TMI Blog2020 (1) TMI 1076X X X X Extracts X X X X X X X X Extracts X X X X ..... cognizance has been passed - This court finds that in exercise of revisional power, High Court should not interfere only because it forms a different opinion on the same material. The High Court, unless finds that the order impugned is perverse on face of it and the court below did not exercise its jurisdiction or there is an illegality or irregularity on the face of order impugned, should not interfere with the order passed by the court below while exercising powers under Sections 397 and 401 Cr.P.C. The satisfaction of the court taking cognizance, if based on the material placed before it, discloses that cognizance of an offence is required to be taken, the said order will not be termed as a perverse order. This court finds that the Legislature has enacted the PMLA, 2002 with object to prevent money-laundering and connected activities, as it posed a serious threat not only to the financial systems but also to the integrity and sovereignty of the Country - This court finds that if offence of money laundering, as defined in Section 3 of the PMLA, 2002, is to be alleged against the accused persons, the Investigating Agency is required to look into the basic ingredients for commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Special Sessions Court, Jaipur (Prevention of Money Laundering Act, 2002) Special Court (Communal Riots Cases), Jaipur Metropolitan, Jaipur, whereby cognizance has been taken for offence punishable under Sections 3 4 of the Prevention of Money Laundering Act, 2002 (hereinafter shall be referred as PMLA, 2002 ) arrest warrants have been issued to secure the presence of the accused persons. 2. The other set of cases are Criminal Miscellaneous Petitions filed under Section 482 Cr.P.C. challenging order of the Trial Court wherein it has refused to convert arrest warrants of the petitioners into bailable warrants by not exercising power under Section 70(2) Cr.P.C. (Revision Petitions) 3. This Court has taken note of the facts from the file of S.B. Criminal Revision Petition No. 273/2019 (Shyam Sundar Singhvi Vs. Union of India), which is treated as the lead case. The facts, in nutshell, are that Anti Corruption Bureau, Jaipur on 19.09.2015 registered an FIR bearing No.251/2015 under Sections 120-B 409 IPC and under Sections 7, 8, 9, 10, 12, 13(1)(a)(c)(d), 13(2) 14 of Prevention of Corruption Act against Sanjay Sethi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibe amount was fixed to the tune of ₹ 2.50 Crores and it was alleged that Sanjay Sethi had informed Dr. Ashok Singhvi that deal was finalized at ₹ 1.25 Crores and out of which ₹ 1 Crore was for Dr. Ashok Singhvi and ₹ 25 Lakhs was for others and Dr. Ashok Singhvi had given his consent for the said deal. It was further found by the ACB that ₹ 2.60 crores was withdrawn from different bank accounts and Mohd. Rashid Sheikh was to handover the amount of ₹ 2.55 crores and in pursuance thereof ₹ 2.55 crores were handed over by Shyam Sunder Singhvi to Sanjay Sethi and his associate Dheerendra Singh @ Chintu on 16.09.2015. The ACB team visited the office of Shyam Sunder Singhvi and seized the amount of ₹ 2.50 crores from Sanjay Sethi and Dheerendra Singh and ₹ 5 lakhs was kept with Shyam Sunder Singhvi, as commission, paid to Shyam Sunder in the deal. 8. The Directorate of Enforcement, after the charge-sheet being filed by the ACB, registered an Enforcement Case Information Report (ECIR) on 30.10.2015 against eight accused persons i.e. Sanjay Sethi, Dr. Ashok Singhvi, Pankaj Gehlot, Pushkar Raj Ameta, Shyam Sunder Singhv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e criminal complaint filed by the Enforcement Directorate. 13.2 The offence of money laundering, as defined under Section 3 penalized under Section 4 of PMLA, 2002, requires that proceeds of crime are concealed or possessed or acquired or used for the purpose of projecting or claiming it to be untainted property. The proceeds of crime is a property which is derived directly or indirectly by a person as a result of criminal activity relating to a scheduled offence. Counsel argued that the entire case of the Enforcement Directorate is founded on the version given out by the ACB in their charge-sheet for the scheduled offence and the chargesheet submitted by the ACB does not make out a case under Section 3 of the PMLA, 2002. The facts of the case did not reflect that even the illegal gratification was accepted or obtained by any of the public servants, much less after obtaining the same, they had projected or claimed the same to be untainted property. 13.3 The basic requirement of committing offence under Section 3 of PMLA, 2002 was not fulfilled as there has to be placement, layering and integration of proceeds of crime. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the provisions of PMLA, 2002. 16.3 There has been no allegation of any kind of activity undertaken by the petitioner Tamanna Begum, which can become an offence either under the PMLA, 2002 or the Prevention of Corruption Act. Counsel placed reliance on the judgment passed by the Karnataka High Court dated 13.03.2017 in the case of Obulapuram Mining Co.Pvt.Ltd. Ors. Vs. Jt.Director, Directorate of Enforcement Ors. [Writ Petition Nos.5962, 11442 11440-11441 of 2016] ; judgment passed by the Jharkhand High Court dated 19.02.2013 in the case of Binod Kumar Sinha @ Binod Kumar Vs. State of Jharkhand [Writ Petition (Crl.) No.257/2012 with Crl.Rev.No.920/2012 Crl.Rev.No.699/2011] ; judgment passed by the coordinate Bench of this Court dated 23.04.2019 passed in the case of Kanhaiyalal Anr. Vs. State of Rajasthan Anr. [S.B.Crl.Misc.Petition No.2381/2019] . 17. Mr.Peush Nag Mr.Suresh Kumar Sahni, learned counsel appearing for the other accused petitioners have also reiterated the same submissions. 18. Per contra, Mr.R.D. Rastogi, learned Additional Solicitor General, has submitted that this case has a chequered history ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eking anticipatory bail and as such these petitioners want the relief from this Court which has been denied to them by the Trial Court. 22. Mr.Rastogi has raised following submissions before this court:- 22.1 Power under Sections 397 and 401 Cr.P.C. can be exercised only in exceptional cases and the court is primarily to see the contents of the complaint alone and no other material is to be considered. 22.2 The remedy available under Section 482 Cr.P.C. is not like an appeal and the High Court should not act as an investigating agency in order to exercise powers like an appellate court. 22.3 The conduct of the accused persons is highly objectionable and they do not deserve any relief from this Court. 22.4 The economic offences stand on a different footing and such offences constitute a separate class and they need to be visited with a different approach. 22.5 A person can be prosecuted for an offence of money laundering even if he is not guilty of the scheduled offences and the prosecution can be launched only for the offence of money laundering. 22.6 The Special C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re only because it forms a different opinion on the same material. The High Court, unless finds that the order impugned is perverse on face of it and the court below did not exercise its jurisdiction or there is an illegality or irregularity on the face of order impugned, should not interfere with the order passed by the court below while exercising powers under Sections 397 and 401 Cr.P.C. The satisfaction of the court taking cognizance, if based on the material placed before it, discloses that cognizance of an offence is required to be taken, the said order will not be termed as a perverse order. 29. This court finds that initially ACB had registered FIR and later on filed charge-sheet against the accused persons for the offences of Prevention of Corruption Act. The Directorate of Enforcement thereafter registered an Enforcement Case Information Report (ECIR) against the accused persons on the allegations of money laundering under Sections 3 and 4 of the PMLA, 2002 involving proceeds of crime and on the basis of this said allegations, the Assistant Director, Directorate of Enforcement later on filed prosecution complaint under Section 45(1) of the PMLA, 2002. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into money laundering. 33. The submission of learned counsel for the petitioners that in absence of basic requirement of Section 3 of the PMLA, 2002 like placement, layering and integration of proceeds of crime, no offence is made out, this court finds that the words placement, layering and integration of proceeds of crime are in fact interpretation in a judgment passed by the Delhi High Court in the case of M/s.Mahanivesh Oils Foods Pvt. Ltd. Vs. Directorate of Enforcement reported in 2016 (1) High Court Cases (Del) 265 . The said judgment passed by the Delhi High Court and observation made therein has been stayed by the Division Bench in LPA No.144/2016 [Directorate of Enforcement Vs. M/s. Mahanivesh Oils Foods Pvt. Ltd.] vide order dated 30.11.2016 while observing as follows:- We have observed that while allowing the writ petition by the order under appeal, certain findings were recorded by the learned Single Judge with regard to the enforcement of the Prevention of Money Laundering Act, 2002 on interpretation of the provisions of the said Act. We make it clear that the findings so recorded by the learned Single Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inition of offence of money laundering as per Section 3 of the PMLA, 2002, no offence, against the accused petitioners, is made out as the proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming as tainted property, was not prima facie proved against the accused petitioners. Counsel submitted that the subsequent explanation added by way of amendment has defined the activities like concealment or possession or acquisition or use or claiming or projecting as untainted property, by considering any of such activity to be committing, an offence. Counsel has argued that prior to addition of explanation, all the ingredients, defining money laundering, were required to be alleged for charging a person for commission of offence under Section 3 of the PMLA, 2002 and only by virtue of explanation, specifying any of the activities, offence can be committed by a person. 38. Counsel has placed reliance on the judgment passed by the Apex Court in the case of Popular Muthiah Vs. State represented by Inspector of Police reported in JT 2006 (6) SC 332 and Nikesh Tarachand Shah Vs. UOI Ors. reported in 2017 (13) Scale 6098 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indirectly enjoying the proceeds of crime by its concealment or possession or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner whatsoever. 41. This court finds that reading of Section 3 of the PMLA, 2002 reveals that the offence of money laundering is an offence regarding indulging in any process or activity connected with proceeds of crime including its concealment, possession, acquisition or use and further projecting and claiming the same to be untainted property. The said definition given in Section 3 of the PMLA, 2002 was later on clarified by adding explanation and as such it does not change the basic ingredients which were required to be alleged against a person for committing an offence under Section 3 of the PMLA, 2002. The clarification which has been added in fact was for removal of doubts, may be due to somewhat ambiguous definition inserted in the main provision of Section 3 of the PMLA, 2002. Thus, the Legislature if by way of amendment adds explanation for removal of doubts, it cannot be said that a punitive provision has been inserted in the definition and the same has to be given effect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed by the Division Bench of the Gujarat High Court in Rakesh Manekchand Kothari Vs. UOI [Special Criminal Application (Direction) No.4496/2014] dated 16.01.2015 and on the strength of the said judgment submitted that PMLA, 2002 applies to the person who is connected with the criminal activity relating to the scheduled offences but may not be an offender of the scheduled offences. 46. This court finds that the court below after considering the law on the subject has come to the conclusion that the petitioner Tamanna Begum is also involved in commission of offence under Section 3 of the PMLA, 2002 and as such this court does not find any reason to take a different view on the issue of involvement of the petitioner Tamanna Begum in the present case. 47. This court finds that position of law which emerges is that offence of money laundering under Section 3 of the PMLA, 2002 is an independent offence and money laundering is a stand alone offence under the PMLA, 2002. 48. Accordingly, this court finds that the order passed by the court below of taking cognizance dated 21.01.2019 does not require any interference by this court and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent Directorate, after they were called for recording the statement and at no point of time the Investigating Agency, sought to arrest the petitioners and in view of full cooperation extended by the petitioners, their appearance in the court by way of non-bailable warrants, after arresting them was not justified in the facts of the case. 52. Counsel for the petitioners have argued that statement of the petitioners were recorded under Section 50 of the PMLA, 2002 and whatever information/document was required by the prosecuting Agency, the same exercise having been undertaken, there remains no reason to summon the petitioners by way of non-bailable warrants. 53. Counsel for the petitioners have argued that the Apex Court time and again has laid down the law that resort to non-bailable warrant, at the first instance without availing other methods to secure/summon the accused by way of summon and bailable warrant, should not be adopted by the courts. Counsel argued that the law laid down by the Apex Court in the case of Inder Mohan Goswami Vs. State of Uttranchal reported in (2007) 12 SCC 1 still holds the field and the accused petitioners ought n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 482 Cr.P.C. even if there is a wrong exercise of jurisdiction by the trial court. Counsel has further argued that the prayer for converting non-bailable warrants into bailable warrants is like granting anticipatory bail and placing reliance on the case of Inder Mohan Goswami (supra) by the petitioners is totally misplaced. Counsel further argued that after rejection of their applications, filed under section 70(2) Cr.P.C. the accused persons may have different remedy like seeking regular bail before the trial court and granting relief of bail under section 482 Cr.P.C., is not warranted. 57. This court deems it proper to refer the relevant paragraphs of the judgment rendered by the Apex Court in Inder Mohan Goswami Vs. State of Uttranchal reported in (2007) 12 SCC 1 , which are as follows :- 6. According to the appellants, time was the essence of the contract and respondent no.3 had failed to pay the balance amount by ₹ 10,10,650/-. The Sabha had sent a legal notice dated 3.4.1999 (first legal notice) to respondent no.3 to fulfill his contractual obligations under the sale agreement and informing that if he failed to do so, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent no.4) as per the request of respondent no.3. 12. Having committed breach of his contractual obligations, respondent no.3 filed a criminal complaint to the SHO of Raiwala, Rishikesh police station on 23.4.2003 against the appellants and three other persons alleging that he had been cheated by the appellants in connivance with other persons by selling a portion of his land to a third party and by cancelling the General Power of Attorney. After examining the matter, the SHO arrived at the conclusion that no cognizable offence had been committed and the dispute in question was of civil nature for which the civil remedy is available in law. 13. Respondent no.3 filed another complaint on the same day, i.e. 23.4.2003, to the Senior Superintendent of Police, Dehradun and got the FIR registered against the appellant and three other persons. The allegation of respondent no.3 was that the appellants in connivance with other persons had sold the part of land situated in Old Khasra No.140 and new Khasra No.89 which had been transferred to them by way of General Power of Attorney. The FIR was registered on 23.4.2003 as Case No.26 of 2003 under sections ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, initiating criminal proceedings by the respondents against the appellants is clearly an abuse of the process of the court. 46. The court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurize the accused. On analysis of the aforementioned cases, we are of the opinion that it is neither possible nor desirable to lay down an inflexible rule that would govern the exercise of inherent jurisdiction. Inherent jurisdiction of the High Courts under Section 482 Cr.P.C. though wide has to be exercised sparingly, carefully and with caution and only when it is justified by the tests specifically laid down in the Statute itself and in the aforementioned cases. In view of the settled legal position, the impugned judgment cannot be sustained. 47. Before parting with this appeal, we would like to discuss an issue which is of great public importance, i.e., how and when warrants should be issued by the Court? It has come to our notice that in many cases that bailable and nonbailable warrants are issued casually and mechanically. In the instant case, the court witho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f facts and complete application of mind, due to the extremely serious consequences and ramifications which ensue on issuance of warrants. The court must very carefully examine whether the Criminal Complaint or FIR has not been filed with an oblique motive. 55. In complaint cases, at the first instance, the court should direct serving of the summons along with the copy of the complaint. If the accused seem to be avoiding the summons, the court, in the second instance should issue bailablewarrant. In the third instance, when the court is fully satisfied that the accused is avoiding the court s proceeding intentionally, the process of issuance of the non-bailable warrant should be resorted to. Personal liberty is paramount, therefore, we caution courts at the first and second instance to refrain from issuing non-bailable warrants. 56. The power being discretionary must be exercised judiciously with extreme care and caution. The court should properly balance both personal liberty and societal interest before issuing warrants. There cannot be any straight-jacket formula for issuance of warrants but as a general rule, unless an accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Y.S.Jagan Mohan Reddy Vs. CBI reported in (2013) 7 SSC 439 has considered the nature of economic offences and the relevant portion of the judgment is quoted hereunder:- 34. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. 35. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. 60. The Apex Court in the case of State of Gujarat Vs. Mohanlal Jitamalji Porwal a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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