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TMI Blog2013 (2) TMI 904X X X X Extracts X X X X X X X X Extracts X X X X ..... in collusion with Vinod Sinha [petitioner in W.P (Cr.) No.257 of 2012] and Sanjay Kumar Choudhary. Having acquired ill-gotten money in crores in connivance with aforesaid two persons they purchased/invested money in number of Companies not only in India but also at abroad including Dubai where crores of rupees were transferred through Hawala. That apart, money was also invested in crores in purchasing land and also in purchasing Mines in a foreign country, namely, Liberia. The said complaint was forwarded to the Officer-in-Charge, Vigilance Police Station, Ranchi under section 156(3) of the Code of Criminal Procedure for its institution and investigation. Accordingly, it was registered as Vigilance P.S. case no. 9 of 2009 under Sections 420, 423, 424,465 read with Section 120B of the Indian Penal Code and also under Sections 7, 10,11 and 13 of the Prevention of Corruption Act, 1988. Later on, the investigation was taken over by the C.B.I. While the C.B.I was proceeding with the investigation, the Enforcement Directorate on the basis of allegation made in the vigilance case lodged Enforcement Case Information Report ( ECIR) against the persons who had been made accused in the vigil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigated the case submitted charge sheet , upon which cognizance of the offence punishable under Section 109 of the Indian Penal Code and also under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act was taken against this petitioner. Meanwhile, the Enforcement Directorate also filed a case against the petitioner and one other person, namely, Hari Naraian Rai which was registered as ECIR case no. ECIR/01/PAT/09/AD on 4.9.2009 on the allegation that the petitioner while was holding the office of Minister, Rural Development Department, Government of Jharkhand, having amassed properties by corrupt means invested it in purchasing land worth Rs. 54.44 crores. Subsequently, upon allegation being found prima facie true, a complaint was lodged on 11.12.2009 for commission of offence under Section 3 of the PMLA Act punishable under Section 4 of the Act, upon which cognizance was taken under Section 3/ 4 of the PMLA Act. Thereafter an application was filed for discharging the petitioner from accusation which was rejected, vide order dated 5.8.2011 which is under challenge. The question which has come up for consideration is as to whether the prosecution for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the Prevention of Corruption Act. The answer to this can be found by applying well known mathematical tools of 'Reductio absurdum' method meaning thereby that whichever procedure under the scheme of the Act would appear as absurd that is to be discarded and only that procedure which would fulfill the aim and object of the Act is to be adopted. In this regard, it was further submitted that the trial of the offence under the Prevention of Money Laundering Act can never precede the trial of the schedule offences as the prosecution needs to establish that one is having committed scheduled offences has acquired the property through proceeds of crime and unless that is established, any trial which proceeds under the Prevention of Money Laundering Act would be pre- matured and that if it proceeds then the court will have to assume that the accused is guilty for the scheduled offences which would be against the spirit of the Act and therefore, that option never lies with the court. So far as the other option left with the court for proceeding with the trial under the scheduled offences as well as under the Prevention of Money Laundering Act simultaneously, there would be pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osition gets strengthen from the fact that offences under the Unlawful Activities (Prevention) Act have been incorporated as scheduled offence in the Prevention of Money Laundering Act but under the provision of the Unlawful Activities (Prevention) Act, it is to be tried by the court constituted under the Code of Criminal Procedure whereas the offence under the Prevention of Money Laundering Act is to be tried in the special court constituted under Section 43 read with Section 44 of the Prevention of Money Laundering Act. It was pointed out that Section 44 of the PMLA Act is a non obstante clause but it never refers to the provision of Unlawful Activities (Prevention) Act and therefore, in view of Section 48 of the Unlawful Activities (Prevention) Act, the provision under the Unlawful Activities (Prevention) Act will override the provision as contained in Section 44 of the Prevention of Money Laundering Act and that it would be significant to note that under the Unlawful Activities (Prevention) Act, forfeiture can take place even if a person concerned is convicted or not for any offence under the said Act whereas the provision as contained in Section 8(5) of the Prevention of Mone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to provide for confiscation of property derived from, or involved in money laundering, and to ensure curbing of the tendency of committing scheduled offences. Keeping in view the said object and reason for which said Act was legislated, it is to be considered as to whether object of the Act gets frustrated if the court proceeds with the trial of the offences under the Prevention of Money Laundering Act as well as with the trial of the scheduled offences. Simultaneously or that the trial of the scheduled offence is necessarily to precede the trial under PMLA Act. It be recalled that offence of money laundering has been defined in Section 3 of the Act which reads as follows: " Office of money-laundering - Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime and projecting it as untainted property shall be guilty of offence of money-laundering. Section 4 of the Act which prescribes the punishment of money laundering reads as under: "Punishment for money-laundering- Whoever commits the offence of money-laundering shall be punishable with rigorous i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... courts. The provisions of Sections 43 and 44 read as follows: 43. Special Courts. (1) The Central Government, in consultation with the Chief Justice of the High Court, shall, for trial of offence punishable under section 4 by notification designate one or more Courts of Sessions as Special Court or Special Courts for such area or areas or for such case or class or group of cases as may be specified in the notification. (2) While trying an offence under this Act, a Special Court shall also try an offence, other than an offence referred to in sub-section (1), with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial. 44. "Offices triable by Special Courts - (1) Notwithstanding anything contained in the Code of Criminal procedure, 1973 (2 of 1974),- (a) the scheduled offence and offence punishable under Section 4 shall be triable only by the Special Court constituted for the area in which the offence has been committed; (b) a Special Court may, upon a complaint made by an authority authorized in this behalf under this Act take cognizance of the offence for which the accused is committed to it for trial. (2) Nothing c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce on the part of the Special Court to try the offence of the Prevention of Corruption Act as the provision of the Prevention of Money Laundering Act in terms of the provision as contained in Section 71 will have overriding effect even if the provision of the Prevention of Money Laundering Act is inconsistent with any other law. The said provision as contained in Section 71 reads as follows: "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." Thus, even if Section 44 does not speak about Prevention of Corruption Act, it hardly matters so far it relates to power of the Special Court to try scheduled offences including the offence under the Prevention of Corruption Act and the offence punishable under Section 4 of the Money Laundering Act. Going further into the matter, it be recorded that the arguments have been advanced on behalf of the petitioner that so far as the procedure relating to investigation, enquiry and trial of the scheduled offences is concerned, it is quite distinct to the procedure relating to investigation/enquiry and trial of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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