TMI Blog2022 (2) TMI 620X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst any accused person involved in respect of offence, for which, the complaint has already been filed, whether he is named in the original complaint or not - So as to examine the authenticity or legality of the impugned Supplementary Prosecution Complaint in the instant case, this Court has to examine as to whether the Supplementary Prosecution Complaint has been filed on the basis of any 'further evidence' . On the basis of material available on record, the prosecution has not considered any 'further evidence' , rather the statements of various persons, which have been recorded under Section 50 of the Act, 2002 prior to the date when the first complaint was filed on 30.06.2018, have been considered. The question as to whether the allegation of abuse of official position by not taking proper care and precaution in verifying the entries and bills would be treated as an offence under the Act, 2002, may be considered after exchange of affidavits - the impugned Supplementary Prosecution Complaint against the petitioner alleges the same allegation as has been levelled by the C.B.I. At running page 133 of the petition, the conclusion of investigation by the ED ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution Complaint dated 29.06.2020 and the cognizance order dated 11.08.2021 so as to secure the ends of justice. Learned counsel for the petitioner has contended that the present case is a glaring example of misuse of the process of law inasmuch as the learned Special Judge by taking cognizance against the petitioner on the supplementary prosecution complaint dated 29.06.2020 (E.D.) for allegedly committing an offence under Section 3 punishable under Section 4 of Prevention of Money Laudering Act, 2002 (here-in-after referred to as the Act, 2002 ) without taking into account the fact that that petitioner is being falsely prosecuted in this case. Therefore, he is humbly praying for the extraordinary jurisdiction of this Court under Section 482 Cr.P.C. Sri Pranjal Krishan, learned counsel for the petitioner has drawn attention of this Court toward running page 58 of the petition, which is portion of the charge-sheet filed by the C.B.I. on 13.10.2013, whereby the alleged culpability of the present petitioner has been indicated. Sri Pranjal Krishna has read over the relevant portion relating to the present petition in the C.B.I. charge-sheet and thereafter drawn attention of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by Chapter XXIX or Chapter XXX of the Code of Criminal Procedure, 1973 (2 of 1974), on a High Court, as if a Special Court within the local limits of the jurisdiction of the High Court were a Court of Session trying cases within the local limits of the jurisdiction of the High Court. 4. Sri Pranjal Krishna has contended that under Section 47 of the Act, 2002, the High Court has got the discretionary power of appeal and revision. The term 'may' has been used to mean they are in addition and in supplement to Section65 of the Act, 2002 which talks about the applicability of the Provisions of Cr.P.C. to cases brought under the Act, 2002 which very well include the provisions of Section 482 Cr.P.C. Besides, by means of this petition, the petitioner has not only assailed the cognizance order dated 11.08.2021 but has prayed for quashing the Supplementary Prosecution Complaint dated 29.06.2020. Under the revisional jurisdiction the cognizance order can be assailed but the Supplementary Prosecution Complaint may not be assailed as it would be beyond the scope of revision. However, under the inherent jurisdiction of this Court under Section 482 Cr.P.C. both the cognizance or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... graph 10 which runs as follows: 10. The first question is as to whether the inherent power of the High Court under Section 482 stands repelled when the revisional power under Section 397 overlaps. The opening words of Section 482 contradict this contention because nothing of the Code, not even Section 397 , can affect the amplitude of the inherent power preserved in so many terms by the language of Section 482 . Even so, a general principle pervades this branch of law when a specific provision is made: easy resort to inherent power is not right except under compelling circumstances. Not that there is absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same Code. In Madhu Limaye v. The State of Maharashtra this Court has exhaustively and, if I may say so with great respect, correctly discussed and delineated the law beyond mistake. While it is true that Section 482 is pervasive it should not subvert legal interdicts written into the same Code, such, for instance, in Section 397 (2). Apparent conflict may arise in some situations between the two provisions and a happy solution 'would be to say that the bar provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed by an aggrieved party is immaterial. The High Court can examine the matter in an appropriate case under its inherent powers. The present case undoubtedly falls for exercise of the power of the High Court in accordance with Section 482 of the 1973 Code, even assuming, although not accepting, that invoking the revisional power of the High Court is impermissible.' I am, therefore clear in my mind that the inherent power is not rebuffed in the case situation before us. Counsel on both sides, sensitively responding to our allergy for legalistics, rightly agreed that the fanatical insistence on the formal filing of a copy of the order under cessation need not take up this court s time. Our conclusion concurs with the concession of counsel on both sides that merely because a copy of the order has not been produced, despite its presence in the records in the court, it is not possible for me to hold that the entire revisory power stands frustrated and the inherent power stultified. 6. In our considered view any attempt to explain the law further as regards the issue relating to inherent power of High Court under Section 482 Cr.P.C. is unwarranted. We would simply reite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n six months. 7. In view of the aforesaid decisions of Hon'ble Apex Court, Sri Pranjal Krishna has submitted that the present petition filed under Section 482 Cr.P.C. is maintainable. 8. Per contra, Sri Shiv P. Shukla, learned counsel for the opposite parties has cited the decision of Orissa High Court dated 16.12.2013 in re: Smt. Janata Jha and another vs. Assistant Director, Directorate of Enforcement, Government of India and another (CRLMC No.114 of 2011 (Application U/S 482 Cr.P.C.)) by submitting that one petition was filed before the High Court under Section 482 Cr.P.C. under the same Act i.e. Act, 2002 stand dismissed by the Orissa High Court observing that it may be made clear that the question as to whether the inherent power available under Section 482 Cr.P.C. can be exercised for quashing a proceeding initiated under PMLA or not, is left open. 9. After considering the arguments of the parties on the point of maintainability, I find that the Orissa High Court in re: Smt. Janata Jha and another (supra) has not held that the petitioner under Section 482 Cr.P.C. is not maintainable as the petitioners of that petition have not availed the remedy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the present petitioner (Giri Raj Sharma) dated 08.11.2016 (c) Statement of Mr. Dilip Kumar dated 13.01.2015 and 18.10.2016 (d) Statement of Mr. Jonas Lal Marandi dated 09.01.2015 and 25.10.2016 (e) Statement of Mr. Dhirendra Kumar Singh dated 16.09.2016, 09.11.2016 10.11.2016 (f) Statement of Mr. Bhupendra Singh dated 21.09.2016 (g) Statement of Mr. Rakesh Kumar Gupta dated 27.10.2016 (h) Statement of Mr. B.R. Arora dated 23.01.2015, 19.10.2016 21.11.2017 (i) Statement of Mr. A.C. Srivastava dated 29.06.2018 (j) Statement of Mr. H.C. Pant dated 29.06.2018 The careful perusal thereof would clearly reveal that all the aforesaid statements of the aforesaid persons were recorded under Section 50 of the Act, 2002 before 30.06.2018 i.e. the date of filing the Prosecution Complaint before the learned trial court. 16. It would be apposite to refer the explanation (ii) of Section 44 (1) of the Act, 2002 as the Supplementary Prosecution Complaint could have been filed by the ED under the aforesaid provisions of law 44. Offence triable by Special Courts.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sible for implementation of contract provisions which he failed to do so, therefore, he abused his official position and fraudulently prepared the entries of forged bills of Cement, Bitumen and Recron in the relevant Registers, therefore, he is also responsible. 21. Therefore, in view of the above, I am of the considered opinion that the question as to whether the allegation of abuse of official position by not taking proper care and precaution in verifying the entries and bills would be treated as an offence under the Act, 2002, may be considered after exchange of affidavits. 22. I have noted one more thing from Annexure No.2, which is a charge-sheet filed by the C.B.I. before the learned trial court of C.B.I. on 30.10.2013 indicating the culpability of the present petitioner. The relevant portion thereof is at running page 58 of the petition whereby the petitioner has been held responsible for abusing his official position as such a public servant and further allegation is relating to accepting an illegal gratification from the Contractor Sri B.R. Arora. 23. The impugned Supplementary Prosecution Complaint against the petitioner alleges the same allegation as has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial court summons an accused person without carefully adverting to the facts and law of the case, the said summoning order would be bad in law. For convenience, para-28 reads as under:- 28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. it is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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