TaxTMI 
TaxTMI 
2016 (5) TMI 1544
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....tions 418, 419, 420, 465, 467, 468, 471 and 120B of the Indian Penal Code against four persons, namely, (i) Girish Parshottam Patel alias Tommy Patel (ii) Kirankumar Jayantilal Mala (iii) Dharmendrasinh Vishwanath Chauhan alias Dharmin Chauhan and (iv) Chirag Parikh. It is alleged that they were engaged in the activity of gambling with the aid of mobile phone. The accusation is that they were engaged in the cricket betting. 3. On the very next day of the registration of the first information report, the Enforcement Case Information Report No. ECIR/03/AMZO/2015 was registered with the office of the respondent No. 2, inter alia, alleging that the four persons, named above, have committed the offence of money laundering under the Act, 2002. 4. The petitioner came to be arrested at New Delhi. After his arrest, his statement was recorded under section 50 of the Act, which was, later on, retracted when he was produced before the court of the learned Metropolitan Magistrate, Patiala House, New Delhi. 5. The petitioner was, thereafter, produced before the Designated Special Court at Ahmedabad on 25.05.2015. The Designated Court granted remand upto 28.05.2015. 6. In the PMLA Com....
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....to competent Magistrate (u/s. 157 of the Code), 1.3 Recording any information as prescribed of the commission of a non-cognizable offence and referring the informant to the competent Magistrate (u/s. 155(1) of the Code), 1.4 Obtaining any order from a competent Magistrate for investigating any non-cognizable offence (u/s. 155(2) of the Code), 1.5 Obtaining any warrant from competent Magistrate to arrest the petitioner in a non-cognizable offence (u/s. 155(3) of the Code), 1.6 Maintaining any case diary in a duly paginated volume, entering therein day-today proceedings in the investigation and other material particulars (u/s. 172 of the Code), and 1.7 Producing such case diary before the Magistrate when the petitioner was arrested and produced before the Magistrate (u/s. 167 of the Code). 9. According to the learned counsel, irrespective of the fact whether the offence under the PMLA is cognizable or non-cognizable, the officers of the respondent-Investigating Agency failed to adhere to the mandatory procedural safeguards contained in the Criminal Procedure Code on an erroneous claim that since they are not "police officers", and the P....
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....ons 155(2) and 155(3) of the Code exists in the PMLA, and thus the same shall apply in the investigations under the PMLA if the offence thereunder is non-cognizable. 17. The learned counsel also placed reliance on the decision of the Supreme Court in the case of Union of India v. Thamisharasi, 1995 (4) SCC 190 : (1995 AIR SCW 2543). He submitted that the Supreme Court, after considering the provisions of section 4(2) of the Cr.P.C., rejected the criminal appeal filed by the Union of India holding that in view of the conditions precedent vide section 37 of the NDPS Act, imposing limitations on grant of bail, the proviso to sub-section (2) of section 167 of the Cr.P.C. was not applicable for release on bail even upon expiry of the total period specified therein. He relied on the following observations made by the Supreme Court; "In our opinion, in order to exclude the application of the proviso to sub-section (2) of Section 167, Cr.P.C. in such cases an express provision indicating the contrary intention was required or at least some provision from which such a conclusion emerged by necessary implication. As shown by us, there is no such provision in the NDPS Act and the ....
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....re at all stages of the investigation. ii) The Court would be aware about the commencement of the investigations, and closure of the same qua any of the accused. iii) The Court would have the advantage of Case Diary as and when required. iv) The person who is shown as suspect/accused of the offence by complying with sections 154/155(1) and 157/155(2) of the Code, would be able to-- a) seek a certified copy of the Information report from the Court on payment of fee, b) file application for seeking anticipatory bail under section 438 of the Code by relying upon:- i) the contents of the FIR for the cognizable offence, or, ii) the complaint for non-cognizable offence, as the case may be; c) "appear" before the Court with reference to the FIR of the cognizable case or the order to investigate the non-cognizable case, and thus effectively seek regular bail as per the provisions of section 437/439 of the Code as the case may be; d) effectively invoke inherent jurisdiction of the Hon'ble High Court under section 482 of the Code/Article 226 for seeking quashing of the FIR/the complaint of non-cognizable off....
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....enced and that is the first version of the prosecution, as and when applicable is made by accused for a certified copy of the complaint, the Court to which it is forwarded should give certified copy of the FIR, if the application and legal fees thereof have been tendered for the same in the Court of Law." 23. The learned counsel made a gallant effort to convince this Court that the offence under section 4 of the PMLA is non-cognizable. In support of his submission, he highlighted the following; "The PMLA Bill, 1999 (in Clause 44) as also the PMLA Act, 2002 when enacted (in specific clause (a) in sub-section (1) of section 45) contained the following provision making the offence under PMLA a 'cognizable' offence- (i) Notwithstanding contained in the Code of Criminal Procedure, 1973.- (a) every offence punishable under this Act shall be cognizable." The marginal note/side note in the said PMLA Bill 1999 as also the PMLA Act, 2002 accordingly read as follows -- "Offence to be cognizable and non-bailable". The Act was proposed to be amended in 2005 vide "Prevention of Money-Laundering (Amendment) Bill, 2002" which inter alia contained the fol....
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....ore remain "cognizable" and by implication became "non-cognizable", irrespective of the now misleading heading of the section 45(1), which remained unaltered. Further, it is settled law as held in Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., (2010) 8 SCC 24 : (2010 AIR SCW 4983), that error can be rectified by interpretation when the legislature could not possibly have intended what its words signify, and that the modifications made by interpretation are mere corrections of careless language and really give the true meaning, because where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman's un-skillfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used. Moreover, no further amendment in section 45(1) has been carried out for revival of the said repealed provision much less by expressly stating any purpose as required in section 7 of the General Clauses Act, 1897. Even otherwise, the marginal notes/side notes/heading are not considered as legitimate aid to construction of any section. The Hon'ble Supreme Court in Guntaiah v. Ha....
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.... Liability of directors of private company in liquidation-(1) Notwithstanding anything contained in the Companies Act, 1956 (1 of 1956), where any tax due from a private company in respect of any income of any previous year or from any other company in respect of any income of any previous year during which such other company was a private company cannot be recovered, then, every person who was a director of the private company at any time during the relevant previous year shall be jointly and severally liable for the payment of such tax unless he proves that the non-recovery cannot be attributed to any gross neglect misfeasance or breach of duty on his part in relation to the affairs of the company." Section 179 prior to its amendment read as under: "179. Liability of directors of private company in liquidation--Notwithstanding anything contained in the Companies Act, 1956 (1 of 1956), when any private company is wound up after the commencement of this Act, and any tax assessed on the company, whether before or in the course of or after its liquidation, in respect of any income of any previous year cannot be recovered then, every person who was a director of the ....
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....t rather than a report under section 173(2) of the Code." 24. The learned counsel relied on the decision of the Supreme Court in the case of State of Punjab vs. Baldev Singh, 1999 (6) SCC 172 : (AIR 1999 SC 2378, paras 28 and 53) in support of his submission as regards the importance of compliance with the procedural safeguards. He placed reliance on the following observations; "28. This Court cannot overlook the context in which the NDPS Act operates and particularly the factor of widespread illiteracy among persons subject to investigation for drug offences. It must be borne in mind that severer the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously allowed. We are not able to find any reason as to why the empowered officer should shirk from affording a real opportunity to the suspect, by intimating to him that he has a right "that if he requires" to be searched in the presence of a Gazetted Officer or a Magistrate, he shall be searched only in that manner. As already observed the compliance with the procedural safeguards contained in Section 50 are intended to serve a dual purpose to protect a person aga....
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....ndia, as the said section 68 of PMLA or Section 465, Cr.P.C. only relate to such error, omission or irregularity which are merely technical and do not occasion any failure of justice. Moreover, the Hon'ble Calcutta High Court, in Subodh Singh Modak v. State, 1974 Cri. L.J. 185, was pleased to hold that a nonconformance to the mandatory provisions laid down in Section 155 (2) of the Code was not curable under Section 537 of the Code and is a non-conformance to the procedure established by law within the meaning of Article 21 of the Constitution of India. It was observed that- 4... The steps of reasoning of the learned Sessions Judge, Purulia are that even if there has been such a non-conformance it is an illegality that is curable under Section 537, Criminal Procedure Code on the ground that the procedure adopted by the Investigating Officer was erroneous and irregular. He relied on the principles laid down in the case of H.N. Rishbud v. The State of Delhi:: 1955 Cri. L.J. 526. Mr. Biswas supported these reasons and contended that even if the investigation has been illegal that will not affect the competency of the Court to take cognizance and in any event the ....
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.... Taylor v. Taylor, 1876 1 Ch D 426 was approved of by Lord Roche in the case of Nazir Ahmed v. King Emperor (1936) 63 IA 372 at pp. 381 and 382 : 37 Cri. L.J. 897 : (AIR 1936 PC 253 (2)) namely, that "where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden." I respectfully agree with the said observations and I hold that a non-conformance to the mandatory provisions laid down in Section 155(2). Criminal Procedure Code is a non-conformance to the procedure established by law and the impact thereof has been missed by the learned Sessions Judge, vitiating the ultimate order that he passed in setting aside the order for quashing the proceedings and sending back the case on remand. Justice demands that the said order should be set aside and due regard should be given to the order passed by the learned Judicial Magistrate. The contentions of Mr. Banarjee accordingly succeed." The said decision was followed by Hon'ble Calcutta High Court in Harilal Shaw v. State, 1985 (1) Crimes 484 (at Pages: 95-96 of the Compilation). Hon'ble Bombay High Court in Avinash Madhukar....
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....e same for trial within the terms under Section 155(2) of the Code but subject to Section 155(3) of the Code..." "60........Indeed, a noticeable feature of the scheme under Chapter XIV of the Code is that a Magistrate is kept in the picture at all stages of the police investigation but he is not authorised to interfere with the actual investigation or to direct the police how that investigation is to be conducted. But if a police officer transgresses the circumscribed limits and improperly and illegally exercises his investigatory powers in breach of any statutory provision causing serious prejudice to the personal liberty and also property of a citizen, then the court on being approached by the person aggrieved for the redress of any grievance, has to consider the nature and extent of the breach and pass appropriate orders as may be called for without leaving the citizens to the mercy of police echelons since human dignity is a dear value of our Constitution. It needs no emphasis that no one can demand absolute immunity even if he is wrong and claim unquestionable right and unlimited powers exercisable up to unfathomable cosmos. Any recognition of such power will be tanta....
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....of the High Court awarding costs with a direction that the said costs is payable to respondent 1 (Shri Bhajan La) by respondent 2 (Dharam Pal). 141. In the result, the appeal is disposed of accordingly but at the same giving liberty to the State Government to direct an investigation afresh, if it so desires, through a competent police officer empowered with valid legal authority in strict compliance with Section 541(1) of the Act as indicated supra. No order as to costs." In Income-tax Act, Section 292B is pari-materia to section 68 of PMLA In the context of Section 292B, it was observed by a Division Bench of the Hon'ble Kerala High Court in R.N. Sasikumar v. CIT, 1988 (170) ITR 80 that-- "4. But, the Appellate Tribunal held that Section 292B cures the defects or omissions in the instant case. Section 292B is as follows: "No return of income, assessment, notice, summons or other proceeding furnished or made or issued or taken or purported to have been furnished or made or issued or taken in pursuance of any of the provisions of this Act shall be invalid or shall be deemed to be invalid merely by reason of any mistake, defect or omission in such re....
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....edings" would include investigation. See the definition of 'investigation' S. 4(2), 5 of Cr.P.C. Thus, the legislature has given paramount importance to the object of the Act rather than the procedure to be followed for attaining the object. 28. According to Ms. Patel, the PMLA is a Special Act and it provides complete guidelines as to how the investigation is to be carried out. So far as the procedure which the Designated Court has followed, the same would be governed by the Cr.P.C. She submitted that the PMLA, being a Code in itself, the investigation could be carried out according to the definition of section 2(na) for collection of the evidence for the offence of money laundering under section 3 when the offence is cognizable and non-bailable. 29. Ms. Patel placed strong reliance upon sections 46 and 65 to submit that the provisions of the Cr.P.C. would apply insofar as they are not inconsistent with the provisions of the PMLA. 30. Reference was made to section 44 to submit that not only a Special Court, upon a complaint, could take cognizance upon sections 44 and 45 and that also upon a complaint in writing by the Director or any Officer of the....
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....mittedly, Sections 419, 420, 467, 471 are part of the scheduled offences as described under part A of the schedule. 36. Section 2(p), 2(u), 3 and 4 reads thus: "2(p) "money laundering" has the meaning assigned to it in section 3; 2(u) "Proceeds of crime" means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property." 3. Offence of money laundering.--Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected [proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming] it as untainted property shall be guilty of offence of money-laundering. 4. Punishment for money-laundering.--Whoever commits the offence of money-laundering shall be punishable with rigorous imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine. Provided that where the proceeds of crime involved in money laundering relates to any offence specified....
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....2 of the Code of Criminal Procedure, 1973 (2 of 1974) and the provisions of that Code shall have effect accordingly. 40. Section 65 reads as under; "65. Code of Criminal Procedure, 1973 to apply The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply, in so far as they are not inconsistent with the provisions of this Act, to arrest, search and seizure, attachment, confiscation, investigation, prosecution and all other proceedings under this Act." 41. Section 75 reads as under: "75. Power to remove difficulties (1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order, published in the Official Gazette, make such provisions not inconsistent with the provisions of this Act as may appear to be necessary for removing the difficulty: Provided that no order shall be made under this section after the expiry of two years from the commencement of this Act. (2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament. 42. Section 23 reads as under; "23. Presumption in inter-connecte....
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....n 157 of the Code of Criminal Procedure, 1973, or a complaint has been filed by a person, authorised to investigate the offence mentioned in the Schedule, before a Magistrate or court for taking cognizance of the scheduled offence, as the case may be, or in cases where such report is not required to be forwarded, a similar report of information received or otherwise has been submitted by an officer authorised to investigate a scheduled offence to an officer not below the rank of Additional Secretary to the Government of India or equivalent being head of the office or Ministry or Department or Unit, as the case may be, or any other officer who may be authorised by the Central Government, by notification, for this purpose.";] (2) The authority, who has been authorized under sub-section (1) shall, immediately after search and seizure, forward a copy of the reasons so recorded along with material in his possession, referred to in that sub-section, to the Adjudicating Authority in a sealed envelope, in the manner, as may be prescribed and such Adjudicating Authority shall keep such reasons and material for such period, as may be prescribed. (3) Where an authority is ab....
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.... of 1985). (10) The authority, seizing any record or property under sub-section (1) shall, within a period of thirty days from such seizure, file an application requesting for retention of such record or property, before the Adjudicating Authority." 46. In the course of the hearing of the matters, Mr. Chaudhary, the learned counsel appearing for the petitioners, took me through the discussion in the parliament in connection with the bill to amend the Prevention of Money Laundering Act, 2002, which reads as under; "That the Bill to amend the Prevention of Money Laundering Act, 2002, be taken into consideration." Sir, the Money Laundering Act was passed by this House in the year 2002, and number of steps have to be taken to implement it. Sir, two kinds of steps were required. One was to appoint an authority who will gather intelligence and information, and the other was an authority to investigate and prosecute. This Act was made to implement the political declaration adopted by the Special Session of the UN General Assembly in 1999. Section 1(3) of the Act stipulates that the Act will come into force on such date as the Central Government may by notification ....
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....ibunal under this Act. After all, it is the same retired High Court Judge or a serving High Court Judge who is going to be there. So, part of the time, he would devote to dealing with appeals arising under some other Acts; and, part of the time, he would deal with appeals arising under this Act. At least in the initial years, we do not think, there would be enough work for a full-time Appellate Tribunal. What we are doing is, we are inserting a new Section, 2(n)(a) defining the term, investigation; making an amendment to Sections 28, 29 and 30, dealing with tribunals; amending Sections 44 and 45 of the Act to make the offence non-cognizable so that only the Director could take action; and also making consequential changes in Section 73. I request Hon'ble Members to kindly approve of these amendments so that the Act could be amended quickly and we could bring it into force. Mr. CHAIRMAN: Motion moved: "That the Bill to amend the Prevention of Money laundering Act, 2002, be taken into consideration." 47. Money laundering is an activity sought to be criminalised in the various countries. Various definitions exist and have been used to explain what money launderin....
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....nt officials. This obviously lessens the possibilities of the money being confiscated as illegal, or of the criminals being identified. This legitimate money is also used to fund criminal activities after a period and is thus circulated after temporary storage. If a crime is committed abroad and through the money laundering process, the same money becomes legitimate in India, such that it is apparently traceable to a legitimate source of income, beyond which lies a network of complex transactions, the complexity of which cannot be broken through to lead to the ultimate criminal activity which had occurred, is very difficult for enforcement officials to enforce anti-crime laws because the chain of causation has been broken. 49. The first question that falls for my consideration is whether the offence under the PMLA is cognizable and non-bailable. 50. By Prevention of Money Laundering (Amendment) Act, 2005 (20 of 2005) subclause (a) of the Money Laundering Act, 2002 (15 of 2003) stands deleted. The said sub-clause (a) provided that "every offence punishable under this Act shall be cognizable." Sub-section (1A) introduced by the Prevention of Money Laundering (Amendment) Act of ....
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....he Act. Therefore, in my view, the section cannot be construed to lay down that the offences under the Act are non-bailable. (see commentary on the Prevention of Money Laundering Act, 2002 Tushar V. Shah) 52A. From reading the Act as a whole it is manifestly clear that the Prevention of Money Laundering Act being a special statute the procedure for dealing with the offences are regulated by the provisions contained in the said Act. Section 44(1b) clearly provides that cognizance for the offence punishable under the Act shall be taken only upon a complaint made by an authority authorized in that behalf under the Act. Further Section 45 of the Act put restrictions in the release of the persons on bail unless conditions mentioned therein are fulfilled. It further provides that special Court shall not take cognizance of any offence under Section 4 except on a complaint made by the Director or any Officer authorized by the Central Government or the State Government. Subsection (1-A) of Section 45 specifically provides that notwithstanding the provisions contained in the Code of Criminal Procedure, no police officer shall investigate into an offence under the Act unless specifically a....
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....or a term of imprisonment of more than three years under Part A of the Schedule shall be released on bail or on his own bond unless-- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail: Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm, may be released on bail, if the Special Court so directs: Provided further that the Special Court shall not take cognizance of any offence punishable under section 4 except upon a complaint in writing made by-- (i) the Director, or (ii) any officer of the Central Government of State Government authorised in writing in this behalf by the Central Government by a general or a special order made in this behalf by that Government. (2) The limitation on granting of bail specified in sub-section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the ti....
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....isions to persons who are accused of the offences which are provided under Part A of the Schedule which are punishable for a term of imprisonment for a period of more than 3 years. Thus, restriction is sought to be imposed upon that category of accused and the Court has to comply with certain conditions while deciding their bail application. In the present case, the petitioners are not accused of the said offence but are being investigated for the offence of money laundering under Section 3. Section 4, as noticed above, provides that the punishment for the offence of money laundering shall not be less than 3 years but which may extend to 7 years. The first schedule of the Cr.P.C. specifically provides the classification of offences which are cognizable or non-cognizable, bailable or non-bailable and by what Court triable apart from the punishment which is provided for the said offences. Under Part II of the first schedule, classification of offences against other laws provide that offences punishable with imprisonment for more than 3 years and upwards would be cognizable and non-bailable. The same reads as under:-- Offence Cognizable or non- cognizable Bailable or non-aila....
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....without any business activity but having heavy financial dealings which have been unearthed by the investigating agencies in pursuance of the investigation carried out under the provisions of the Act. 33. As noticed, the punishment is not less than 3 years for the said offences and prosecution can only be launched in the Special Court and the purpose of the Act is to prosecute the persons who are involved in such proceeds of crime and the said Act is a special Legislation to curtail the organized crime and to confiscate and prosecute the offenders therein. 34. The Jharkhand High Court had occasion to consider the provisions of the PMLA in Hari Narayan Rai v. Union of India and another, 2010 (2) AIR Jhar R 692 and noticed that a complaint can be filed by the authority made by the authorized officer and the police officer is not to investigate. The Act was a special statute in which there was no police report which has to be filed and only a complaint could be filed after completion of investigation by the authorized authority on the basis of which cognizance could be taken. The relevant observations read thus: "12. From reading the Act as a whole it is man....
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.... offence is non-cognizable mainly because a complaint has to be filed by the authorities before the Special Court to take cognizance does not take away the power of the authorities to investigate and arrest. We are in consonance with the view taken above by the Jharkhand High Court that the right to investigate under the Act is very much part of the scheme of the Act. The argument that the offence is a non-cognizable offence and bailable as defined under Section 2(1) of Cr.P.C. thus, cannot be accepted. 36. As noticed, Section 65 of the Act specifically provides that the provisions of the Cr.P.C. are only to apply insofar as they are not inconsistent with the provisions of the PMLA, 2002. Section 65 reads thus:-- "65. Code of Criminal Procedure, 1973 to apply.--The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply, insofar as they are not inconsistent with the provisions of this Act, to arrest, search and seizure, attachment, confiscation, investigation, prosecution and all other proceedings under this Act." 37. Section 71 would further be a hurdle in the way of the petitioners which provides that the PMLA has to have an overridin....
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....gh Court regarding bail under Section 439 of the Code of Criminal Procedure, 1973 (2 of 1974) and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to "Magistrate" in that section includes also a reference to a "Special Court" designated under Section 43. 46. Application of the Code of Criminal Procedure, 1973 to proceedings before Special Court.--(1) Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) (including the provisions as to bails or bonds), shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Session and the persons conducting the prosecution before the Special Court, shall be deemed to be a Public Prosecutor: Provided that the Central Government may also appoint for any case or class or group of cases a Special Public Prosecutor. (2) A person shall not be qualified to be appointed as a Public Prosecutor or a Special Public Prosecutor under this section unless he has been in practice as an Advocate for not less than....
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....e offence under sub-section (1A) of Section 45. It has not been pointed out in any manner that any such rules have been framed or that any police officers were investigating the offences so that the procedure under Cr.P.C. has to be followed. 40. The provisions of the Act have already been discussed in detail above which provide that the offences are punishable with not less than 3 years and can go upto 7 years along with attachment and confiscation of the properties. The Special Court constituted by the Central Government which is duly notified is to take cognizance of the offences on the complaint filed by the authorities and which is to be tried by the Sessions Judge. 41. It is settled principle of law that the plain meaning of the Statute is to be taken into consideration and the Court is not to read anything into the statutory provisions and only the legislative intent is to be found out and neither any words are to be added, altered or modified unless it is necessary to do so. The Statute has to be read in its whole for the purpose of finding out its object and nothing could be shown that there was any absurdity or manifest injustice which has been caused on....
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....n that court. Counsel submits that for deciding these matters the paramount question one is required to ask himself is why provisions similar to the one in 1952 Act and other such enactments conferring specific power to grant pardon and to inflict punishment in the event of violation of the terms and conditions of the pardon were omitted from the Act. The obvious and the only answer of the question, according to learned counsel, is that the intention of the legislature was not to confer the power of pardon on the Special Court and any other interpretation will defeat that intention of the legislature. Mr. Jethmalani also sought to invoke the doctrine of implied repeal. Pointing out that the Code is a general law and the Act--a special later enactment, Section 13 whereof shows its predominance and superiority, this Court should not have any reluctance to accept the applicability of doctrine of implied repeal in these matters, was the submission of learned counsel though he, very fairly and rightly, conceded that there is a presumption against a repeal by implication. The reason for the presumption as aforesaid is that the legislature while enacting a law has a comp....
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.... Learned counsel contends that this court will not construe the Act in a manner which will make Sections 306 and 307 or at least part of the said sections otiose and thereby defeat the legislative intendment whatever be the consequences of such an interpretation." 44. That if the argument of Mr. Chaudhary is to be accepted then Section 19 which pertains to the power of arrest would be rendered a dead letter on the Statute book if the offence under Section 3 is to be treated as non-cognizable and bailable, as argued by him. 45. Reference to the judgment of the Apex Court in Om Parkash's case (AIR 2012 SC 545) (supra), in the above facts and circumstances, is without any basis as the issue before the Apex Court was as to whether the offences under the Central Excise Act, 1944 and The Customs Act, 1962 are bailable since the offences were non-cognizable under the provisions of the Act itself. The offences and penalties pertained to punishment which may extend to 3 years or to 7 years and as per Section 18 of the Central Excise Act, the provisions of Cr.P.C. would apply relating to searches and arrests. It was in such circumstances, the Apex Court held that the of....
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.... Saving Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force." 48. The judgment relied upon by counsel for the petitioner in Deepak Mahajan's case (AIR 1994 SC 1775) (supra) does not come to his help. The Apex Court in that case had held that a person arrested under the Foreign Exchange Regulation Act, 1973 and which was pari materia with Section 104 of the Customs Act could be further detained under Section 167(2) of Cr.P.C. Accordingly, it was held that the provisions of Section 167(1) and (2) were applicable with regard to the production or detention of person arrested and the Magistrate could commit to custody a person taken from him or the customs officer. The power of investigation rather was held not only with the police officers but by the prosecuting agency who was invested with the power of investigation. The relevant observations read thus:-- "104. In our considered opinion, the view taken in O.P. Gupta&#....
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.... flexible so as to include the investigation carried on by any agency whether he be a police officer or empowered or authorised officer or a person not being a police officer under the direction of a Magistrate to make an investigation vested with the power of investigation." 49. Similarly, it was held that provisions of Section 167(2) would be applicable as the operation of Section 4(2), Cr.P.C. was applicable if there was no specific provision contrary to that excluding operation of Section 167(2). The above observations, thus, would be squarely applicable in the case of the persons accused under Sections 3 and 4 on the account of their being arrested in view of violation of Sections 3 and 4 and the competent court would then proceed to decide the application for bail keeping in mind the provisions under Section 46 of the PMLA. 50. It was also noticed that investigation was permissible under various regulations like the Foreign Exchange Regulation Act, 1973, Customs Act, 1962, The erstwhile Gold (Control) Act, 1968, The Prevention of Food Adulteration Act, 1954 and The Railways Property (Unlawful Possession) Act, 1966 which provided that the power of investigati....
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....e, the respondent could carry out investigations in exercise of its authorization under Section 13(3)(iv) of TOHO. While doing so, it could exercise such powers which are otherwise vested in it. But, as it could not file a police report but a complaint petition only; sub-section (2) of Section 167 of the Code may not be applicable. The provisions of the Code, thus, for all intent and purport, would apply only to an extent till conflict arises between the provisions of the Code and TOHO and as soon as the area of conflict reaches, TOHO shall prevail over the Code. Ordinarily, thus, although in terms of the Code, the respondent upon completion of investigation and upon obtaining remand of the accused from time to time, was required to file a police report, it was precluded from doing so by reason of the provisions contained in Section 22 of TOHO. To put it differently, upon completion of the investigation, an authorized officer could only file a complaint and not a police report, as a specific bar has been created by the Parliament. In that view of the matter, the police report being not a complaint and vice-versa, it was obligatory on the part of the respondent to choose th....
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....ce culminating with the filing of a police report and also proceedings to be initiated on the basis of a complaint by an empowered Officer in terms of Chapter XV of the Code. Therefore, when a police in terms of Code investigates into an offence including an offence under the Act, it files a report under Section 173 of the Code, whereas the investigation by an empowered officer under the Act leads to filing of a complaint in terms of Section 190 of the Code. 40. Thus, the argument that the statements of PW- 4 Constable Satpal Singh and PW-5 Shyam Kumar were neither recorded nor supplied to the appellants while filing complaint is not tenable in law. Such witnesses were not examined by the "police officials" during the course of investigations so as to record their statements as provided under Section 161 of the Code. It is the duty of the police official to record statement, supply copy of such statement, as part of the report under Section 173 of the Code, so as to enable the defence to contradict a witness while stepping into witness-box. But it is not necessary for the empowered Officer to record statements of the witnesses contemplated under Section 161 of the Code, as....
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.... precedent is to be taken into consideration and not the interim orders. Reference can be made to the observations made by the Apex Court in State of Assam v. Barak Upatyaka D.U. Karmachari Sanstha (2009) 5 SCC 694 : (AIR 2009 SC 2249, Para 10). Relevant observations of the judgment read as under: "21. A precedent is a judicial decision containing a principle, which forms an authoritative element termed as ratio decidendi. An interim order which does not finally and conclusively decide an issue cannot be a precedent. Any reasons assigned in support of such non-final interim order containing prima facie findings, are only tentative. Any interim directions issued on the basis of such prima facie findings are temporary arrangements to preserve the status quo till the matter is finally decided, to ensure that the matter does not become either infructuous or a fait accompli before the final hearing. 22. The observations and directions in Kapil Hingorani (I) and (II) being interim directions based on tentative reasons, restricted to the peculiar facts of that case involving an extraordinary situation of human rights violation resulting in starvation deaths and suicides ....
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....f the Schedule shall be released on bail or on his own bond, unless the Public Prosecutor has been given an opportunity to oppose the application for such release. [27] The learned Solicitor General lastly submitted that 'money laundering' being an economic offence poses a serious threat to the National Economy and National Interest and committed with cool calculation and deliberate design with the motive of personal gain regardless of the consequences to the society. Hence, for Money Launderers 'jail is the rule and bail is an exception, which finds support from many landmark judgments of this Court. [28] Before dealing with the application for bail on merit, it is to be considered whether the provisions of Section 45 of the PMLA are binding on the High Court while considering the application for bail under Section 439 of the Code of Criminal Procedure. There is no doubt that PMLA deals with the offence of money laundering and the Parliament has enacted this law as per commitment of the country to the United Nations General Assembly. PMLA is a special statute enacted by the Parliament for dealing with money laundering. Section 5 of the Code of Crimina....
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....is to be construed as a scheduled offence as the description of offence against Section 24 of the SEBI Act mentioned under paragraph 11 of the Schedule to PMLA is part of Section 12A of the said Act. In this context it was submitted by the learned Solicitor General that PMLA being a Special Statute cannot be given restricted meaning while interpreting its provisions including the Schedule which is an integral part of this Act. PMLA has been enacted by the Parliament as per commitment of the country to the United Nations and having global dimensions and cannot be confined to national boundaries of our country. Moreover, its legislative intent has to be gathered from the plain reading of the language used in the provisions of the Act and the Schedule appended thereunder. Hence, there is no ambiguity that Section 24 of the SEBI Act is a scheduled offence under Paragraph 11 of the Schedule. The fact remains that Section 24 of the SEBI Act is inclusive in nature and also includes Section 12A within its ambit and scope. Further, on perusal of various offences listed in the Schedule in 28 Paragraphs, it could be seen that only penal provisions of the Statutes have been incorporat....
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....diction, as has been pointed out before us. Hence, any observation or remarks made by us may cause prejudice to the case of both the sides. Therefore, we feel that it would be proper for us only to deal with the matter concerning bail. We note that admittedly the complaint is filed against the appellant on the allegations of committing the offence punishable under Section 4 of the PMLA. The contention raised on behalf of the appellant that no offence under Section 24 of the SEBI Act is made out against the appellant, which is a scheduled offence under the PMLA, needs to be considered from the materials collected during the investigation by the respondents. There is no order as yet passed by a competent court of law, holding that no offence is made out against the appellant under Section 24 of the SEBI Act and it would be noteworthy that a criminal revision praying for quashing the proceedings initiated against the appellant under Section 24 of SEBI Act is still pending for hearing before the High Court. We have noted that Section 45 of the PMLA will have overriding effect on the general provisions of the Code of Criminal Procedure in case of conflict between them. As mentioned earl....
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.... involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of country. In Union of India v. Hassan Ali Khan, (2011) 10 SCC 235 : (2011 AIR SCW 6592), this Court has laid down that what will be the burden of proof when attempt is made to project the proceeds of crime as untainted money. It is held in the said paragraph that allegations may not ultimately be established, but having been made, the burden of proof that the monies were not the proceeds of crime and were not, therefore, tainted shifted on the accused persons under Section 24 of the PML Act, 2002. The same proposition of law is reiterated and followed by the Orissa High Court in the unreported decision of Smt. Janata Jha v. Assistant Director, Directorate of Enforcement (CRLMC No. 114 of 2011 decided on December 16, 2013 : (2014 Cri. L.J. 2556 (Ori.)). Therefore, taking into account all these propositions of law, we feel that the application for bail of the appellant should be seen at this stage while the appellant is involved in the economic offence, in general, and for the offe....