TMI Blog2022 (11) TMI 502X X X X Extracts X X X X X X X X Extracts X X X X ..... to give evidence. Sub-Section (3) of Section 50 directs that all persons so summoned shall be bound to attend in person or through authorized agents and shall be bound to state the truth upon any subject with respect to which they are examined or make statements and produce documents as may be required. Therefore, the authority under the PMLA does have power to summon and record statement of witnesses in terms of Section 50 of the Act - If the ED wants to invoke the provisions of the PMLA to discern the offence under Section 3 of the PMLA, the designated Court is the Court of Session alone which had the power to even consider any application emanating from the provisions of the PMLA as the offence supra, Section 43 supra and Section 71 clearly mean that the designate Court to try anything emanating from the PMLA is the Special Court and the Special Court is the Court of Session. Section 71 has overriding effect on any law. A Three Judge Bench of the Apex Court in the case of HARSHAD S.MEHTA [ 2001 (9) TMI 991 - SUPREME COURT] followed the judgment in the case of A.R.ANTULAY [ 1984 (2) TMI 317 - SUPREME COURT] to hold, if a Special Court is created under the provisions of a spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2022. 4. The issue in the case at hand is not with regard to merits of the matter concerning either of the crimes. What drives the petitioner to this Court is that on 30-08-2022 the 3rd respondent/ Directorate of Enforcement ( ED for short) files an application under Section 50(3) of the Prevention of Money Laundering Act, 2002 ( the PMLA for short) before the concerned Court i.e., the learned Magistrate in C.C.No.25035 of 2022 seeking permission to record written statement of five accused including the petitioner who are in judicial custody and to allow two officers of the ED with a laptop and a printer for the purpose of recording the statements and also sought a direction to the Jail Authorities to cooperate for recording of such statements. The petitioner filed his objections to the said application on 05-09-2022. The learned Magistrate considering both the application and the objection filed, allows the application and permits the ED to record the statements as was sought for in the application. It is this order of the learned Magistrate that drives the petitioner to this Court. 5. The learned senior counsel Sri Sandesh J.Chouta, appearing for the petitioner would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner are sought to be recorded by the respondent/ED to consider whether there is an offence made out against the petitioner for offences punishable under the PMLA. Now PMLA would mean offences punishable under Chapter II which deals with offence of money laundering. Chapter-II encompasses within itself Sections 3 and 4 of the PMLA. Sections 3 and 4 thereof read as follows: 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 with the 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. Explanation .-For the removal of doubts, it is hereby clarified that,- (i) a person shall be guilty of offence of money-laundering if such person is found to have directly or indirectly attempted to indulge or knowingly assisted or knowingly is a party or is actually involved in one or more of the following processes or activities connected with proceeds of crime, namely- (a) concealment; or (b) possession; or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 44 of the PMLA reads as follows: 44. Offences triable by Special Courts.-( 1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- (a) an offence punishable under Section 4 and any scheduled offence connected to the offence under that section shall be triable by the Special Court constituted for the area in which the offence has been committed: Provided that the Special Court, trying a scheduled offence before the commencement of this Act, shall continue to try such scheduled offence; or (b) a Special Court may, upon a complaint made by an authority authorised in this behalf under this Act take cognizance of offence under Section 3, without the accused being committed to it for trial: Provided that after conclusion of investigation, if no offence of money laundering is made out requiring filing of such complaint, the said authority shall submit a closure report before the Special Court; or (c) if the court which has taken cognizance of the scheduled offence is other than the Special Court which has taken cognizance of the complaint of the offence of money-laundering under subclause (b), it shall, on an applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the attendance of any person, including any officer of a reporting entity, and examining him on oath; (c) compelling the production of records; (d) receiving evidence on affidavits; (e) issuing commissions for examination of witnesses and documents; and (f) any other matter which may be prescribed. (2) The Director, Additional Director, Joint Director, Deputy Director or Assistant Director shall have power to summon any person whose attendance he considers necessary whether to give evidence or to produce any records during the course of any investigation or proceeding under this Act. (3) All the persons so summoned shall be bound to attend in person or through authorised agents, as such officer may direct, and shall be bound to state the truth upon any subject respecting which they are examined or make statements, and produce such documents as may be required. (4) Every proceeding under sub-sections (2) and (3) shall be deemed to be a judicial proceeding within the meaning of Section 193 and Section 228 of the Indian Penal Code (45 of 1860). (5) Subject to any rules made in this behalf by the Central Government, any officer referred to in su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents of the petitioner including others who are in judicial custody concerning C.C.No.25035 of 2022 are sought to be recorded. Therefore, the application was filed before the concerned Court. The application so filed before the concerned Court by the ED is titled APPLICATION TO RECORD STATEMENTS UNDER SECTION 50(3) OF THE PREVENTION OF MONEY LAUNDERING ACT, 2002 and the plea of the ED before the learned Magistrate is as follows: 1. Shailendra Kumar Choubey, working as Assistant Director in the Directorate of Enforcement, Bengaluru begs leave to this Court to file this application to record statement of the respondent No.2/accused No.1. Respondent No.29/Accused No.28, Respondent No.31/ Accused No.30, Respondent No.32/Accused No.31 and Respondent No.28/Accused No.27 (who are under the judicial custody of this Hon ble Court), by virtue of Section 50(2) (3) of the Prevention of Money Laundering Act, 2002 (hereinafter referred to as an Act ; for the sake of brevity), as such I am well conversant with the facts of the case from the office records. 2. It is humbly submitted that the Applicant is the Investigating Officer and authorized to investigate cases under Section 48 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in custody concerning C.C.No.25035 of 2022 and the said custody is ordered by the learned Magistrate. Merely because custody is ordered by the learned Magistrate, he cannot be clothed with the powers of a Court of Session, which alone has the power to consider any application of the kind that was made before the learned Magistrate. The learned Magistrate was dealing with an application filed under Section 50 of the PMLA. It was completely without jurisdiction for the learned Magistrate to have considered the application filed under Section 50 of the PMLA. It ought to have been placed before the concerned Court for taking permission to record the statements as it is trite that the Special Court can always have the power of the Magistrate and not the other way round since it touches upon the jurisdiction. PMLA mandates that anything emanating from the PMLA shall be considered only by the Special Court. 11. The answer to a question concerning jurisdiction, can be either a yes or a no and never be may be . Since the unequivocal interpretation of the PMLA is that everything shall be placed before the Special Court, the application so filed under Section 50 of the PMLA could not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reads thus: 44. Offences triable by Special Courts.-( 1) Notwithstanding anything contained in the Criminal Procedure Code, 1973 (2 of 1974),- (a) an offence punishable under section 4 and any scheduled offence connected to the offence under that section shall be triable by the Special Court constituted for the area in which the offence has been committed: Provided that the Special Court, trying a scheduled offence before the commencement of this Act, shall continue to try such scheduled offence; or (b) a Special Court may, upon a complaint made by an authority authorised in this behalf under this Act take cognizance of offence under section 3, without the accused being committed to it for trial Provided that after conclusion of investigation, if no offence of money-laundering is made out requiring filing of such complaint, the said authority shall submit a closure report before the Special Court; or (c) if the court which has taken cognizance of the scheduled offence is other than the Special Court which has taken cognizance of the complaint of the offence of money-laundering under subclause (b), it shall, on an application by the authority autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) Notwithstanding anything contained in the Criminal Procedure Code, 1973 (2 of 1974),- (a) the scheduled offence and offence punishable under Section 4 shall be triable only by the Special Court constituted for the area in which the offence has been committed: Provided that the Special Court, trying a scheduled offence before the commencement of this Act, shall continue to try such scheduled offence; or. 355. Post amendment of 2013 and as applicable to this date, Clause (a) reads thus: 44. Offences triable by Special Courts.-( 1) Notwithstanding anything contained in the Criminal Procedure Code, 1973 (2 of 1974),- Provided that the Special Court, trying a scheduled offence before the commencement of this Act, shall continue to try such scheduled offence; or; (a) an offence punishable under section 4 and any scheduled offence connected to the offence under that section shall be triable by the Special Court constituted for the area in which the offence has been committed: . 356. The amendment of 2013 in fact clarifies the dispensation to be followed in regard to trials concerning offence of money-laundering under this Act and the tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n accordance with law, this Court suo motu withdrew the Special Cases No. 24/82 and 3/83 (arising out of a complaint filed by one P.B. Samant) pending in the Court of Special Judge, Greater Bombay, Shri R.B. Sule and transferred the same to the Bombay High Court with a request to the learned Chief Justice to assign these two cases to a sitting Judge of the High Court for holding the trial from day to day. These directions were given, according to the appellant, without any pleadings, without any arguments, without any such prayer from either side and without giving any opportunity to the appellant to make his submissions before issuing the same. It was submitted that the appellant's right to be tried by a competent court according to the procedure established by law enacted by Parliament and his rights of appeal and revision to the High Court under Section 9 of the 1952 Act had been taken away. . . 14. P.S. Shah, J. to whom the cases were referred to from D.N. Mehta. J. on 24-7-1986 proceeded to frame as many as 79 charges against the appellant and decided not to proceed against the other named co-conspirators. This is the order impugned before us. Being aggri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court for trial by it. Section 406 of the Code deals with transfer of criminal cases and provides power to this Court to transfer cases and appeals whenever it is made to appear to this Court that an order under this section is expedient for the ends of justice. The law provides that this Court may direct that any particular case or appeal be transferred from one High Court to another High Court or from a criminal court subordinate to one High Court to another criminal court of equal or superior jurisdiction subordinate to another High Court. Equally Section 407 deals with the power of the High Court to transfer cases and appeals. Under Section 6 of the 1952 Act, the State Government is authorised to appoint as many Special Judges as may be necessary for such area or areas for specified offences including offences under the Act. Section 7 of the 1952 Act deals with cases triable by Special Judges. The question, therefore, is whether this Court under Section 406 of the Code could have transferred a case which was triable only by a Special Judge to be tried by the High Court or even if an application had been made to this Court under Section 406 of the Code to transfer the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cri) 172: (1984) 2 SCR 495, 557] this Court directed transfer to the High Court of Bombay the cases pending before the Special Judge. It is true that Section 7(1) and Section 6 of the 1952 Act were referred to while dealing with the other matters but while dealing with the matter of directions and giving the impugned directions, it does not appear that this court kept in mind the exlusiveness of the jurisdiction of the Special Court to try the offences enumerated in Section 6. . . 59. Here the appellant has a further right under Article 21 of the Constitution - a right to trial by a Special Judge under Section 7(1) of the 1952 Act which is the procedure established by law made by the Parliament, and a further right to move the High Court by way of revision or first appeal under Section 9 of the said Act. He has also a right not to suffer any order passed behind his back by a court in violation of the basic principles of natural justice. Directions having been given in this case as we have seen without hearing the appellant though it appears from the circumstances that the order was passed in the presence of the counsel for the appellant, these were bad. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. Under the Code, it will enjoy all powers which a court of original criminal jurisdiction enjoys save and except the ones specifically denied. ... 62. Our conclusion, therefore, is that the Special Court established under the Act is a court of exclusive jurisdiction. Sections 6 and 7 confer on that court wide powers. It is a court of original criminal jurisdiction and has all the powers of such a court under the Code including those of Sections 306 to 308. A Three Judge Bench of the Apex Court in the case of HARSHAD S.MEHTA followed the judgment in the case of A.R.ANTULAY (supra) to hold, if a Special Court is created under the provisions of a special enactment, the proceedings falling under that enactment shall be held only before the Special Court. For this purpose the Apex Court holds that the Special Court enjoys all the powers of the court of original jurisdiction and it holds a dual capacity and powers of both the Magistrate and the Court of Session depending upon the stage of the case. 13. In the light of the statutory frame work of the PMLA and the application filed under Section 50 of the Act, this Court is of the considered view that the appli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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