TaxTMI 
TaxTMI 
2020 (12) TMI 1373
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....2 of the Code of Criminal Procedure (`Cr.P.C.'), the petitioner-Directorate of Enforcement (`ED') seeks quashing and setting aside of the impugned order dated 19th September 2020 passed by the learned Additional Chief Metropolitan Magistrate, 38th Court, Ballard Pier, Mumbai below Exhibit 6, by which the learned Magistrate rejected the petitioner's application seeking to intervene in the closure report filed by the respondent No.1-State of Maharashtra in the Court of the learned Magistrate, as well as the order dated 15th October 2020 passed by the learned Additional Sessions Judge, Greater Mumbai in Criminal Revision Application No. 400 of 2020. 2 The short question that arises in the aforesaid petition is, the locus of the petitioner-ED in a closure report filed by the State of Maharashtra before the Magistrate, in a case registered at the behest of respondent No.2-Akbar Travels (India) Pvt. Ltd. 3 A few facts as are necessary to decide the aforesaid petition, are as under : The respondent No. 2-Akbar Travels (India) Pvt. Ltd. filed a private complaint in the Court of the learned Metropolitan Magistrate at Ballard Pier, Mumbai, alleging offences punishable under Sections 120-B....
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....ondent No.2-Akbar Travels (India) Pvt. Ltd. forwarded a copy of the said closure report to the petitioner's office on 11th June 2020 via email. The respondent No. 2- Akbar Travels (India) Pvt. Ltd. filed a Protest Petition before the learned Magistrate. On 15th June 2020, the petitioner-ED also filed its Protest Petition in the Court of the learned Metropolitan Magistrate. According to the petitioner, the respondent No. 1-State had not conducted the investigation in a proper manner. In the said Protest Petition, the petitioner prayed that the closure report filed by the respondent-State may not be accepted and a suitable direction may be issued to carry out further investigation in the case, including into the undisclosed accounts and assets of respondent No. 3 and its family members and the related entities and all their transactions with respondent No. 3 i.e. M/s. Jet Airways (India) Ltd. The said Protest Petition filed by the petitioner (Exhibit 6) was rejected by the learned Metropolitan Magistrate, Mumbai, vide order dated 19th September 2020, after observing that the petitioner had no locus standi to intervene, especially when the informant-complainant himself was appearing i....
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....an injured person, thus falling within the definition of the term `victim'. He submitted that there are several deficiencies in the investigation carried out by the respondent No.1-State and as such it is incumbent on the petitioner, being a Government Agency, to bring the same to the notice of the learned Magistrate. Learned ASG also submitted that the learned Sessions Judge, once having held that the revision was not maintainable, ought not to have gone into the merits of the case with respect to the locus standi of the petitioner. He further submitted that even the learned Magistrate has not considered the petitioner's locus standi in its proper perspective, having regard to the judgments relied upon by the petitioner. 5 Mr. Singh, learned ASG relied on the judgments in the case of Sheonandan Paswan vs. State of Bihar & Ors. (Supreme Court) (1987) 1 SCC 288; R. Dharmalingam vs. State & Ors. (Madras High Court) 2020 Cri.L.J. 1300; Sudipta Sen vs. The State of West Bengal (Calcutta High Court) Laws (Cal) 2000-9-68; Abhinandan Jha & Ors. vs. Dinesh Mishra (Supreme Court) Manu/SC/0054/1967; Ratanlal vs. Prahlad Jat & Ors. Manu/SC/1202/2017; A. R. Antulay vs. R. S. Nayak (Suprem....
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....o provision in law which permits a Magistrate to allow a third party like the petitioner-ED to intervene in proceedings under Section 169 Cr.P.C and that the Magistrate is bound to follow the provisions of Cr.P.C and the precedents. He submitted that the subordinate judiciary unlike Civil Courts have no inherent powers and that the inherent powers under Section 482 vest only with the High Courts and the Supreme Court. In this regard, learned senior counsel placed reliance on the judgment of the Apex Court in the case of Major General A. S. Gauraya & Anr. vs. S. N. Thakur & Anr. (1986) 2 SCC 709, wherein the Apex Court had the occasion to address the question whether a subordinate criminal court has any inherent jurisdiction outside the provisions of the Cr.P.C, and had answered the same in the negative. Learned senior counsel does not dispute the propositions laid down in the various judgments relied upon by the learned ASG, however, submits that the same will not apply to the facts in hand. He submitted that as per the law laid down in the case of Bhagwat Singh (supra), only three categories of persons are permitted to intervene/can be heard i.e. (i) the complainant or informant i....
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....aharashtra and the protest petition filed by the respondent No. 2-Akbar Travels (India) Pvt. Ltd., after hearing the necessary parties having locus before the said Court, by passing appropriate orders on the same. 11 Having heard learned ASG for the petitioner and the learned counsel for the respondents and having perused several judgments relied upon by the respective parties, the answer to the question raised in the aforesaid petition, with respect to the locus of the petitioner-ED in a closure report filed by the respondent No. 1-State of Maharashtra in a case registered at the behest of respondent No.2-Akbar Travels (India) Pvt. Ltd. is, in the negative, for the reasons set out hereinunder. 12 Admittedly, the respondent No. 2-Akbar Travels (India) Pvt. Ltd. filed a private complaint as against respondent Nos. 3 to 5 in the Court of the learned Metropolitan Magistrate at Ballard Pier, Mumbai, praying therein for an order under Section 156(3) Cr.P.C. The learned Magistrate was pleased to pass an order under Section 156(3), pursuant to which, the M.R.A Marg Police Station registered an FIR being C.R. No. 66 of 2020 as against respondent Nos. 3 to 5 for the alleged offences punis....
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....tion of the report. It was urged before us on behalf of the respondents that if in such a case notice is required to be given to the informant, it might result in unnecessary delay on account of the difficulty of effecting service of the notice on the informant. But we do not think this can be regarded as a valid objection against the view we are taking, because in any case the action taken by the police on the First Information Report has to be communicated to the informant and a copy of the report has to be supplied to him under sub-section (2)(i) of Section 173 if that be so, we do not see any reason why it should be difficult to serve notice of the consideration of the report on the informant. Moreover, in any event, the difficulty of service of notice on the informant cannot possibly provide any justification for depriving the informant of the opportunity of being heard at the time when the report is considered by the Magistrate. 5. The position may however, be a little different when we consider the question whether the injured person or a relative of the deceased, who is not the informant, is entitled to notice when the report comes up for consideration by the Magistrate.....
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....ged and the expression "victim" includes his or her guardian or legal heir." 16 A Division Bench of this Court (Coram : Indrajit Mahanty (as he then was) and A. M. Badar, JJ.) in the case of Mahendrasinh Jorubha Zala (supra), whilst considering the definition of the term `victim' observed in paras 11 and 12 as under : "11 Now let us examine who can be said to be a victim competent to prefer an appeal challenging acquittal under Section 372 of the Cr.P.C. Section 2(wa) of the Cr.P.C. defines the term victim. It reads thus : "2(wa) "victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim" includes his or her guardian or legal heir." (emphasis supplied) In the matter of Manoj Kumar Singh (supra) the Full Bench of the Allahabad High Court, in paragraph 54, has interpreted this definition of the term victim and it reads thus: "54 In nutshell, it can be concluded that victim means the actual sufferer of offence (receiver of harm caused by the alleged offence) and no person other than actual receiver of harm can be treated as victim of offence, so as to provid....
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....o ensure that the culprits are properly prosecuted. Learned ASG submitted that the petitioner-ED would fall in the category of interested person, as the agency i.e. ED is not only entrusted in bringing the offenders to book, but is also entrusted with the task of ensuring that money laundering does not take place. He further submitted that the petitioner-ED, being intrinsically interested in the outcome of the FIR, is entitled to be heard before the closure report is accepted. Reliance placed by the learned ASG on the observations in the judgments relied upon, stating the object and reasons for enacting the PMLA, cannot be disputed. However, the judgments relied upon, have no bearing in the facts of the case, inasmuch as, the said judgments pertain to rejection of bail under the PMLA. Having considered the law in this regard, the petitioner-ED, by no stretch of imagination, can either be construed to be a victim or an aggrieved/injured/interested person, thus entitling them to be heard before the Magistrate decides whether the closure report ought to be accepted or not. The respondent No. 1-State of Maharashtra is the investigating agency in the present case, who has filed the clos....
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....ased, as stated hereinabove. 20 Reliance placed by Mr. Dubey appearing for respondent No. 2 in the case of Nahar Singh Yadav (supra) is also misplaced. In the said case, the Supreme Court was dealing with Section 406(2) Cr.P.C i.e. power of Supreme Court to transfer cases and appeals. In the said case, the CBI was considered to be an interested party. The powers of Section 406 Cr.P.C cannot be equated with the facts of the present case, inasmuch as, the term `interested party' does not find place in the definition of the term `victim' as defined under Section 2(wa) Cr.P.C or in the judgments referred to hereinabove. Hence, reliance placed on the said judgment is misplaced. 21 Reliance placed by the learned ASG on the judgment of the Apex Court in the case of Sheonandan Paswan (supra), is also misplaced. It is pertinent to note that the observations made in para 14 with respect to the issue of locus to withdraw prosecution, on which reliance is placed by the learned ASG is the minority view of the Judges, whereas, the majority judgment had not adhered to the same and the same is evident from para 36 of the said judgment. Infact, this Court in the case of Harsh Mandar (supra) has c....