Serious Doubt That ED Clerk Assigned To Desk Work Can Serve Summons: Allahabad High Court Flags 'Improper' Service In PMLA Case

The Allahabad High Court (Lucknow Bench) recently raised serious doubts over the Enforcement Directorate's (ED) action to serve summons in a money-laundering case linked to the alleged UP Police recruitment paper leak, though an Upper Division Clerk (UDC), who is typically assigned desk works.

Granting anticipatory bail to the accused, Justice Subhash Vidyarthi observed that the service of summons by an ED clerk was not in the proper manner and that he was not aware of modern technology that could be incorporated in serving the summons.

The bench specifically took exception to the ED's claim that a UDC had gone to the applicant's address, met his maternal aunt who refused to accept the summons and thereafter pasted the notice on a wall and thereafter, clicked a photograph as proof.

The Court noted glaring discrepancies as the photograph in question did not show the summons pasted on the wall, nor did it bear the name of the applicant's maternal uncle, at whose residence the accused claimed to be living.

The service report too did not contain the signatures or thumb impression of any person who has witnessed affixation of the summons on the wall of the house, the Court observed as it did not find enough substance in such service.

Justice Vidyarthi remarked in strong words:

"The manner in which the clerk of E.D. claims to have served the summons on the applicant is not the proper manner of service of any legal notice or summons. The Clerk who claims to have gone to serve the summons has not taken care to click a photograph of the house along with the notice pasted on the wall of the house. 

The bench went on to note that in the age of modern technology, ED officials could easily record the service process using smartphones with timestamp and location data.

"Nowadays with the advent of modern technology, evidence of visiting a place and affixation of summons on the wall of a particular house can be collected by taking a photograph with advanced applications available in any smart phone, which shows the geographical coordinates of the place and the date and time of taking the photograph", Justice Vidyarthi observed.

The Court added that the clerk was perhaps not aware of such applications.

The Court further expressed serious doubt about whether such a task could be officially assigned to an Upper Division Clerk, stating:

"Upper Division Clerks are primarily entrusted with desk jobs and there is a serious doubt whether the duty of service of summons can officially been assigned to an Upper Division Clerk in accordance with some rules or regulations".

Background of the case

The case arose from an FIR registered by the STF, Meerut, in connection with the UP Police recruitment exam paper leak, where several persons were arrested and the answer key was recovered.

The applicant, not originally named in the FIR, was later implicated based on custodial statements of arrested accused. The Enforcement Directorate subsequently lodged an ECIR under the Prevention of Money Laundering Act (PMLA) on April 30, 2024.

The applicant's statement under Section 50 of the PMLA was recorded while he was in custody and his properties were provisionally attached. The applicant was released on bail in the scheduled offence by a coordinate Bench of the High Court on 29 May 2024 and was released from custody on 7 November 2024.

Apparently, the applicant thereafter, did not participate in the questioning despite repeated summons. Thereafter, fearing his arrest, he moved the HC.

The ED opposed his anticipatory bail as it contended that the applicant had failed to appear despite repeated summons. However, the Court found that the first summons (dated November 4, 2024) required his appearance when he was still in jail and later summons was allegedly served through improper means.

The applicant's counsel argued that he had already participated in attachment proceedings, his statement had been recorded while in custody and no attempt was made by the ED to arrest him after his release.

He also argued that his mobile phone had been seized by the STF which disabled him to receive the electronic communications sent by the ED.

Taking note that the applicant had spent over seven months in custody and was already on bail in the scheduled offence, the Court allowed his anticipatory bail plea.

He was directed to furnish a personal bond and two sureties, inform the ED of his current contact details within a week, cooperate in interrogation and not tamper with evidence or influence witnesses.

Appearances

Counsel for Applicant(s) : Rishabh Chauhan, Abhishek Tiwari, Anuuj Taandon, Atul Krishna, Prajjwal Harsh

Counsel for Opposite Party(s): Kuldeep Srivastava

Case title - Rajeev Nayan Mishra @ Rajeev Nayan vs. Directorate Of Enforcement Govt. Of India Lko. Zonal Office Lko.

Case citation : 

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