TMI Blog2013 (2) TMI 904X X X X Extracts X X X X X X X X Extracts X X X X ..... must have been derived or obtained, directly or indirectly by any person as a result of criminal activity relating to scheduled offence in terms of sub-section (u) of Section 2 of the PMLA, there has been no doubt that unless one is held guilty for the scheduled offences, he cannot be held guilty of the offence punishable under Section 4 of the PMLA but hardly there appears to any embargo for the special court to proceed with the trial of the scheduled offences as well as offence under Section 4 of the PMLA simultaneously particularly when there has been nothing in the Act nor intention of the legislator seem to be there of taking of the trial of the offence punishable under Section 4 after one is found guilty for the scheduled offence. - W.P.(Cr.) No.257 of 2012 With Cr.Rev.No.920 of 2012 with Cr.Rev.No. 699 of 2011 - - - Dated:- 19-2-2013 - Mr. R.R.Prasad, JJ. For the Petitioner: M/s Shekhar Naphade, Sr.Advocate,Anshuman Sinha, Vinay Prakash and Awanish Shankar, For the E.D.: Mr. A.K.Das, ORDER All the three applications were heard together and are being disposed of by this common order as the issue involved in all these cases is the same. Before comi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an application was filed for staying the further proceeding until and unless it is established by the prosecution that the petitioner having committed scheduled offences has acquired properties through proceeds of the said crime but the prayer was rejected, vide order dated 11.6.2012 which is under challenge. Similarly, in the said Enforcement Case Information Report No.ECIR/02/PAT/09/AD when complaint was filed under Section 45 of the PMLA Act against Kamlesh Kumar Singh, petitioner in Cr.Rev.No.920 of 2012 cognizance of the offence was taken. Subsequently, an application for discharge was filed taking a plea that unless the petitioner is found to have committed scheduled offence, he cannot be prosecuted for an offence under Section 3 of the Act and that it has still not been established by the prosecution that the petitioner by committing scheduled offence has acquired properties by corrupt or illegal means and has invested it in purchasing moveable and immovable properties. That application was rejected vide order dated 25.9.2012 which is under challenge. The facts which has given rise to Cr.Rev.No.699 of 2011 are that a complaint was filed by one Kumar Vinod, upon which V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 4 of the Act. 'Proceeds of crime' as per definition given in sub-section (u) of Section 2 means any property derived or obtained directly or indirectly, by a person as a result of criminal activity relating to a scheduled offence, whereas scheduled offences in terms of sub-section (x) of Section 2 are the offences specified either under Part (A), Part (B) or Part (C) of the schedule of the Act. Thus, it was submitted that offence under Section 3 of the Money Laundering Act is dependent upon the offences under the Indian Penal code or the Prevention of Corruption Act. In other words, if the offences either under the Prevention of Corruption Act or under the Indian Penal Code which have been declared as scheduled offences are not established, one cannot determine the proceeds of crime and therefore, unless proceeds of crime is established by putting the accused on trial, any prosecution of the person under the Money Laundering Act would be pre-matured and would be an exercise in futility as one cannot be convicted for the offence under the Money Laundering Act without there being any conviction of the person for the scheduled offences. Learned counsel by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, report is submitted either under Section 169 or under Section 173 of the Code of Criminal Procedure, upon which cognizance of the offence is taken. But in a case of Prevention of Money Laundering Act, the prosecution needs to file a complaint under Section 44 read with Section 45 of the Act and it is only the special court which is constituted by the Government can take cognizance of the offence under the Prevention of Money Laundering Act. That too when Director of Enforcement or any other officer specially empowered by the Government accord sanction for prosecution whereas trial of the offence under the Prevention of Corruption Act can only be taken by the special judge appointed under Section 3 of the Prevention of Corruption Act and in the event, when sanction is accorded under Section 19 of the Act which means that the sanctioning authority for according sanction for prosecution under the Prevention of Corruption Act is different than the authority who accords sanction for prosecution under the Prevention of Money Laundering Act and that the special court for prosecuting a person under the Prevention of Corruption Act holds a trial in accordance with the procedure of the tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted above, can come to the conclusion that trial of the scheduled offences is to be gone into first. The aforesaid arguments advanced on behalf of the petitioner Binod Kumar Sinha have been adopted in its entirity by the counsel appearing for the petitioner of the criminal revisions applications. As against this, Mr.A.K.Das, learned counsel appearing for the Enforcement Directorate submitted that Prevention of Money Laundering Act was enacted to discharge the international obligation for preventing Money Laundering, setting of agencies and mechanism for coordinating measures for combating money laundering and thereby the provisions have been laid down to deal with attachment, adjudication and confiscation as well as to deal with the offences of money laundering by the court to be appointed as special court for holding trials of the offences under Section 3 of the Prevention of Money Laundering Act as well as the trial under the scheduled offences as stipulated under Section 44(1)(a) of the Act and that in view of he provision as contained in Section 71 of the Act, provision of the Prevention of Money Laundering Act will have over riding effect over any other law even if it is in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f crime means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property. If all these provisions are read together one would come to conclusion that if any person gets involved in any manner connected with the proceeds of crime obtained by committing scheduled offence he is liable to be punished under Section 4 of the Act. Chapter III pertains to attachment, adjudication and confiscation. Section 5 of the Act does stipulates that Director, or any other officer mentioned therein has reason to believe that any person charged or having committed schedule offence is in possession of any proceeds of crime which is likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceedings relating to confiscation, he may attach such property provisionally. Thereafter Section 8 deals with the matter relating to adjudication whereby adjudicating authority after giving due opportunity to concerned person comes to conclusion that any person has committed an offence under the Act or is in possession of proceeds of crime, he shall by an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... At the same time, Section 44 does prescribe that scheduled offence and the offence punishable under Section 4 of the Act shall be triable only by the Special Courts. The provision therein shall have overriding effect on the provision of the Code of Criminal Procedure. An argument has been advanced that the provision of Section 44 may have overriding effect over the provision of the Code of Criminal Procedure but since the provision does not mention about the Prevention of Corruption Act, it will not having any overriding effect of the provision of the Prevention of Corruption Act and thereby the Special Court designated under section 43 will not be competent to try the offences under the Prevention of Corruption Act as the trial of the Prevention of Corruption Act can be conducted only by a Special Judge appointed under Section 3 of the Prevention of Corruption Act. It is true that Section 44 which is non-obstante clause refers to only Code of Civil Procedure and not the provision of the Prevention of Corruption Act. But sub-section (a) of Section 44 does prescribes that scheduled offences as well as offence punishable under section 4 of the Act is triable by the Special Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e question would have been there for clubbing of the charges. Here, the point is never related to clubbing of the charges, rather the point is whether the Special Court can proceed simultaneously with the trial of the scheduled offence as well as trial of the offence punishable under Section 4 of the Prevention of Money Laundering Act. Keeping in view the provision as is enshrined in Section 3 postulating therein that whoever is connected with the proceeds of the crime projecting it as untainted property would be committing offence of Money Laundering Act and further that the proceeds of crime must have been derived or obtained, directly or indirectly by any person as a result of criminal activity relating to scheduled offence in terms of sub-section (u) of Section 2 of the Prevention of Money Laundering Act, there has been no doubt that unless one is held guilty for the scheduled offences, he cannot be held guilty of the offence punishable under Section 4 of the Prevention of Money Laundering Act but hardly there appears to any embargo for the special court to proceed with the trial of the scheduled offences as well as offence under Section 4 of the Prevention of Money Launderi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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