TMI Blog2015 (10) TMI 2679X X X X Extracts X X X X X X X X Extracts X X X X ..... cial Courts for notified areas and places for trial of the offences punishable under section 4. The Central Government vide Notification dated 1-6-2006 issued under section 43(1) of the PMLA has designated the Courts of Sessions at Gwalior, Indore, Bhopal, Sagar and Jabalpur as Special Courts for trial of offences punishable under section 4 of the Act. Exercising the power under section 43 of PMLA, Central Government vide Notification dated 1-6-2006 has designated the Sessions Court at Gwalior, Indore, Bhopal, Sagar and Jabalpur as Special Court, therefore, the Additional Sessions Judge who in terms of section 9 of Criminal Procedure Code is covered within the meaning of Court of Session, is empowered to try the offences under section 4 of PMLA being the designated Court. The Central Government has not confined the designation of the Special Court to "Sessions Judge" only but it has notified Sessions Court as designated Court, therefore, the contention of the petitioner that the Additional Sessions Judge is not the designated Court, cannot be accepted. Issue of grant of bail - Held that:- In the present case nothing has been pointed out to show that the respondents have acted in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a result of which five cases were registered under section 120-B read with section 420 of Indian Penal Code against the petitioners being (1) RC BD1/2011/E/0005 at the instance of PNB; (2) RC BD1/2011/E/0009 by Syndicate Bank Mumbai; (3) RC BD1/2011/E/0010 at the instance of Canara Bank Mumbai; (4) RC BD1/2012/E/0007 at the instance of United Bank of India Mumbai and (5) RC BD1/2013/E/0001 by Union Bank of India Mumbai. In these cases, the investigation has been done by CBI and the charge sheets have been filed before the competent Court and petitioner No. 1 was enlarged on bail. The respondents thereafter based upon the above five FIRs registered by CBI have suo motu registered five cases i.e. (i) ECIR/INSZO/7/2013; (ii) ECIR/INSZO/8/2013; (iii) ECIR/INSZO/9/2013; (iv) ECIR/INSZO/10/2013; and (v) ECIR/INSZO/11/2013 under sections 3 and 4 of the Prevention of Money Laundering Act, 2002 at Indore Sub Zonal Office. 3. The petitioners have approached this Court with a prayer to quash the case registered and proceedings initiated against them under the PMLA and alternatively to restrain the respondents from subjecting the petitioner to coercive and custodial interrogation. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrest a person without warrant and under section 155 of Criminal Procedure Code the procedure has been prescribed for information as to non-cognizable cases and investigation of such cases and without following the said procedure the respondents cannot be allowed to proceed with the investigation. He further submits that even assuming the offence in question is a cognizable offence then also in terms of section 154 of Criminal Procedure Code the FIR is required to be registered and under section 157 the report is required to be sent to the Magistrate and under section 167 of Criminal Procedure Code case diary is required to be maintained and submitted before the Magistrate for taking remand and under section 172, Criminal Procedure Code the case diary is required to be maintained and under section 173 the report is to be submitted after completion of investigation. He has raised a submission that all these procedure has not been followed therefore, the investigation is not sustainable. 8. Learned counsel for respondents has opposed the writ petition and has submitted that on account of their conduct, the petitioners are not entitled for any relief since they are not co-operati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offence is one in which a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant. In terms of section 4 of PMLA offence of money laundering is punishable with rigorous imprisonment for a term not less than 3 years extending to 7 years and with fine. The Second Schedule to the Criminal Procedure Code relates to classification of offences under other laws and in terms of the Second Schedule of the Criminal Procedure Code an offence which is punishable with imprisonment for 3 years and upward but not more than 7 years, is a cognizable and non-bailable offence. Thus, section 4 of the PMLA read with Second Schedule of the Criminal Procedure Code, makes it clear that the offences under PMLA are cognizable offences. Section 45 of the PMLA also provides that offences under the PMLA are cognizable and non-bailable. So far as the second proviso to sub-section (1) of section 45 of PMLA is concerned, that relates to the taking cognizance of offence by the Special Court and from that it alone cannot be inferred that the offence is not cognizable. 13. Learned counsel for the petitioner has placed reliance upon th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e followed while investigating the offence under the PMLA? 16. Section 71 of PMLA gives overriding effect to the Act and provides as under:-- 71. Act to have overriding effect.--The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. 17. Section 65 of the PMLA relates to applicability of the Criminal Procedure Code and provides as under:-- 65. Code of Criminal Procedure, 1973 to apply.--The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply, insofar as they are not inconsistent with the provisions of this Act, to arrest, search and seizure, attachment, confiscation, investigation, prosecution and all other proceedings under this Act. 18. Since PMLA is a special Act and the provisions of this Act have been given overriding effect, therefore, they will prevail in case if there is any inconsistency with the general Act. In terms of section 65 of PMLA, the provisions of PMLA relating to arrest, search and seizure, attachment, confiscation, investigation, prosecution and all other proceedings under PMLA have the overriding effect and the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there is no procedure prescribed in PMLA for investigation of the offence, I am of the opinion that the procedure which has been prescribed under the Criminal Procedure Code is required to be followed while investigating the offence under PMLA. 21. So far as the present case is concerned, in the case of Vijay Madanlal Choudhary in W.P. Nos. 4336/15, 4341/15, 4344/15, 4347/15, 4350/15, 5089/15 and 5091/15, the matter is at the investigation stage, therefore, the investigating authorities are directed to carry out the investigation in accordance with the provisions contained in the Criminal Procedure Code. 22. So far as the W.P. No. 5625/2015 of Sharad Tikamdas Kabra is concerned, the Challan has already been filed before the Special Court, therefore, it would be open to the petitioner to raise an objection in respect of defect in investigation under section 173(8) of the Criminal Procedure Code before the Special Judge and if the Special Judge reaches to the conclusion that the investigation has not been done in accordance with the procedure prescribed in the Criminal Procedure Code, then it would be open to him to pass the appropriate orders in this regard. 23. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authority, in a sealed envelope, in the matter, as may be prescribed and such Adjudicating Authority shall keep such order and material for such period, as may be prescribed. (3) Every person arrested under sub-section (1) shall within twenty-four hours, be taken to a Judicial Magistrate or a Metropolitan Magistrate, as the case may be, having jurisdiction: Provided that the period of twenty-four hours shall exclude the time necessary for the journey from the place of arrest to the Magistrate's Court. 26. Under sub-section (1) of section 19 the specified officers on the basis of the material in possession, having reason to believe which is to be recorded in writing that the person has been guilty of offence under the Act, has power to arrest such person and he is required to inform the grounds for such arrest at the earliest and in terms of sub-section (3) of section 19, the arrested person is required to be produced to the jurisdictional judicial Magistrate or metropolitan Magistrate within 24 hours excluding the journey time from the place of arrest to the Magistrate's Court. Exercising the rule making power under section 73, Central Government has f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application for bail, hence no ground is made out for issuing the writ of Habeas Corpus. 30. For the reasons mentioned above, I am of the opinion that no case is made out for quashing the offence which has been registered against the petitioner under PMLA and so far as the issue of investigation is concerned, the parties are required to take appropriate steps in terms of Paragraphs 22 and 23 of the judgment. 31. So far as the W.P. No. 5625/2015 of Sharad Tikamdas Kabra is concerned in which the prayer for habeas corpus has been made but since the arrest of the petitioner is in accordance with the provisions of PMLA and the Special Court (which has found to be competent) has already rejected the application for bail, therefore, it cannot be held that the writ petitioner in W.P. No. 5625/2015 is in illegal custody, especially when this Court has held that Special Court includes the Court of Additional Sessions Judge. Hence, the writ of habeas corpus cannot be issued in the matter. 32. The writ petitions are accordingly disposed off. Signed order be kept in the file of W.P. No. 4336/2015 and a copy whereof be placed in the file of connected W.P. Nos. 4341/15, 4344/15, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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