# Anil Tuteja v. S.H.O. & Ors

- **Citation:** (2024) 10 ILRA 538
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-10-04
- **Case number:** Criminal Misc. Writ Petition No. 6236 of 2024
- **Bench:** Siddhartha Varma, Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anil-tuteja-v-s-h-o-ors-51191
- **Pages:** 23

## Headnote

Criminal Law - Constitution of India,
1950-Article 226-Quashing of FIR-Whether
when the prosecution complaint filed by the
Enforcement Directorate had been quashed by
the Supreme Court, would the St.ments made
under Section 50 of the PML Act, 2002 of
various witnesses continue to form the basis of
F.I.R. which was to be lodged on the basis of
the communication passed on to the St. under
Section 66(2) of the PML Act? Answer-St.ments
which are in the knowledge of an investigating
agency can always be used for initiating or for
furthering of any pending investigation. It of
course need not be used for the purposes of a
trial and definitely they could not be categorized
as confessions or admissions. (Para 29)

Petition dismissed. (E-15)

List of Cases cited:

## Text

_Characters 0–39,783 of 70,837. This is a partial read: ask again with offset=39783 for what follows._

538 INDIAN LAW REPORTS ALLAHABAD SERIES
(2024) 10 ILRA 538
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.10.2024`

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Misc. Writ Petition No. 6236 of 2024
along with other connected cases

Anil Tuteja ...Petitioner
Versus
S.H.O. & Ors. ...Respondents

Counsel for the Petitioner:
Saksham Srivastava, Vinayak Mithal

Counsel for the Respondents:
G.A., Jitendra Prasad Mishra, Pawan Kumar
Srivastava

Criminal Law - Constitution of India,
1950-Article 226-Quashing of FIR-Whether
when the prosecution complaint filed by the
Enforcement Directorate had been quashed by
the Supreme Court, would the St.ments made
under Section 50 of the PML Act, 2002 of
various witnesses continue to form the basis of
F.I.R. which was to be lodged on the basis of
the communication passed on to the St. under
Section 66(2) of the PML Act? Answer-St.ments
which are in the knowledge of an investigating
agency can always be used for initiating or for
furthering of any pending investigation. It of
course need not be used for the purposes of a
trial and definitely they could not be categorized
as confessions or admissions. (Para 29)

Petition dismissed. (E-15)

List of Cases cited:

1.
Prem
Prakash
Vs
U.O.I.through
the
Directorate of Enforcement 2024 SCC OnLine
2270

2. St. of Punjab Vs Davinder Pal Singh Bhullar
(2011) 14 SCC 770
3. St. of Haryana & ors.Vs Bhajan Lal & ors. AIR
1992 SC 604

4. Lovely Salhotra & anr.Vs St. (NCT) of Delhi &
anr. (2018) 12 SCC 391

5. St. of Punjab Vs Davinder Pal Singh Bhullar
(2011) 14 SCC 770

6. Vijay Madanlal Choudhary & ors.Vs U.O.I.&
ors. reported in 2022 SCC OnLine 929 [AIR 2022
SL (Supp) 1283

7. M/s IREO Private Limited Vs U.O.I.& anr.

8. Angad Singh Makkar Vs U.O.I.& ors. CRMM5228-2024

9. Central Bureau of Investigation Vs V.C.
Shukla & anr.(1998) 3 SCC 410

10. Kanda Padayachi @ Kandaswamy Vs St. of
Tamil Nadu 1971 (2) SCC 641

11. Nandani Satpathy Vs P.L. Dani & anr. (1978)
2 Supreme Court Cases

(Delivered by Hon'ble Siddhartha Varma, J.)

1. Criminal Misc. Writ Petition
No.6236 of 2024 (Anil Tuteja vs. Station
House Officer & Ors.) has been filed with
the following prayers:

"A. Issue appropriate writ,
order or direction to quash the FIR
dated
30.7.2023
bearing
FIR
No.196/2023 dated 30.7.2023 u/s
420, 468, 471, 473, 484, 120-B IPC
PS Kasna, District Greater Noida,
Uttar Pradesh ("Impugned FIR")
registered by the Respondent No.1
and all consequential proceedings
emanating therefrom;
B. Issue appropriate writ,
order or direction to stay the
operation and effect of the FIR
dated
30.7.2023
bearing
FIR
No.196/2023 dated 30.7.2023 u/s
10 All. Anil Tuteja Vs. S.H.O. & Ors.
539
420, 468, 471, 473, 484, 120-B IPC
PS Kasna, District Greater Noida,
Uttar Pradesh ("Impugned FIR")
registered by the Respondent No.1
and
all
investigations
and
proceedings emanating therefrom;
C. Issue appropriate writ,
order or direction to quash the
Impugned Letter dated 28.07.2023
along with all consequential actions
and
proceedings
emanating
therefrom as being illegal and in
contempt of the Orders of the
Hon'ble Supreme Court."

2. Criminal Misc. Writ Petition
No.6194 of 2024 (Anwar Dhebar vs. State
of U.P. & Ors.) has been filed with the
following prayers :-

"I. Issue appropriate writ,
order or direction to quash the FIR
dated
30.7.2023
bearing
FIR
No.196/2023 dated 30.7.2023 u/s
420, 468, 471, 473, 484, 120-B IPC
PS Kasna, District Greater Noida,
Uttar Pradesh ("Impugned FIR")
registered by the Respondent No.3
and
all
consequential
actions/proceedings/ investigations
emanating therefrom;
II. Issue appropriate writ,
order or direction to stay the
operation and effect of the FIR
dated
30.7.2023
bearing
FIR
No.196/2023 dated 30.7.2023 u/s
420, 468, 471, 473, 484, 120-B IPC
PS Kasna, District Greater Noida,
Uttar Pradesh ("Impugned FIR")
registered by the Respondent No.3
and all actions/ investigations and
proceedings emanating therefrom;
III. Issue appropriate writ,
order or direction to quash the
Impugned Letter dated 28.07.2023
along
with
all
consequential
actions/proceedings/investigations
emanating
therefrom
as
being
illegal and in violation of the
Orders of the Hon'ble Supreme
Court."

3. Similarly, Criminal Misc. Writ
Petition No.6195 of 2024 (Arun Pati
Tripathi vs. State of U.P. & Ors.) has been
filed with the following prayers :

"I. Issue appropriate writ,
order or direction to quash the FIR
dated
30.7.2023
bearing
FIR
No.196/2023 dated 30.7.2023 u/s
420, 468, 471, 473, 484, 120-B IPC
PS Kasna, District Greater Noida,
Uttar Pradesh ("Impugned FIR")
registered by the Respondent No.3
and
all
consequential
actions/proceedings/ investigations
emanating therefrom;
II. Issue appropriate writ,
order or direction to stay the
operation and effect of the FIR dated
30.7.2023 bearing FIR No.196/2023
dated 30.7.2023 u/s 420, 468, 471,
473, 484, 120-B IPC PS Kasna,
District Greater Noida, Uttar Pradesh
("Impugned FIR") registered by the
Respondent No.3 and all actions/
investigations
and
proceedings
emanating therefrom;
III. Issue appropriate writ,
order or direction to quash the
Impugned Letter dated 28.07.2023
along
with
all
consequential
actions/proceedings/investigations
emanating therefrom as being illegal
and in violation of the Orders of the
Hon'ble Supreme Court."

4. Niranjan Das, another accused
in the First Information Report which has
540 INDIAN LAW REPORTS ALLAHABAD SERIES
been impugned in the above writ petitions,
has filed Criminal Misc. Writ Petition
No.7389 of 2024 and the prayers made in
the writ petition are as follows :-

"A. Issue appropriate writ,
order or direction to quash the FIR
bearing Case Crime No.196/2023
dated 30.7.2023 u/s 420, 468, 471,
473, 484, 120-B IPC registered by
PS Kasna, Greater Noida, Gautam
Budh Nagar, Uttar Pradesh with
Sec. 467 IPC and Sec. 7 of the
Prevention
of
Corruption
Act
having been added subsequently
("Impugned FIR") and all the
consequential
proceedings
emanating there from;
B. Issue appropriate writ,
order or direction to stay the
operation and effect of the FIR
bearing FIR No.196/2023 dated
30.7.2023 u/s 420, 468, 471, 473,
484, 120-B IPC registered by PS
Kasna, Greater Noida, Gautam
Budh Nagar, Uttar Pradesh with
Sec. 467 IPC and Sec. 7 of the
Prevention
of
Corruption
Act
having been added subsequently
("Impugned FIR") registered by the
Respondent
No.1
and
all
investigations
and
proceedings
emanating there from;
C. Issue appropriate writ,
order or direction to quash the
Impugned Letter dated 28.07.2023
along with all consequential actions
and
proceedings
emanating
therefrom as being illegal and in
contempt of the Orders of the
Hon'ble Supreme Court."

5. The question which requires to
be answered in the above writ petitions
would be - Whether when the prosecution
complaint
filed
by
the
Enforcement
Directorate had been quashed by the
Supreme Court, would the statements made
under Section 50 of the PML Act, 2002 of
various witnesses continue to form the
basis of F.I.R. which was to be lodged on
the basis of the communication passed on
to the State under Section 66(2) of the PML
Act.

6. On 26.2.2020, the Income Tax
Department carried out certain search and
seizure operation on the premises owned by
the petitioner Anil Tuteja. On 1.3.2020
statements were recorded by the Income
Tax Department of various individuals.
Thereafter on 11.5.2020, Case No.1183 of
2022 was filed by the Department before
the Court of Additional Chief Metropolitan
Magistrate, Tees Hajari, New Delhi under
sections 276(C), 277, 278, 278E of the
Income Tax Act read with sections 120-B,
191, 199, 200 and 204 of Indian Penal
Code for the Assessment Year 2020-21.
Based on this Income Tax Complaint, the
Enforcement Directorate (henceforth called
the "ED") which finds its existence because
of a notification issued under section 49(3)
of the Prevention of Money Laundering
Act, 2002 (hereinafter referred to as the
"PML
Act,
2002")
registered
an
Enforcement Case Information Report
(henceforth
called
the
"ECIR")
on
18.11.2022 alleging that a liquor scam in
the State of Chhatisgarh had come to light.
This
was
numbered
as
ECIR/RPZO/11/2022 (hereinafter referred
to as "ECIR-11"). In the meantime, on
6.4.2023,
the
Additional
Chief
Metropolitan
Magistrate
returned
the
income tax complaint for the lack of
territorial jurisdiction. This was done by the
order dated 6.4.2023 and this was also
appealed against by the Income Tax
Department. There was since now an
10 All. Anil Tuteja Vs. S.H.O. & Ors.
541
ECIR-11 registered against Anil Tuteja,
Yash Tuteja, Smt. Saumya Chaurasia,
Anwar Dhebar, Nitesh Purohit, Vikas
Aggarwal alias Sabu, Vikas Aggarwal, CA,
Mandeep Chawla, Siddharth Singhania and
M/s. Lingraj Suppliers Pvt. Ltd., certain
accused persons filed various writ petitions
before the Supreme Court. Yash Tuteja and
Anil Tuteja filed a writ petition under
Article 32 of the Constitution of India
being Writ Petition No.153 of 2023.
Siddharth Singhania filed Writ Petition
No.217 of 2023; Anwar Dhebar filed Writ
Petition No.208 of 2023 and similarly Arun
Pati Tripathi filed Writ Petition No.216 of
2023. When these writ petitions were filed
they were connected to each other. When
Yash Tuteja and Anil Tuteja had filed their
writ petition being Writ Petition No.153 of
2023, the Supreme Court on 28.4.2023
protected them from any coercive action
being taken by the ED. This writ petition
was directed to be listed on 18.7.2023. The
order dated 28.4.2023 passed by the
Supreme Court is reproduced here as under
:-

"Issue notice.
Learned ASG appearing for
the respondent accept notice.
Counter affidavit be filed
within four weeks.
Rejoinder be filed within
two weeks, thereafter.
Learned senior counsel for
the petitioner(s) submits that the
allegation is about offences under
the Income Tax Act so far as the
predicated offence is concerned and
the cognizance has not been taken
by the competent Court. At this
stage, he only seeks protection so
far
as
any
coercive
step
is
concerned and submits that he has
already joined the investigation.
No coercive steps be taken
against the petitioner(s) till the next
date.
List on 18th July, 2023."

7. Thereafter on 18.7.2023, when
the writ petition of Yash Tuteja was taken
up, by that time all the other writ petitions
were connected to the writ petition of Yash
Tuteja and on that date the Supreme Court
further extended the interim order and had
also
directed
that
the
respondentAuthorities were to stay their hands off in
all manner. The order dated 18.7.2023 is
being reproduced here as under :

"On
hearing
learned
counsel for the parties it transpires
that the complaints having been
returned, the income tax authorities
having taken that to a further Court
in appeal and there being any
absence of stay, apart from the
order already passed of no coercive
action, the concerned respondent
authorities must stay their hands in
all manner. Ordered accordingly.
On our query of learned
ASG, we clarify that if the stay is
obtained qua that order, it is open
to the respondents to move this
Court for obtaining appropriate
order."

8. Thereafter while the interim orders
were pending, on 28.7.2023 the ED
purportedly under section 66(2) of the PML
Act, 2002 wrote to the Additional Director
General of Police, Special Task Force, UP
Police, Lucknow, Uttar Pradesh and shared
certain information in respect of a company
called M/s. Prizm Holography & Security
Films
Pvt.
Ltd.,
Noida.
This
communication purportedly sent under
section 66(2) of the PML Act, 2002 was
542 INDIAN LAW REPORTS ALLAHABAD SERIES
taken cognizance of by the Police and an
FIR was lodged by the U.P. Police on
30.7.2023 which gave rise to Case Crime
No.196/2023. The FIR was specifically
lodged against Arunpati Tripathi, ITS,
Special Secretary, Excise; Niranjan Das,
IAS, Excise Commissioner; Anil Tuteja,
IAS, Vidhu Gupta and Anwar Dhebar.
While the FIR was pending on 7.8.2023 the
Supreme Court, upon being informed that
with regard to the issuing of duplicate
holograms an FIR had been lodged which
had given rise to Case Crime No.196/2023,
had directed the U.P. Police not to take any
coercive steps till the next date of listing of
the writ petitions. The Supreme Court had,
however,
not
interfered
with
the
investigation. The order dated 7.8.2023
passed by the Supreme Court is being
reproduced here as under :-

"Learned senior counsel for
the petitioner contends that the
liquor scam is being investigated in
file No.ECIR/RPZO/11/2022. He
submits that the issue of duplicate
holograms which is sought to be
raised in the FIR No.0196 dated
30.7.2023 is something which came
to the notice of the ED much earlier
and it forms a part of the counter
affidavit.
It is further submitted that
the endeavour is to circumvent the
order of this Court dated 18.7.2023.
Learned ASG submits that
this is a different offence not
connected with the issue of income
tax and thus under Section 66(2)
PMLA, 2002, the ED was duty
bound to bring to the notice of the
concerned agency, which is what was
done.
On our query as to when
these aspects came to the notice of
the ED, learned ASG seeks a short
accommodation
to
obtain
instructions.
List on 21.8.2023.
The Uttar Pradesh Police
may not take any coercive steps till
the next date though we are not
impeding the investigation."

9. Thereafter on 21.8.2023 when the
case was taken up before the Supreme Court
then it had only continued the order dated
7.8.2023 till the next date of listing.

10. In the meantime, the ED on
4.7.2023 had already filed its prosecution
complaint against 7 persons namely Anwar
Dhebar, Arun Pati Tripathi, Trilok Singh
Dhillol, Nitesh Purohit, Arvind Singh and
M/s. Petrosun Bio Refinery Pvt. Ltd. One
more legal entity was roped in and it was
known by the name of M/s. Dhillon City
Mall Pvt. Ltd. When thereafter the writ
petitions of Yash Tuteja, Siddharth Singhania,
Anwar Dhebar and Arun Pati Tripathi were
finally heard by the Supreme Court, the latter
by its judgment and order dated 8.4.2024
disposed of Writ Petition No.153 of 2023 and
Writ Petition No.217 of 2023 with no specific
order or direction as in both the writ petitions
no prosecution complaint had been filed by
the ED. So far as the ECIR-11 was concerned
viz.-a-viz. Anwar Dhebar and Arun Pati
Tripathi, the prosecution complaint pursuant
to the ECIR-11 stood quashed. The ground
taken by the Supreme Court was that since
there was no scheduled offence on the basis
of which the ECIR-11 had been filed, the
same had to be quashed. For ready reference,
paragraph nos.9 and 10 of the judgment and
order of the Supreme Court dated 8.4.2024
are being reproduced here as under :-

"9. Hence, we passed the
following order :
10 All. Anil Tuteja Vs. S.H.O. & Ors.
543
(i) Writ
Petition
(Crl.)
Nos.153/2023 and 217/2023 are
disposed of;
(ii) The complaint based on
ECIR/RPZO/11/2022, as far as the
second petitioner (Anwar Dhebar)
in Writ Petition (Crl.) No.208/2023
is concerned, is hereby quashed.
The writ petition is, accordingly,
partly allowed;
(iii) The complaint based
on ECIR/RPZO/11/2022, as far as
the petitioner (Arun Pati Tripathi)
in Writ Petition (Crl.) No.216/2023
is concerned, is hereby quashed.
The writ petition is, accordingly,
allowed.
(iv) There will be no order
as to costs; and
(v) Pending applications,
including
those
seeking
impleadment,
are
disposed
of
accordingly.
10. We may note that the
petitioners in Writ Petition (Crl.)
No.153/2023 and the petitioner in
Writ Petition (Crl.) No.217/2023
have not been shown as accused in
the complaint. Only the second
petition in Writ Petition (Crl.)
No.208/2023 and the petitioner in
Writ Petition No.216/2023 have
been shown as accused in the
complaint. In the case of those
petitioners who are not shown as
accused in the complaint, it is
unnecessary to entertain the Writ
Petitions since the complaint itself
is being quashed."

11. The paragraph 12 of the
aforesaid judgment dated 8.4.2024 had,
however, left it open to the petitioners therein
to challenge the FIR dated 30.7.2023 lodged
by the State of Uttar Pradesh on the basis of
the communication of the ED dated
28.7.2023 and for the petitioners in the writ
petitions the benefit of the interim order
which was granted to them on 7.8.2023 was
continued for a period of three weeks.
Resultantly, the Criminal Misc. Writ Petition
No.6236 of 2024 (Anil Tuteja vs. Station
House Officer & Ors.); Criminal Misc. Writ
Petition No.6194 of 2024 (Anwar Dhebar vs.
State of U.P. & Ors.); Criminal Misc. Writ
Petition No.6195 of 2024 (Arun Pati Tripathi
vs. State of U.P. & Ors.) and Criminal Misc.
Writ Petition No.7389 of 2024 (Niranjan Das
vs. State of U.P. & Ors.) were filed.

12. To make the record straight, we
may mention that while the ECIR-11 was
pending, an FIR was also lodged in the State
of Chhattisgarh on 17.1.2024 and that had
given rise to Case Crime No.04/2024 at
Chhatisgarh. This FIR was also lodged on the
basis of an information of the ED sent on
11.7.2023. A writ petition had been filed, it
has been informed by means of the
Supplementary
Affidavit,
which
was
dismissed on 20.8.2024 by the Chhatisgarh
High Court. It has also been informed that
against the order dated 20.8.2024 passed by
the Chhattisgarh High Court, a Special Leave
Petition being SLP No.11790 of 2024 has
been filed before the Supreme Court. This
SLP is still pending.

13. Sri Siddharth Dave, learned
Senior Counsel assisted by Sri Saksham
Srivastava and Sri Vinayak Mithal, learned
counsel appearing for the petitioners has
made the following submissions while
challenging the FIR dated 30.7.2023 and
the communication of the ED dated
28.7.2023 :-

(i) The ECIR-11 when was
initiated, certain statements were
recorded under Section 50 of the
544 INDIAN LAW REPORTS ALLAHABAD SERIES
PML
Act,
2002.
When
the
communication dated 28.07.2023
was sent by the ED for State of
Uttar Pradesh on the basis of which
the FIR No. 196 of 2023 on
30.07.2023
was
lodged,
the
statements were in existence but
thereafter when the prosecution
complaint dated 04.07.2023 as was
filed by the ED was quashed by the
Supreme Court on 08.04.2024 then
all the statements made under
Section 50 of the PML Act, 2002
got washed away and no reliance
thereafter could be placed on those
statements and, therefore, the FIR
was without any basis.
(ii) Learned counsel for the
petitioner thereafter submitted that
the
statements
recorded
under
Section 50 of the PML Act, 2002
could be used only for the purposes
of the proceedings under the PML
Act, 2002 itself and that they could
not have been used for the purposes
of initiating criminal proceedings
afresh by the State of Uttar
Pradesh. Relying upon a judgment
of the Supreme Court in Prem
Prakash vs. Union of India
through
the
Directorate
of
Enforcement reported in 2024
SCC
OnLine
2270,
learned
counsel has submitted that not only
the
statements
recorded
under
Section 50 of the PML Act, 2002
could not be used for the purposes
of the lodging of a separate FIR
under the IPC it also could not be
used for the purposes of initiating a
subsequent ECIR by the ED itself.
In this regard, learned counsel for
the
petitioner
relied
upon
paragraphs 24, 25, 26 and 32 of
that judgement. The paragraphs
mentioned
above
are
being
reproduced here as under :-
"24.
Vijay
Madanlal
Choudhary (supra) though held that
the authorities under the PMLA are
not police officers, did anticipate a
scenario where in a given case, the
protection of Section 25 of the
Evidence Act may have to be made
available to the accused. The Court
observed that such situations will
have to be examined on a case-tocase basis. We deem it appropriate
to extract Para 172 of Vijay
Madanlal Choudhary (supra).
"172. In other words, there
is stark distinction between the
scheme of the NDPS Act dealt with
by this court in Tofan Singh (supra)
and that in the provisions of the
2002 Act under consideration.
Thus, it must follow that the
authorities under the 2002 Act are
not police officers. Ex-consequenti,
the statements recorded by the
authorities under the 2002 Act, of
persons involved in the commission
of the offence of money-laundering
or the witnesses for the purposes of
inquiry/investigation, cannot be hit
by the vice of article 20(3) of the
Constitution or for that matter,
article
21
being
procedure
established by law. In a given case,
whether the protection given to
the
accused
who
is
being
prosecuted for the offence of
money-laundering, of section 25
of the Evidence Act is available
or not, may have to be considered
on case-to-case basis being rule of
evidence." (Emphasis supplied)
25. This Court in Vijay
Madanlal
Choudhary
(supra)
anticipated the myriad situations
10 All. Anil Tuteja Vs. S.H.O. & Ors.
545
that may arise in the recording of
the Section 50 statement and
discussed
the
parameters
for
dealing with them. In Rajaram
Jaiswal vs. State of Bihar, AIR
1964 SC 828, a judgment quoted in
extenso
in
Vijay
Madanlal
Choudhary
(supra),
this
Court
observed
that
the
expression
"police officer" in Section 25 of the
Evidence Act is not confined to
persons who are members of the
regularly constituted police force.
Further, setting out the test for
determining whether an officer is a
"police officer" for the purpose of
Section 25 of the Evidence Act, this
Court in Rajaram Jaiswal (supra)
held (quoted from para 165 of
Vijay Madanlal Choudhary (supra)
"165(ii) It may well be that
a statute confers powers and
imposes duties on a public servant,
some of which are analogous to
those of a police officer. But by the
reason of the nature of other duties
which he is required to perform he
may be exercising various other
powers also. It is argued on behalf
of the State that where such is the
case the mere conferral of some
only of the powers of a police
officer on such a person would not
make him a police officer and,
therefore, what must be borne in
mind is the sum total of the powers
which he enjoys by virtue of his
office as also the dominant purpose
for which he is appointed. The
contention thus is that when an
officer has to perform a wide range
of
duties
and
exercise
correspondingly a wide range of
powers, the mere fact that some of
the powers which the statute
confers upon him are analogous to
or even identical with those of a
police officer would not make him
a police officer and, therefore, if
such an officer records a confession
it would not be hit by S. 25 of the
Evidence Act. In our judgment
what is pertinent to bear in mind
for the purpose of determining as to
who can be regarded a 'police
officer' for the purpose of this
provision is not the totality of the
powers which an officer enjoys
but the kind of powers which the
law enables him to exercise. The
test for determining whether such a
person is a "police officer" for the
purpose of S. 25 of the Evidence
Act would, in our judgment, be
whether the powers of a police
officer which are conferred on him
or which are exercisable by him
because he is deemed to be an
officer in charge of police station
establish a direct or substantial
relationship with the prohibition
enacted by S. 25, that is, the
recording of a confession. In other
words, the test would be whether
the powers are such as would
tend to facilitate the obtaining by
him of a confession from a
suspect or delinquent. If they do,
then it is unnecessary to consider
the dominant purpose for which
he is appointed or the question as
to what other powers he enjoys.
These questions may perhaps be
relevant for consideration where
the powers of the police officer
conferred upon him are of a very
limited character and are not by
themselves sufficient to facilitate
the obtaining by him of a
confession." (Emphasis supplied)
546 INDIAN LAW REPORTS ALLAHABAD SERIES
26. Four decades ago, V.R.
Krishna Iyer, J. in his inimitable
style, speaking for this Court in
Nandini Satpathy Vs P.L. Dani and
Another,
(1978)
2
SCC
424
observed as under:-
"50.
We,
however,
underscore the importance of the
specific setting of a given case for
judging the tendency towards guilt.
Equally emphatically, we stress
the need for regard to the impact
of
the
plurality
of
other
investigations in the offing or
prosecutions
pending
on
the
amplitude of the immunity. "To
be witness against oneself" is not
confined to particular offence
regarding which the questioning
is made but extends to other
offences about which the accused
has reasonable apprehension of
implication from his answer. This
conclusion
also
flows
from
"tendency to be exposed to a
criminal charge". "A criminal
charge" covers any criminal
charge then under investigation or
trial or which imminently threatens
the accused." (Emphasis supplied)
"57. We hold that Section
161 enables the police to examine
the accused during investigation.
The prohibitive sweep of Article
20(3) goes back to the stage of
police
interrogation-
not,
as
contended, commencing in court
only.
In
our
judgment,
the
provisions of Article 20(3) and
Section 161(1) substantially cover
the same area, so far as police
investigations are concerned. The
ban on self-accusation and the
right
to
silence,
while
one
investigation or trial is under
way, goes beyond that case and
protects the accused in regard to
other
offences
pending
or
imminent, which may deter him
from voluntary disclosure of
criminatory
matter.
We
are
disposed
to
read
'compelled
testimony' as evidence procured
not merely by physical threats or
violence but by psychic torture,
atmospheric
pressure,
environmental
coercion
tiring
interrogative
prolixity,
overbearing
and
intimidatory
methods and the like - not legal
penalty for violation. So, the legal
perils following upon refusal to
answer, or answer truthfully, cannot
be regarded as compulsion within
the meaning of Article 20(3). The
prospect of prosecution may lead to
legal tension in the exercise of a
constitutional right, but then, a
stance of silence is running a
calculated risk. On the other
hand, if there is any mode of
pressure, subtle or crude, mental
or physical, direct or indirect, but
sufficiently substantial, applied
by the policeman for obtaining
information from an accused
strongly suggestive of guilt, it
becomes 'compelled testimony',
violative
of
Article
20(3)."
(Emphasis supplied)
32. We have no hesitation
in holding that when an accused is
in
custody
under
PMLA
irrespective of the case for which
he is under custody, any statement
under Section 50 PMLA to the
same
Investigating
Agency
is
inadmissible against the maker.
The reason being that the person in
custody pursuant to the proceeding
10 All. Anil Tuteja Vs. S.H.O. & Ors.
547
investigated
by
the
same
Investigating Agency is not a
person who can be considered as
one operating with a free mind. It
will be extremely unsafe to
render
such
statements
admissible against the maker, as
such a course of action would be
contrary to all canons of fair play
and justice."
(iii) Learned counsel for
the
petitioner
stated
that
the
statements recorded under Section
50 of the PML Act, 2002 were akin
to the admissions made before the
Police
and,
therefore,
as
per
Section 25 of the Evidence Act they
could not be used against the
petitioners i.e. the persons who had
made those statements.
(iv) Learned counsel for the
petitioner has submitted that if the
FIR is perused, it becomes evident
that it was a verbatim reproduction
of
the
communication
dated
28.07.2023 and, therefore, it could
conveniently be said that it was so
registered without any application
of mind.
(v) Still further learned
counsel for the petitioner submitted
that every offence which finds
mention in the FIR which was
lodged
on
30.07.2023
was
originating
in
the
State
of
Chhattisgarh and, therefore, there
was no occasion for the State of
Uttar Pradesh to have lodged the
FIR.
(vi) Learned counsel for the
petitioner further stated that during
the pendency of the ECIR-11, ED
had
written
to
the
State
of
Chhattisgarh on 11.07.2023 for the
lodging of the FIR and thereafter
information was also sent to the
State
of
Uttar
Pradesh
on
28.7.2023. As per the learned
counsel for the petitioners in all
probability when under Section
66(2) of the PML Act, 2002, the
State of Chhattisgarh had sat over
the information sent by the ED then
on 28.07.2023 another information
was mala fidely sent with regard to
the very same facts to State of Uttar
Pradesh on 28.7.2023 and that gave
rise to the Case Crime No. 196 of
2023 and this FIR was lodged
malafidely on 30.07.2023. Learned
counsel for the petitioner, therefore,
states that the lodging of the FIR
was an absolute result of a
malicious act of the ED and also of
the State of Uttar Pradesh.
(vii)
Learned
Senior
Counsel Sri Siddharth Dave further
submitted that when the entire
ECIR
and
the
subsequent
prosecution complaint of the ED
were set aside, it did not stand to
reason that the statements which
were taken of the various witnesses
under section 50 of the PML Act,
2002 could be used for the lodging
of the F.I.R. No. 169/2023. When
the foundation itself had been
removed, the whole edifice of the
building would fall. He, therefore,
submitted that such material which
was in the possession of the
Director of ED was actually of no
consequence as the Supreme Court
on 8.4.2024 had set aside the
prosecution complaint itself. He
submitted that when disclosure of
information which was now no
information at all because of the
order of the Supreme Court dated
08.04.2024 then the lodging of the
548 INDIAN LAW REPORTS ALLAHABAD SERIES
F.I.R. on that information was an
exercise in futility performed by
the State of U.P. In this regard,
learned Senior Counsel relied upon
paragraph nos.107, 111 and 116 of
the jugment of the Supreme Court
in State of Punjab vs. Davinder Pal
Singh Bhullar reported in (2011) 14
SCC
770
which
are
being
reproduced here as under :-
"107. It is a settled legal
proposition that if initial action is
not in consonance with law, all
subsequent
and
consequential
proceedings would fall through for
the reason that illegality strikes at
the root of the order. In such a fact
situation, the legal maxim sublato
fundamento
cadit
opusmeaning
thereby
that
foundation
being
removed,
structure/work
falls,
comes into play and applies on all
scores in the present case.
.......................
111. Thus, in view of the
above, we are of the considered
opinion that the orders impugned
being a nullity, cannot be sustained.
As a consequence, subsequent
proceedings/orders/FIR/investigatio
n stand automatically vitiated and
are liable to be declared non est.
................
116. In view of the above,
the
appeals
succeed
and
are
accordingly
allowed.
The
impugned orders challenged herein
are declared to be a nullity and as a
consequence, the FIR registered by
CBI is also quashed."
(viii) Learned counsel Sri
Imran Ullah appearing for the
petitioner Niranjan Das in Criminal
Misc. Writ Petition No. 7389 of
2024 has adopted the arguments
made by the learned counsel for the
petitioner in Criminal Misc. Writ
Petition No. 6236 of 2024.
(ix)
Sri
Rajiv
Lochan
Shukla, learned counsel for the
petitioner in Criminal Misc. Writ
Petition No.6194 of 2024 (Anwar
Debhar vs State of U.P. & Ors.)
however,
while
adopting
the
arguments of Sri Siddharth Dave,
learned
Senior
Counsel
has
submitted that a perusal of the FIR
would go to show that there was
not an iota of allegation against the
accused, Anwar Debhar in the
entire FIR. Learned counsel for the
petitioner further relying upon the
judgments of the Supreme Court in
State of Haryana & Ors. vs.
Bhajan Lal & Ors. reported in
AIR 1992 SC 604 submitted that if
the FIR did not disclose any cause
of action against any particular
accused then the FIR could be
quashed. He also relied upon the
judgment of the Supreme Court in
Lovely Salhotra and Anr. vs.
State (NCT) of Delhi & Anr.
reported in (2018) 12 SCC 391 and
submitted that if there were more
than one accused persons in a
particular FIR and if against any
one particular accused, no definite
allegation was there from the
reading of the FIR then the FIR
could be quashed against that
particular person.
(x) Sri Shishir Prakash,
learned counsel appearing for the
petitioner in Criminal Misc. Writ
Petition No.6195 of 2024 has
submitted that it was wrong on the
part of the Police to have said that
work was given to the M/s. Prizm
Holography and Security Private
10 All. Anil Tuteja Vs. S.H.O. & Ors.
549
Limited illegally as the tender
which was allotted to the Prizm
Holography was challenged before
the Chhattisgarh High Court by
another firm M/s UFLEX Ltd. but
that writ petition came to be
dismissed on 12.9.2019 by the
High Court of Chhattisgarh. He
also relied upon the judgment of
the Supreme Court in State of
Punjab vs. Davinder Pal Singh
Bhullar reported in (2011) 14 SCC
770 and has also specifically relied
upon paragraphs 107, 111 and 116
of that judgment which have
already been quoted above.
14. Sri P.K. Giri, learned
Additional
Advocate
General
assisted by Sri Pankaj Kumar,
learned
AGA
has,
however,
submitted that a bare perusal of the
FIR dated 30.07.2023 discloses a
cognizable offence. Relying upon
the judgments of the Supreme
Court
in
Neeharika
Infrastructure Pvt. Ltd. vs. State
of Maharashtra and Others, AIR
2021 SC 1918; State of Telangana
Vs.
Habib Abdullah
Jellani,
(2017) 2 SCC 779 and Lalita
Kumar vs. State of U.P., (2014) 2
SCC 1, he has submitted that this
Court may not interfere with the
FIR as definitely a perusal of the
FIR showed that a cognizable
offence was made out and it was a
subject of investigation as to
whether the accused persons were
to be charge-sheeted or whether no
criminal proceedings were to be
undergone
against
them.
He
submits that the investigation was
going on and everything would be
subject to it. Learned Additional
Advocate General has further relied
upon the judgment of Supreme
Court
in
Vijay
Madanlal
Choudhary & Ors. vs. Union of
India & Ors. reported in 2022
SCC OnLine 929 [AIR 2022 SL
(Supp) 1283] and has submitted
that definitely under Section 66(2)
of the PML Act, 2002 as and when
a cognizable offence was noticed
by the ED, it could have always
referred the matter to the State of
Uttar Pradesh for taking cognizance
of it and for the lodging of the FIR
under Section 154 of Cr.P.C.
Learned
Additional
Advocate
General in fact states that if the
State of Uttar Pradesh did not lodge
the FIR then it would be failing in
its duty as a State. Learned
Additional
Advocate
General
further submits that the entire
statement which was there on
record
of
the
ECIR-11
was
definitely on the record of the case
and it could always be referred to.
He submits that the prosecution
complaint which arose out of
ECIR-11 was in fact quashed by
the Supreme Court on account of
the fact that no predicate offence
was disclosed and, therefore, he
submits that the offences which
were to be taken cognizance of by
the State and which were definitely
found on the record of the case in
the form of statements of so many
other
witnesses
then
those
statements could always be utilized
for the purposes of lodging of the
FIR. Learned Additional Advocate
General further relying upon the
case
in
Vijay
Madanlal
Choudhary (Supra) submitted that
the officials under Section 50 of the
PML Act, 2002 were not police
550 INDIAN LAW REPORTS ALLAHABAD SERIES
officers
and,
therefore,
any
statement made on oath in their
presence were not such admissions
which could not be relied upon
during trial as per Section 25 of the
Evidence Act. Learned Additional
Advocate
General
still
further
submits that as per Section 66(2) of
PML Act, 2002 if the officials of
the ED were of the opinion that on
the basis of "any" information or
on the basis of material in their
possession, if the Director or any
other official of ED came to know
that any law for the time being in
force was being contravened then it
was the duty of the Director of ED
to share that information with the
concerned agency for necessary
action. Relying upon paragraph 290
of the judgment of Vijay Madanlal
Choudhary
(Supra),
learned
Additional Advocate General states
that
if
any
incriminating
information
is
there
in
the
possession of the Director of ED
then
that
information
should
compulsorily be shared with the
appropriate authority under Section
66(2) of the PML Act, 2002. The
relevant portion of paragraph 290 is
being reproduced here as under :

"290. As a matter
of fact, prior to amendment
of 2015, the first proviso
acted as an impediment for
taking such urgent measure
even by the authorised
officer, who is no less than
the
rank
of
Deputy
Director. We must hasten to
add
that
the
nuanced
distinction must be kept in
mind
that
to
initiate
"prosecution" for offence
under Section 3 of the Act
registration of scheduled
offence is a prerequisite,
but for initiating action of
"provisional
attachment"
under Section 5 there need
not be a pre-registered
criminal case in connection
with
scheduled
offence.
This
is
because
the
machinery
provisions
cannot be construed in a
manner
which
would
eventually
frustrate
the
proceedings under the 2002
Act.
Such
dispensation
alone
can
secure
the
proceeds
of
crime
including
prevent
and
regulate the commission of
offence
of
moneylaundering. The authorised
officer would, thus, be
expected to and, also in a
given case, justified in
acting with utmost speed to
ensure that the proceeds of
crime/property is available
for being proceeded with
appropriately
under
the
2002 Act so as not to
frustrate any proceedings
envisaged by the 2002 Act.
In case the scheduled
offence is not already
registered
by
the
jurisdictional police or
complaint filed before the
Magistrate, it is open to
the authorised officer to
still
proceed
under
Section 5 of the 2002 Act
whilst contemporaneously
sending information to
10 All. Anil Tuteja Vs. S.H.O. & Ors.
551
the jurisdictional police
under Section 66(2) of the
2002 Act for registering
FIR
in
respect
of
cognizable
offence
or
report
regarding
noncognizable offence and if
the jurisdictional police
fails
to
respond
appropriately
to
such
information,
the
authorised officer under
the 2002 Act can take
recourse to appropriate
remedy,
as
may
be
permissible
in
law
to
ensure that the culprits
do not go unpunished and
the proceeds of crime are
secured and dealt with as
per
the
dispensation
provided for in the 2002
Act. Suffice it to observe
that
the
amendment
effected in 2015 in the
second
proviso
has
reasonable nexus with the
object
sought
to
be
achieved by the 2002 Act."
(Emphasis
supplied)

15. Learned Additional Advocate
General further submitted that under
section 66(2) of the PML Act, even if the
main ECIR and the prosecution complaint
were not in existence, the material which
was in possession of the Director and the
other officials of the ED and which did not
form a scheduled offence, then even that
material could have been transmitted to
such authority which could take action in
pursuance of the material which would be
provided by the officials of the ED to such
authority. Learned Additional Advocate
General submitted that criminal law can be
put into motion by just any person and in
this regard he refers specifically to
paragraph no.6 of the judgment of the
Supreme Court in A.R. Antulay vs.