon’ble Supreme Court has considered that the arrest is a part of procedure of the investigation to secure not only the presence of the accused, but several other purposes. In Para 74 and 75, the Hon’ble Supreme Court has held that: “72. Ordinarily, arrest is a part of the process of the investigation intended to secure several purposes. There may be circumstances in which the accused may provide information leading to discovery of material facts and relevant information. Grant of anticipatory bail may hamper the investigation. Pre- arrest bail is to strike a balance between the individual’s right to personal freedom and the right of the investigating agency to interrogate the accused as to the material so far collected and to collect more information which may lead to recovery of relevant information. In State Rep. By The CBI v. Anil Sharma (1997) 7 SCC 187, the Supreme Court held as under:- “6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well 47 protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third- degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders.” 73. Observing that the arrest is a part of the investigation intended to secure several purposes, in Adri Dharan Das v. State of W.B. (2005) 4 SCC 303, it was held as under:- “19. Ordinarily, arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime. There may be circumstances in which the accused may provide information leading to discovery of material facts. It may be necessary to curtail his freedom in order to enable the investigation to proceed without hindrance and to protect 48 witnesses and persons connected with the victim of the crime, to prevent his disappearance, to maintain law and order in the locality. For these or other reasons, arrest may become an inevitable part of the process of investigation. The legality of the proposed arrest cannot be gone into in an application under Section 438 of the Code. The role of the investigator is well defined and the jurisdictional scope of interference by the court in the process of investigation is limited. The court ordinarily will not interfere with the investigation of a crime or with the arrest of the accused in a cognizable offence. An interim order restraining arrest, if passed while dealing with an application under Section 438 of the Code will amount to interference in the investigation, which cannot, at any rate, be done under Section 438 of the Code.”” 51. It is well settled that the Courts must adopt that construction, which shall suppress the mischief and advance the remedy. From perusal of Section 105(A) in Chapter VII-A of the CRPC would make it clear that the provisions have been incorporated with the intention to curve mischief or completely eliminate terrorist activity and international crimes otherwise, there was no reason to have been enacted Chapter VII-A of the CRPC. The provisions of Chapter VII-A of the CRPC are in effect, supplemental to the other provisions of Section 166-A and 166-B of the CRPC and have nothing to do with investigation into general offences. The conjoint reading of the 49 definition of Section 105-A of CRPC, which includes “contracting state” and other provisions of Chapter VII-A of the CRPC would show that the same can be invoked only with respect to the offence within those two countries between whom reciprocal arrangements exit or treaties have been executed and not for those offences, which are committed within the territory of India. The provisions of Section 105- A can be invoked only when it pertains to two contracting states, which means that any country outside India on one hand on Indian territory on the other hand, if there exists a treaty between the two countries. The petitioner has obtained the citizenship of the other country, Vanuatu, with which there is no extradition treaty with India. The submissions made by learned counsel for the petitioner do not impress this Court to consider the same with the impugned order passed by the learned trial Court. 52. The Explanation (1) to Section 44 of the PMLA-2002 has also been considered in Vijay Madanlal Choudhary’s case (supra) and in Para 368, it has been considered that: "368. ………..As a matter of fact, this insertion is only a clarificatory provision, as is evident from the opening statement of the provision which says that “for the removal of doubts, it is clarified that”. None of the clauses inserted by this amendment travel beyond the principal provision contained in Clause (d). Clause (i) of the Explanation enunciates that the jurisdiction of the Special Court while dealing with the offence being tried under this Act, shall not be dependent upon any orders passed in respect of the scheduled 50 offence, and the trial of both sets of offences by the same Court shall not be construed as joint trials. This, in fact, is reiteration of the earlier part of the same section, which envisages that even though both the trials may proceed before the same Special Court, it must be tried separately as per the provisions of the 1973 Code.” 53. In the present case, the investigation conducted by the State Police in FIR No. 206 of 2023 registered at Police Station Cyber Crime, Vishakhapatnam Commissionorate under the scheduled offences, which revealed that the money made via the app was transferred to different accounts till it was siphoned off to a person named Sourabh Chandrakar, a native of Chhattisgarh, who presently lives in Dubai. The government had blocked illegal betting website of Mahadev Online Book. Along with Sourabh Chandrakar, his other associates Ravi Uppal, Kapil Chelani, Satish Kumar and others also reside in Dubai and are known to operate about 60 illegal offshore gambling websites, such as Lotus-365, Fair play, Reddy Anna Book, Laser Book, Tiger exchange, Bet Book-247 and Gold-365, etc. The FIR was one of scheduled offences included in the ECIR recorded in respect of the petitioner. Statements of the close friends and associates of the petitioner were recorded under Section 50 of PMLA-2002 and they disclosed that the petitioner is one of the main promoters of Mahadev Online Book and this was further corroborated by the digital evidence gathered during investigation. Considering all these evidences, learned Special Court, on being application made by the ED, issued non-bailable warrant against the petitioner, and the 51 learned Special Court has rightly exercised its jurisdiction to issue said non-bailable warrant. It is settled law that the provisions of PMLA-2002 are not limited to the accused named in the criminal activity relating to the scheduled offence, but it would apply to any person if he is involved in any process or activities connected with the proceeds of crime and as per the investigation, the petitioner was found involved in possession of proceeds of crime, emanating out of the operation of Mahadev Online Book. 54. For the foregoing reasons, I do not find any ground to disagree with the order dated 04.09.2023, passed by the learned Special Court (PMLA-2002), by which the non-bailable warrant (open-ended) is issued against the petitioner and to interfere with the same. 55. In the result, the petition fails and is hereby dismissed. Sd/- (Ravindra Kumar Agrawal) Judge ved