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2024 (3) TMI 1138 - HC - Money LaunderingInvocation of jurisdiction of this Court under Section 482 of the Cr.P.C - cognizance of offences on basis of supplementary complaint filed by the respondent against the petitioner second time - petitioner has challenged the impugned order primarily on the ground that it was not open to the learned Special Judge to take cognizance of the offences second time and to issue process against the petitioner who was already facing prosecution before the Special Judge in the first complaint filed by the respondent against him before the said Court. Whether the supplementary complaint could have been filed by the respondent against the petitioner and co-accused in respect of the same occurrence which is subject matter of the initial complaint? - HELD THAT - Section 173 (8) of Code of Criminal Procedure 1973 which authorises the Police to conduct further investigation into an offence even after challan has been produced before the Court is therefore applicable to the investigation of cases under PMLA. This view finds further strength from the provisions contained in Clause (ii) of the Explanation to sub section (1) of Section 44 of PMLA which provides that the complaint would include any subsequent complaint in respect of further investigation that may be conducted to bring any further evidence oral or documentary against any accused person involved in respect of the offence for which complaint has already been filed whether named in the original complaint or not - there is no manner to doubt in holding that a supplementary complaint can certainly be filed by the respondent-Enforcement Directorate against an accused who is already facing prosecution for offence under Section 3 of the PMLA before the Special Judge. The irresistible conclusion that can be drawn is that once the power of investigation is vested in an agency and further investigation is carried out by the said agency in order to place on record material collected during further investigation it is open to the said investigating agency to file a supplementary complaint. Whether the learned Special Judge was justified in taking cognizance of offence on the second occasion and issue process against the petitioner on the basis of the supplementary complaint? - HELD THAT - In the case of CREF FINANCE LTD. VERSUS SHREE SHANTHI HOMES PVT. LTD. ANR. 2005 (8) TMI 664 - SUPREME COURT the Supreme Court has held that once the Magistrate applies his judicial mind with reference to the commission of an offence the cognizance is taken at that very moment - it is clear that taking of cognizance would mean application of mind by the Magistrate/Court to the offence alleged to have been committed. It is also clear that cognizance is to be taken of the offence and not of the offender. Whether a Magistrate can take cognizance of an offence more than once upon filing of supplementary challan/supplementary complaint? - HELD THAT - It is well settled that cognizance of an offence/offences can be taken only once. If cognizance of the offences has been taken by a Court/ Magistrate the same cannot be taken again for the second time. The cognizance of the offences under Sections 3/4 of the PMLA was taken by the Special Judge on 16.07.2018 when the initial complaint was filed by the respondent against the petitioner and the co-accused in the year 2018 therefore upon filing of the supplementary complaint by the respondent in respect of the same offence against the petitioner and the co-accused the learned Special Judge could not have taken the cognizance of the offences once again and issued process the petitioner and the co-accused who were already facing prosecution before the learned Special Judge - Upon filing of supplementary complaint the only course left to the learned Special Judge was to take on record the said supplementary complaint and proceed ahead with the prosecution of the petitioner and the co-accused who are already facing prosecution before the learned Special Judge on the basis of initial complaint. The impugned order passed by the learned Special Judge is set aside with a direction to pass fresh order in the manner indicated hereinbefore and to proceed ahead in the matter in accordance with the law - Appeal allowed.
Issues Involved:
1. Whether the supplementary complaint could have been filed by the respondent against the petitioner and co-accused in respect of the same occurrence, which is the subject matter of the initial complaint. 2. Whether the learned Special Judge was justified in taking cognizance of the offence on the second occasion and issuing process against the petitioner on the basis of the supplementary complaint. Summary: Issue 1: Filing of Supplementary Complaint The petitioner challenged the order dated 25.08.2023 by the Principal Sessions Judge (Special Court, Designated under PMLA), Jammu, which took cognizance of offences based on a supplementary complaint and issued process against him. The petitioner argued that filing a supplementary complaint is not permissible as there is no provision akin to \u/s\ 173 (8) of the Cr.P.C. for complaint cases. However, the court noted that \u/s\ 2(h) of the Cr.P.C. and \u/s\ 2(na) of the PMLA define 'investigation' broadly, including proceedings conducted by the Enforcement Directorate. \u/s\ 65 of the PMLA, the provisions of the Cr.P.C. apply to PMLA investigations, making \u/s\ 173 (8) applicable. The court cited the Supreme Court's judgment in Amit Banerjee vs. Majoj Kumar, which supports the filing of supplementary complaints in PMLA cases. Additionally, the court referenced the Division Bench of the Himachal Pradesh High Court in Khekh Ram vs. Narcotics Central Bureau, which upheld the legality of supplementary complaints after obtaining court leave. Therefore, the court concluded that a supplementary complaint is permissible. Issue 2: Taking Cognizance Again The petitioner contended that the Special Judge could not take cognizance of the offences a second time based on the supplementary complaint. The court explained that 'taking cognizance' means the judicial notice of an offence with a view to initiating proceedings. Citing various Supreme Court judgments, including Fakhruddin Ahmad vs. State of Uttaranchal and Anr. and Mona Panwar Vs. High Court of Judicature at Allahabad and ors., the court clarified that cognizance is taken of the offence, not the offender, and it occurs when the Magistrate applies his mind to the allegations. The court emphasized that cognizance can only be taken once. Referring to the Supreme Court's decision in State of West Bengal vs. Salap Service Station and others, the court noted that further investigation may disclose fresh offences, but cognizance is not taken again. The Delhi High Court's judgment in Yogesh Mittal vs. Enforcement Directorate further supported this view. Consequently, the court held that the Special Judge erred in taking cognizance again and issuing process based on the supplementary complaint. The proper course was to take the supplementary complaint on record and proceed with the ongoing prosecution. Conclusion: The impugned order by the Special Judge was set aside, with directions to pass a fresh order in accordance with the law. The Special Judge should take the supplementary complaint on record and continue with the prosecution based on the initial complaint.
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