TMI Blog2021 (5) TMI 530X X X X Extracts X X X X X X X X Extracts X X X X ..... ve to be given effect to despite being repugnant to Section 4(1) of the PC Act must be considered keeping in view other principles. The purpose and objective of including provisions to ensure that the Special Courts under the PMLA also have the jurisdiction to try scheduled offences is obvious when one examines the nature of the offence of money laundering. The said offence is described in Section 3 of the PMLA, which provides that whoever directly or indirectly attempts to indulge or knowingly assists or is otherwise party in any process or activity connected with proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming it as an untainted property, shall be guilty of committing an offence of money laundering. It is not necessary that persons accused of committing an offence of money laundering be also accused of committing the predicate scheduled offence. Nonetheless, the said accused cannot be convicted of committing an offence of money laundering unless the existence of a scheduled offence is established. In cases where the allegation of commission of an offence of money laundering against a person is founded on the allegatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es for offences under the Prevention of Corruption Act, 1988 (hereinafter the PC Act ), the impugned order transferring the case to such a court, which does not have the jurisdiction to decide it, is patently erroneous and is liable to be set aside. 3. The controversy in the present case arises in the following factual context. 4. Respondent No. 1 (hereafter CBI ) registered two FIRs against the Petitioner herein. The first bearing RC No. 217/2018/A/0003 dated 01.05.2018 under Sections 420/120B of the Indian Penal Code, 1860 (hereafter IPC ) and Section 13(2) read with Section 13(1)(d) of the PC Act. The second bearing RC No. 217/2018/A/0004 dated 05.05.2018 registered under Sections 348/120 of the IPC and Section 8 of the PC Act. On the basis of these FIRs, Respondent No. 2 (hereinafter the ED ) registered a common Enforcement Case Information Report bearing no. 03/HIU/2018 dated 09.05.2018. 5. On 31.07.2018, CBI filed the Final Report under Section 173 of the Criminal Procedure Code, 1973 (hereafter Cr.PC ), in respect of RC No. 217/2018/A/0003. Subsequently, proceedings under Sections 13(2) and 13(1)(d) of the PC Act against the Petitioner were dropped for want of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the PC Act. In this regard, he relies on the decision of the Supreme Court in P. Nallamal and Ors. v. State Represented by Inspector of Police: (1999) 6 SCC 559 , wherein the Court held that Section 4 of the PC Act confers exclusive jurisdiction to the Special Judges appointed under Section 3 of the PC Act and that the term only used in Sub-Section (1) of Section 4 of the PC Act confers exclusivity in terms of jurisdiction upon the Judges so appointed. Next, he referred to the decision of the High Court of Kerala in Inspector of Police, CBI v. Assistant Director Ors.: Crl. M. C. No. 2178 of 2019, decided on 08.11.2019 . In its decision, the High Court held that if a case involving the PC Act is committed to a Special Court constituted under the PMLA, such court will have no jurisdiction to try the case so committed. 11. He also contended that Section 4 of the PC Act overrides Section 44 of the PMLA and that Section 71 of the PMLA has no application to the present case. It is his case that the non-obstante provision contained in Section 4(1) of the PC Act ousts the application of any other law. And thus, the Special Courts established under PMLA have no jurisdiction to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of the word only in Sub-Section (1) of Section 4 of the PC Act is that no other court would have jurisdiction to try offences as specified under Section 3(1) of the PC Act. In P. Nallamal and Ors. v. State Represented by Inspector of Police (supra), the Supreme Court had authoritatively held that a Special Judge as appointed under Section 3(1) of the PC Act would have exclusive jurisdiction to try offences under the PC Act. The relevant extract of the said decision is set out below:- 8. Before dealing with the contention advanced by the appellants we may point out that Section 4 of the P.C. Act confers exclusive jurisdiction to Special Judges appointed under the P.C. Act to try the offences specified in Section 3(1) of the P.C. Act .. 9. The placement of the monosyllable only in the sub- section is such that the very object of the subsection can be discerned as to emphasize the exclusivity of the jurisdiction of the Special Judges to try all offences enveloped in Section 3(1) .. 16. In view of the non-obstante provision in Sub-section (1) of Section 4 of the PC Act, it would override any other inconsistent provision under the Cr.PC or any other law in for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 19. Section 44 of the PMLA sets out the offences triable by Special Courts constituted under Section 43 of the PMLA. Sub-Section (1) of Section 44 of the PMLA also contains a non-obstante clause to overcome any repugnancy with the provisions of Cr.PC. Section 44 of the PMLA is set out below:- 44. Offences triable by Special Courts. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), (a) an offence punishable under section 4 and any scheduled offence connected to the offence under that section shall be triable by the Special Court constituted for the area in which the offence has been committed: Provided that the Special Court, trying a scheduled offence before the commencement of this Act, shall continue to try such scheduled offence; or (b) a Special Court may, upon a complaint made by an authority authorised in this behalf under this Act take cognizance of offence under section 3, without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect.- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. 21. A non-obstante clause is a commonly used known legislative device to give an overriding effect to certain provisions, to overcome any inconsistency with any other provision in the same act or any other enactment. (See: Union of India and Anr. v. G.M. Kokil And Ors.: 1984 Supp SCC 196). 22. In the case of Aswini Kumar Ghosh and Anr. v. Arabinda Bose and Anr.: AIR 1952 SC 369, a question arose as to the true construction of Section 2 of the Supreme Court Advocates (Practice in High Court) Act, 1951, which contained a non-obstante clause in the following form: Notwithstanding anything contained in the Indian bar Council, 1926, or in any other law regulating the conditions subject to which a person not entered in the roll of Advocates of a High Court may be permitted to practice in that High Court . The Calcutta High Court in considering Section 2 of the Act held that an Advocate of the Supreme Court was not entitled to act on the original side of that High Court. This conclusion was reached by limiting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ything contained in the Cr.PC or any other law for the time being in force . 24. This Court is unable to accept that the provisions of Section 44(1)(a) of the PMLA must be read in a restrictive manner to override the provisions of the Cr.PC in case of any repugnancy, but to yield to the extent it is inconsistent with any other law for the time being in force. This is so, because the non-obstante provision in the opening sentence of Sub-section (1) of Section 44 of the PMLA cannot control the meaning of the principal clause. The non-obstante clause under Section 44(1) of the PMLA cannot be construed to mean that the provisions of Section 44(1) of the PMLA do not override provisions of any other enactment. The scope of the non-obstante provision under Section 44(1) of the PMLA is limited to expressly provide that the provisions of Section 44(1) of the PMLA would override any provision that may be inconsistent with the provisions of the Cr.PC. Thus, in case of any conflict or repugnancy between the provisions of the Cr.PC and provisions of various clauses under Section 44(1) of the PMLA, the provisions of the PMLA would be given effect to and the repugnancy would be resolved in fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trying offences under Section 4 of the PMLA. 27. Sub-section (2) of Section 43 of the PMLA expressly provides that while trying an offence under the PMLA, a Special Court shall also try an offence, other than the offence of money laundering, with which the accused may, under the Cr.PC, be charged at the same trial. Section 220 of the Cr.PC provides for cases where multiple offences may be tried at one trial. Sub-Section (1) of Section 220 of the Cr.PC, inter-alia, provides that if series of acts are so connected together as to form the same transaction and more than one offence has been committed by the accused, he may be charged with and tried for each offence at one trial. In such cases, where the offence of money laundering and the predicate offence arise from the same transaction, the Special Court under the PMLA would have the jurisdiction to try the same. 28. Clause (a) of Section 44(1) of the PMLA expressly provides that the scheduled offence and an offence punishable under Section 4 of the PMLA shall be triable by the Special Court constituted for the area in which the offence has been committed. Section 2(y) of the PMLA defines the expression scheduled offences . Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dment, the said Clause read as under: an offence punishable under section 4 and any scheduled offence connected to the offence under that section shall be triable only by the Special Court constituted for the area in which the offence has been committed: Provided that the Special Court, trying a scheduled offence before the commencement of this Act, shall continue to try such scheduled offence; or [underlined for emphasis] The word only was deleted with effect from 15.02.2013. The said amendment is relevant as it indicates that the jurisdiction of the other courts to try the predicate offence is not excluded but the Special Court designated under the PMLA would also have the jurisdiction to try the predicate offence. In this view, Clause (a) of Section 44(1) of the PMLA, is only an enabling provision that enables the Special Court to try the scheduled offences in the given cases. 32. If one examines the language of Clause (c) of Sub-section (1) of Section 44 of the PMLA in light of the explanation to Sub-section (1) of Section 44 of the PMLA, it is apparent that it is not necessary that only trial of such predicate offences, which can be tried along with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether there is reference to the former law and the non obstante clause therein. The above tests are merely illustrative and by no means they should be considered as exhaustive. It is for the court when it is called upon to resolve such conflict by harmoniously interpreting the provisions of both the competing statutes and by giving effect to one over the other. 36. It is also relevant to refer to the decision of the Supreme Court in Jay Engineering Works Ltd. v. Industry Facilitation Council and Anr.: (2006) 8 SCC 677. The relevant observations made by the Court in this decision are as under: 28. Both the Acts contain non obstante clauses. Ordinary rule of construction is that where there are two non obstante clauses, the latter shall prevail. But it is equally well settled that ultimate conclusion thereupon would depend upon the limited context of the statute. (See Allahabad Bank, (2000) 4 SCC 406, para 34.) 29. In Maruti Udyog Ltd. v. Ram Lal, (2005) 2 SCC 638, it was observed: (SCC p. 653, para 39) 39. The interpretation of Section 25-J of the 1947 Act as propounded by Mr Das also cannot also be accepted inasmuch as in terms thereof only the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A describes the offence of money laundering and Section 4 of the PMLA provides for the punishment for the said offence. The said enactment contains extensive provisions regarding the authorities entitled to prosecute any offender for the offence of money laundering as well as provisions for confiscation of proceeds of crime. 40. The principle that a special act overrides a general act is not applicable in the present case. PC Act and PMLA are both special statutes in their own fields. Both relate to different offences and none of the two enactments can be considered as general or special in relation to the other. Thus, the question whether the provisions of Section 44(1)(a) and Section 44(1)(c) of the PMLA have to be given effect to despite being repugnant to Section 4(1) of the PC Act must be considered keeping in view other principles. 41. One of the well accepted principles for addressing repugnancy between two statutes is that the later enactment overrides an earlier enactment. This is also subject to examination of the purpose and objective of the enactments. 42. In Solidaire India Ltd. v. Fairgrowth Financial Services Ltd. (supra), the Supreme Court referred to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conflict if it is held that the 1992 Act is to prevail. On such an interpretation the objects of both would be fulfilled and there would be no conflict. It is clear that the Legislature intended that public monies should be recovered first even from sick companies. Provided the sick company was in a position to first pay back the public money, there would be no difficulty in reconstruction. The Board for Industrial and Financial Reconstruction whilst considering a scheme for reconstruction has to keep in mind the fact that it is to be paid off or directed by the Special Court. The Special Court can, if it is convinced, grant time or instalments. 43. In Maharashtra Tubes Ltd. v. State Industrial and Investment Corporation of India: (1993) 2 SCC 144, the Supreme Court considered the question regarding inconsistency between two special laws the Finance Corporation Act, 1951 and the Sick Industrial Companies (Special Provisions) Act, 1985. The Supreme Court noted that both the said Statutes contained non-obstante clauses but 1985 Act being a subsequent enactment, the non-obstante clause therein would ordinarily prevail over the non-obstante clause found in Section 46B of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u Urban District and Others: 2020 SCC OnLine SC 1023 , the Supreme Court was concerned with the question of inconsistency between the provisions of Maintenance and Welfare of Parents and Senior Citizens Act, 2007 and Protection of Women from Domestic Violence Act, 2005. The court referred to the earlier decision in Bank of India vs Ketan Parekh (supra) and held as under: Principles of statutory interpretation dictate that in the event of two special acts containing non obstante clauses, the later law shall typically prevail. In the present case, as we have seen, the Senior Citizen's Act 2007 contains a non obstante clause. However, in the event of a conflict between special acts, the dominant purpose of both statutes would have to be analyzed to ascertain which one should prevail over the other. The primary effort of the interpreter must be to harmonize, not excise. 47. The purpose and objective of including provisions to ensure that the Special Courts under the PMLA also have the jurisdiction to try scheduled offences is obvious when one examines the nature of the offence of money laundering. The said offence is described in Section 3 of the PMLA, which provides tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 50. It is apparent that the object of including Clauses (a) and (c) of Section 44(1) of the PMLA read with the explanation as introduced by the Finance (No. 2) Act, 2019 is to enable the same court to try both the offences of money laundering as well as the predicate scheduled offence. It is at once clear that if the said objective is to be served then the provisions of Section 44(1)(a) and 44(1)(c) of the PMLA would necessarily override the provisions of Section 4(1) of the PC Act. 51. The PC Act as is expressly indicated by Section 28 of the PC Act is enacted in addition to and not in derogation of any other law. The object of enacting the said law is to consolidate and amend the law relating to prevention of corruption and for matters connected therewith. The Parliament in its wisdom had considered it appropriate that cases under the said Act be tried by Special Judges, who are or have been a Sessions Judges or Additional Sessions Judges or Assistant Sessions Judges under the Cr.PC. Concededly, the Special Judges designated under the PMLA would also necessarily have to meet the said qualification. Thus, the Special Judges designated in terms of the PMLA are not, per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fences under the PC Act, which were triable by Special Courts appointed under the said Act. And, the said provision could not be used to seek committal of a case relating to a scheduled offence to the Special Court under PMLA, if the Special Court did not have jurisdiction to try the said case. 55. The court reasoned that Clause (a) of Sub-section (1) of Section 44 of the PMLA must be read in conjunction with Section 43(2) of the PMLA and was applicable only where the accused was required to be tried for an offence under money laundering as well as the predicate offence under the same trial. In such cases, it is possible that the scheduled offence may have been committed in a jurisdiction of one Special Court but the offence punishable under Section 4 of the PMLA may have been committed in the jurisdiction of another Special Court. The Court held that Clause (a) of Section 44(1) of the PMLA addressed such a situation and had expressly provided that the accused would be tried only by the Special Court constituted for the area in which the offence punishable under Section 4 of the PMLA had been committed. 56. This Court is, respectfully, unable to agree with the view taken in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . This Court concurs with the aforesaid view. The concerned authority under the PMLA, is not required to make an application in every case and the same can be made only where it is necessary in the interest of a speedy trial and is otherwise expedient to do so. 60. In view of the above, the contention that cases relating to scheduled offences punishable under the PC Act (as specified in Paragraph 8 of Part A of the Schedule to the PMLA) cannot be tried by the Special Courts designated under the PMLA, which are trying the interlinked offence punishable under Section 4 of the PMLA, for want of jurisdiction to do so, cannot be accepted. 61. There is no ambiguity in the language of Section 44(1)(c) of the PMLA. The concerned court, which is trying the scheduled offence, is required to transfer the same to the Special Court designated under the PMLA, on an application moved by the authority, authorised to make a complaint under the PMLA. This is provided that the said Special Court has taken cognizance of the offence punishable under the PMLA. 62. In the facts of the present case, it is not disputed that the other connected cases are being tried by the Special Court. By an orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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