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2019 (1) TMI 1859 - HC - Money LaunderingMoney Laundering - criminal conspiracy with other accused - scheduled offences - requirement or non-requirement of any sanction to take cognizance for the offences against the officials as accused - whether the Act is a complete code covering all areas as contended and if not to what area with reference to Sections 4 & 5 Cr.P.C. the provisions of Cr.P.C. as general law either specially made applicable by the special provisions or from its silence so to apply unless shown deemed not applicable? - HELD THAT:- Against transactions constituting money-laundering, the provisions of the Act contemplate two sets of proceedings; (a) prosecution for the offence of money-laundering defined in Sec. 3 with the punishment provided in Sec. 4; and (b) attachment, adjudication and confiscation in the sequential steps and subject to the conditions and procedures enumerated in Chapter III of the Act and out of the two now we are concerned with the first set of the proceedings for prosecution covered by the offence of money laundering as ascribed in Sections 3 r/w 2(p) of the Act in an expansive locus as comprehending direct or indirect attempt to indulge; assist, be a party to or actually involved knowingly in any process or activity connected with the proceeds of the crime and projecting it as untainted property and on proof of guilt for punishment of the offenders of Money-Laundering, as provided in Section 4 of the Act, that would follow after a due cognizance of the offence with pre-trial enquiry if any and trial by the Special Court; which is conferred exclusive jurisdiction qua Section 44, Chapter VII of the Act. The prosecution, trial and conviction for the offence of Money-laundering are thus the criminal sanction administered by the Legislation and effectuated by a deprivation of personal liberty as a disincentive to a malfeasant. Section 71 of the Act clearly speaks that the provisions of the Act shall have effect notwithstanding inconsistent therewith contained in any other law for the time being in force. It has the overriding effect to the provisions of the Act over any other law for the time being in force provided it is shown that other law is inconsistent with the provisions of the Act. It is to be seen therefrom whether the Act not covered any area and if so whether the Cr.P.C. provisions then applicable provided those are not inconsistent with the provisions of this Act, leave about other any law-in force for the time being to consider any inconsistency from any provisions thereunder. From this now coming to the Section 46 of the Act at the cost of repetition it specifically speaks that Cr.P.C. provisions are applicable to the proceedings before the Special Court. From what Section 46 reproduced supra, Section 46(1) from the very wording supra of save as otherwise provided in this Act the provisions of the code in entirety which includes provisions as to bails or bonds shall apply to the proceedings before the special Court and for the purpose of said provisions the special Court shall be deemed to a Court of Session. Thus Cr.P.C. is applicable to the proceedings before the special Court save as otherwise specifically provided in the Act if not inconsistent therewith in the Act or anything inconsistent therewith to prevail to the extent the Act provisions specifically provided as special law taking away of the application of the Cr.P.C. provisions. Thus, the Act provisions are applicable in addition to and not in derogation to what is specially provided in the Act. The contention has no legs to stand in saying to prosecute the Chairman and Managing Director of APIIC sanction under Section 197 Cr.P.C. is not required or that he is though an IAS Officer not a public servant - In fact this Court in L.V. Subrahmanyam v. State of Telangana, where he was arrayed as A11 and the petitioner herein was A1, it is categorically observed that they are public servants and sanction is required under Section 197 Cr.P.C. and under Section 19 of PC Act respectively for the IPC offences and PC Act offences and also discussed the role of the Chairman and Managing Director of APIIC as limited. It is crystal clear that for filing of a private complaint to take cognizance before the special court by the competent authority, obtaining and filing of the orders granting sanction by the competent authority to prosecute the public servant is mandatory and more particularly for the special court to take cognizance which is lacking in the case on hand and for want of sanction the cognizance orders respectively of the learned Special Judge are no way sustainable and are liable to be set aside - On the scope of requirement of sanction under Section 197 Cr.P.C. and it's marked difference with Section 19 of PC Act, this Court in LV Subrahmanyam supra dealt with in detail particularly at Paras 44 & 45 and negated as untenable the contention of the learned Special Public Prosecutor for CBI of validity or otherwise of sanction and requirement or not is a matter to be considered in trial, by answering the scope of law in this regard from Paras 47 to 49 in saying once it is noticed about the sanction is required and it is brought to the notice of the Court of the prosecution no way sustains for want of sanction the continuation of the proceedings is nothing but abuse of process and to sub serve the ends of justice the inherent power or writ jurisdiction has to be invoked in saying ends of justice are more important and Court cannot shut its size when brought to the notice of the Court any abuse of process leading to injustice, but for invoking the inherent power or writ jurisdiction which have no limitations but self imposed that too mainly to sub serve the ends of justice having its roots in necessity and its breadth thereby is coextensive with necessity. All the three criminal petitions are allowed by setting aside the respective cognizance orders of the learned Special Judge holding that sanction to prosecute the respective petitioners in the respective cases as public servants is mandatory and prerequisite to take cognizance and from its lacking the learned Special Judge should not have been taken cognizance and the cognizance orders thereby are unsustainable, by directing further the learned Special Judge to return said complaints to the complainant/s if at all to submit with necessary sanction orders from the competent authority respectively.
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