Amit Katyal: Land for job PMLA Case: Court asks businessman Amit Katyal to surrender; raises finger on ED’s conduct
Now, the court has asked him to surrender before the jail authorities today.
Bihar’s former CM Rabri Devi and her two daughters have been charge sheeted along with others by the Enforcement Directorate (ED).
However, the court has made some strict observation over the conduct of ED in obtaining independent medical opinion on the health of accused. The court has considered it as breach of privacy and over reaching the court.
Special Judge Vishal Gogne declined the plea and asked Katyal to surrender.
“The plea of the accused for extension of interim bail is declined,” the Special Judge Gogne said on Tuesday.The court disposed off the plea with direction to accused Amit Katyal to surrender before the Superintendent, Central Jail by 5:00 pm on May 1.The court has recorded that the accused has been permitted normal physical activity and sufficient time has passed after his discharge upon surgery at Medanta Hospital. He is apparently in a recovered state of health and should be required to surrender. There are no grounds to extend the interim bail of the accused any further, special judge said in the order.
While disposing off the plea, the court questioned the conduct of ED recording statement of treating doctors of private hospital.
The court said, “If there are any lessons to be learnt from history, it would be observed that ‘strong’ leaders, laws and agencies generally come back to bite the very citizens they vow to protect.”
After the masculinity of the law has been expressed against the stated targets, such laws are invariably alleged to have been employed against the average citizens, the judge added.
The court remarked, “The use of section 50 by the ED against the law abiding doctors of private hospitals is a contemporary contribution to this perception. Such negation of the intended purpose of strict legislations is required to be avoided by the investigation agencies and consciously monitored by the courts.”
The court emphasised the right to privacy and data protection.
The court said that the purpose of the court in drawing attention to the right to privacy, the DPDP Act and the National Medical Commission Regulations is to emphasise that with the advent of recent legislations, the ED shall not, in the near future itself, be able to steam roll the objections of the accused persons or independent persons on grounds sourced from these newer rights and legislations.
The intersection of the stringent provisions of the PMLA, especially sections 45 and 50, with rights related to privacy, data protection and medical regulations shall have to be taken into account in order that omissions to factor in recent developments of the law do not create infirmities in the very investigation which the ED seeks to further.
The court also asked Director ED to ensure that officer of the agency is well aware of the right to privacy.
“Thus, the Director, ED is mandated to ensure that the officers of the agency are well versed with the exposition of section 50 PMLA in Vijay Madanlal, the right to privacy explained in Puttaswamy and also the guidelines of the National Medical Commission,” the court said in the order.
The court further said that the doctors are also required to be aware. The court said, “Correspondingly, the medical practitioners, under the aegis of the National Medical Commission, may equally be required to be aware of the inter sectionality in order that they may balance their requirements towards medical ethics with obligations to assist criminal investigations or court proceedings.”
The court was expressed its concern on the fact that the health records of the accused were shared by the ED with two government hospitals namely RML Hospital and DDU Hospital as well as the freedom with which the previous treatment of the accused was verified with the private hospitals viz Apollo Hospital and Medanta Hospital.
The court pointed out, “ED neither sought the presence of the accused, let alone his consent, before the examining doctors nor sought permission from the court. The first omission possibly impinged upon the right to privacy of the accused while the second omission was an instance of over reaching the court. These two aspects also bear opinion from the court.”
It was argued by the Sr. Advocate Vikas Pahwa, counsel for the accused that the ED had infringed the right to privacy of personal medical information of the accused by sharing it with non-treating doctors at RML Hospital and DDU Hospital.
The proceedings for interim bail having throughout been under judicial consideration since February 5, 2024, the ED had wilfully over reached the court by conducting a non-mandated inquiry from these hospitals as well as the doctors at Apollo and Medanta Hospitals, Senior advocate argued.
On the other hand, ASG S V Raju contended that since the said medical records were a part of consideration during judicial proceedings related to interim bail, the plea of violation of privacy was not available to the accused. Also, that the procedure adopted by the ED in verifying the reports from the hospitals was fairly uniform even to other cases investigated by the ED.
The court said that it does agree with the ASG to the extent that the powers of the court in subjecting the accused to independent verification of his health at various hospitals or constituting Medical Boards is unfettered by any claim of privacy which may be raised by the accused. However, the prerogative available to the court does not translate into the same leeway being available to the agency.
The judge pointed out that The unilateral inquiries made by the ED through letter on February 27, 2024 to DDU Hospital and letter on February 28, 2024 to Apollo Hospital were palpably in breach of propriety as the application for extension of interim bail had already been filed on February 27, 2024 before this court.
“Despite the court being seized of all prayers including independent verification or constitution of a medical board, the ED overreached the court by not only dispatching letters to these hospitals but also examined the doctors at the private hospitals under section 50 PMLA as soon as the application for extension of interim bail was filed,” the court said.
“When it is entirely par for the course for courts to routinely call for replies from hospitals and give directions for examination of accused persons by medical boards, there was no justification for the ED to be over zealous,” the court remarked.
The court further said that The true measure of power is the restraint with which it is exercised. This court shall follow the said principle in only cautioning the ED against a similar approach in future.
However, it is made clear that the ED should exercise similar restraint in exercise of its own powers when a matter is subjudice, the court said.
It is expected that the ED shall adhere to well settled norms of submitting to court orders when a matter is under direct consideration of the court, the court emphasised.
The court also questioned the conduct of ED in sharing medical documents of accused.
” As to the question of privacy of the medical record of the accused, the sharing of the medical records of the accused with the two government hospital (RML and DDU) and the seeking of opinion from the doctors at Apollo Hospital and Medanta Hospital, these were indeed acts in possible breach of confidentiality of the personal records of the accused,” the court said.
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