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2013 (8) TMI 1025 - ALLAHABAD HIGH COURT

2013 (8) TMI 1025 - ALLAHABAD HIGH COURT - TMI - Criminal Misc. Writ Petition No. 4909 of 2010. - Dated:- 1-8-2013 - N.A. MOONIS, L.K. MOHAPATRA AND SUSHIL HARKAULI. JUDGEMENT (Delivered by Hon'ble L.K.Mohapatra, J.) The prayers in this writ application are for a direction to the Enforcement Directorate (the respondent no. 4) to take up the investigation of Crime Case No. 458/09 registered for commission of offences under Sections 420/467/471/120-B of the Indian Penal Code read with Sections .....

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ge, status and manner of investigation to this Court and to direct the Enforcement Directorate and the Special Cell of the Economic Offences Wing to complete the investigation in the aforesaid case in a time-bound manner within such period as may be deemed just and proper. The limited issue before this Court for the present is as to whether the Enforcement Directorate is required to file the Final Form before the designated Court or not. But before deciding the issue raised in this writ applicat .....

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F.I.R. related to the period when the respondent no. 7, Amar Singh was Chairman of the Uttar Pradesh Development Council in the the year 2003. The substance of the allegations is that Amar Singh while holding the office of the Chairman of the Uttar Pradesh Development Council, misused his official position and awarded various government contracts worth thousands of crores to companies owned and controlled by him and he also received kickbacks in the form of commission. It was also alleged in the .....

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lkata High Court dated 31.12.2003 and 31.01.2005. Those 41 companies were shell companies with little or no business. Therefore, the amalgamation process was a deception and in the process of amalgamation, the companies in which Amar Singh had controlling shares were enriched by wealth of around 400 crores. Thus, he was in possession of wealth disproportionate to his known sources of income and misused his position by indulging in Money-Laundering business by conspiring with other Directors, off .....

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ing for monitoring the investigation, the following direction was issued. "In the above perspective we are of the view that regard being had to the various materials on record and also considering the averments made in the writ petitions and also in counter and rejoinder affidavits, we are of the firm view that it is a pre-eminently fit case for exercise of extra-ordinary power and the matter needs thorough probe by Special Cell as the matter of has national ramifications. Regard being had .....

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all be submitted by the Enforcement Directorate within one month after receipt of papers." An application for modification of the above order was filed on behalf of the Enforcement Directorate. When the case was taken up on 30th September, 2011, the Division Bench directed the Enforcement Directorate to continue investigation with Money-Laundering matter only and the case was adjourned. The learned counsel appearing for the Enforcement Directorate was also directed to inform the Court about .....

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igation has already been completed and as no material for constituting the offence alleged could be made available to the investigating agency, Final Form under Section 173 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') has been filed before the concerned Magistrate and now it is awaiting acceptance or other order by the learned Magistrate. It prima facie appears from the proviso to section 17(1) and more importantly the proviso to section 18 (1) of the P .....

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ate can initiate investigation into money -laundering allegations. In that view the investigation done by the directorate under the interim orders passed herein, even before a charge-sheet by the police regarding any scheduled offence having been committed, was premature. So far as the offences under the Money-Laundering Act are concerned, it was informed by the learned counsel appearing for the Enforcement Directorate that the investigation has been completed but on the basis of materials made .....

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re this Court, to file protest petition, if not satisfied with the investigation. If the final report is accepted by the Magistrate, subject to any successful challenge to his order, the investigation by the Enforcement Directorate will become redundant. In the event of rejection of the final report, and issue of process or a direction of further investigation and a consequent charge-sheet, the investigation of the Directorate will assume relevance. So far as the investigation conducted by the E .....

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n by the Directorate, requested the learned counsel to address on the question. Long arguments were advanced by the learned senior counsel appearing for all the parties on this issue but we need not refer to all those arguments as the answer can be found in the relevant statute. It was contended on behalf of the Enforcement Directorate that there is no provision in the Money-Laundering Act for filing of a Final Form when after investigation no material is found against an accused for submission .....

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perusal of the said Section we find that the provisions of the Code, insofar as they are not inconsistent with the provisions of the Money-Laundering Act, shall apply in respect of arrest, search and seizure, attachment, confiscation, investigation, prosecution and all other proceedings under the Money-Laundering Act. The term 'investigation' has not been defined in the Money-Laundering Act but it has been defined in the Code. With reference to the said definition of the term 'invest .....

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ed below: "(h) "investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf;" The question as to whether the term 'investigation' shall include submission of Final Form or not, has been set at rest by the Supreme Court in the case of H.N.Rishbud and another vs. State of Delhi reported in (A.I.R. 1955 SC 196). The rele .....

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nto writing, if the officer thinks fit, (b) the search of places or seizure of things considered necessary for the investigation and to be produced at the trial, and (5) Formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge-sheet under Section 173." Similar view has also been expressed by the learned Single Judge of Orissa High Court in th .....

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d in the said provision including nature of the information and as to whether any offence appears to have been committed and if so, by whom. It will also include filing of the final report, if no material is found during investigation for submission of a charge sheet. It will not be out of place to say that when an investigation is conducted in respect of scheduled offences and no material is found to support the allegations during the investigation, Final Form is also submitted under Section 17 .....

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e said Act against an accused keeping the public, the complainant and most importantly the Court in dark regarding nature and extent of investigation and outcome thereof. Lack of judicial scrutiny, coupled with lack of transparency would confer too excessive a power/discretion upon the Director of Enforcement. Judicial scrutiny under Article 226 would also not be of any help when the petitioner has no access to the nature, manner and extent of investigation by the Directorate. We cannot overlook .....

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