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TMI Blog2023 (2) TMI 236X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the petitioner under the Foreign Exchange Management Act, 1999 For short, "FEMA" through an Office Order dated 3.8.2021. 4. It appears that thereafter a complaint was lodged on 7.9.2021 by one Vikas Sankritayan, claiming to be the founder of Hindu IT Cell, in FIR No.2049/2021 with Indirapuram Police Station, Ghaziabad for alleged offences under Sections 403, 406, 418 and 420 IPC read with Section 66D of the Information Technology (Amendment) Act, 2008 and Section 4 of the Black Money Act. 5. In the meantime, the petitioner received an order under Section 37 of the FEMA read with Section 133(6) of the Income tax Act, 1961 from the Mumbai Zonal Office of the Enforcement Directorate seeking certain documents, in addition to the documents submitted by the petitioner in response to the previous Office Order dated 3.8.2021 issued by the very same Mumbai Zonal Office. 6. After the petitioner submitted a detailed response to the Mumbai Zonal Office of the Enforcement Directorate, the Delhi Zone-II Office of the Directorate of Enforcement registered a complaint in ECIR No.DLZO-II/58/2021 on 11.11.2021, in the Court of the Special Judge at Ghaziabad. It was stated in the said compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rea in which the offence has been committed. This is notwithstanding anything contained in the Code of Criminal Procedure, 1973 For short, "Cr.P.C". Apart from the non-obstante clause with which Section 44(1) begins, Section 71 of the Act also gives overriding effect to PMLA. Therefore, it is contended by the learned Counsel for the petitioner that the Special Court in Maharashtra alone could have taken cognizance of the complaint. 13. Heavy reliance is placed by the learned Counsel for the petitioner on the opinion of this Court in paragraphs 353 to 358 of the decision in Vijay Madanlal Choudhary & Ors. vs. Union of India & Ors. 2022 SCC OnLine SC 929. It was held in the said decision that the trial of the offence of money-laundering should proceed before the Special Court constituted for the area in which the offence of money-laundering has been committed and that in case the scheduled offence is triable by the Special Court under a special enactment elsewhere, both the trials need to proceed independently, but in the area where the offence of moneylaundering has been committed. Paragraphs 356 and 357 of the decision in Vijay Madanlal Choudhary (supra) read as follows: "356. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent necessarily had to lodge the Enforcement Case Information Report (ECIR) on 11.11.2021, on the file of the same court, within whose jurisdiction the scheduled offence became triable. In addition, it is contended by the learned Solicitor General that the petitioner was alleged to have received money through an online crowdfunding platform and that there were several victims within the territorial jurisdiction of the Court of the Special Judge who had contributed money. In other words, it is the contention of the learned Solicitor General that a part of the cause of action had actually arisen within the jurisdiction of the Court of the Special Judge, Ghaziabad. 16. From the rival contentions, it appears that two questions arise for consideration before us. They are (i) whether the trial of the offence of money-laundering should follow the trial of the scheduled/predicate offence or vice versa; and (ii) whether the Court of the Special Judge, Anti-Corruption, CBI Court No.1, Ghaziabad, can be said to have exercised extra-territorial jurisdiction, even though the offence alleged, was not committed within the jurisdiction of the said Court. 17. In order to find an answer to ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce punishable under Section 4 of the PMLA, with which the accused may be charged at the same trial under the Cr.P.C. In other words, a Special Court is constituted under Section 43(1) primarily for the purpose of trying an offence punishable under Section 4. But sub-section (2) of Section 43 confers an additional jurisdiction upon such a Special Court to try any other offence with which the accused may be charged at the same trial. Section 43 reads 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 Session 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. Explanation.-In this sub-section, "High Court" means the High Court of the State in which a Sessions Court designated as Special Court was functioning immediately before such designation. (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, it is clarified that,- (i) the jurisdiction of the Special Court while dealing with the offence under this Act, during investigation, enquiry or trial under this Act, shall not be dependent upon any orders passed in respect of the scheduled offence, and the trial of both sets of offences by the same court shall not be construed as joint trial; (ii) the complaint shall be deemed to include any subsequent complaint in respect of further investigation that may be conducted to bring any further evidence, oral or documentary, against any accused person involved in respect of the offence, for which complaint has already been filed, whether named in the original complaint or not." 23. What is dealt with by Section 44(1)(a) is a situation where there is no complication. Section 44(1)(a) lays down the most fundamental rule relating to territorial jurisdiction, by providing that an offence punishable under Section 4 of the PMLA and any scheduled offence connected to the same shall be triable by the Special Court constituted for the area in which the offence has been committed. It is relevant to note that Section 44(1)(a) uses the expression "offence" in three places in contradisti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1). Explanation (i) clarifies that the trial of both sets of offences by the same Court shall not be construed as joint trial. 27. A careful dissection of clauses (a) and (c) of sub-section (1) of Section 44 shows that they confer primacy upon the Special Court constituted under Section 43(1) of the PMLA. These two clauses contain two Rules, namely, (i) that the offence punishable under the PMLA as well as a scheduled offence connected to the same shall be triable by the Special Court constituted for the area in which the offence of money-laundering has been committed; and (ii) that if cognizance has been taken by one Court, in respect of the scheduled offence and cognizance has been taken in respect of the offence of money-laundering by the Special Court, the Court trying the scheduled offence shall commit it to the Special Court trying the offence of moneylaundering. 28. It is only because of the Special Court constituted under Section 43(1) being conferred primacy that Section 44(1) begins with the words "notwithstanding anything contained in the Code of Criminal Procedure". Though the PMLA contains a non-obstante clause in relation to the Cr.P.C, both in Section 44(1) and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigation; and (iii) trial. The words "inquiry" and "investigation" are defined respectively, in clauses (g) and (h) of Section 2 of the Code. 20. The principles laid down in Sections 177 to 184 of the Code (contained in Chapter XIII) regarding the jurisdiction of criminal courts in inquiries and trials can be summarised in simple terms as follows: 20.1. Every offence should ordinarily be inquired into and tried by a court within whose local jurisdiction it was committed. This rule is found in Section 177. The expression "local jurisdiction" found in Section 177 is defined in Section 2(j) to mean "in relation to a court or Magistrate, means the local area within which the court or Magistrate may exercise all or any of its or his powers under the Code". 20.2. In case of uncertainty about the place in which, among the several local areas, an offence was committed, the Court having jurisdiction over any of such local areas may inquire into or try such an offence. 20.3. Where an offence is committed partly in one area and partly in another, it may be inquired into or tried by a court having jurisdiction over any of such local areas. 20.4. In the case of a continuing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20.14. An offence of cheating and dishonestly inducing delivery of the property may be inquired into or tried by a court within whose local jurisdiction the property was delivered by the person deceived or was received by the accused person. 20.15. Some offences relating to marriage such as Section 494 IPC (marrying again during the lifetime of husband or wife) and Section 495 IPC (committing the offence under Section 494 with concealment of former marriage) may be inquired into or tried by a court within whose local jurisdiction the offence was committed or the offender last resided with the spouse by the first marriage. (Nos. 13 to 15 are found in Section 182) 20.16. An offence committed in the course of a journey or voyage may be inquired into or tried by a court through or into whose local jurisdiction that person or thing passed in the course of that journey or voyage. (Section 183). 20.17. Cases falling under Section 219 (three offences of the same kind committed within a space of twelve months whether in respect of the same person or not), cases falling under Section 220 (commission of more offences than one, in one series of acts committed together as to form th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offence of money-laundering is triable only by the Special Court constituted for the area in which the offence of money-laundering has been committed. To find out the area in which the offence of money-laundering has been committed, we may have to go back to the definition in Section 3 of the PMLA. 38. As we have pointed out earlier, the involvement of a person in any one or more of certain processes or activities connected with the proceeds of crime, constitutes the offence of money laundering. These processes or activities include, (i) concealment; (ii) possession; (iii) acquisition; (iv) use; (v) projecting as untainted property; or (vi) claiming as untainted property. 39. In other words, a person may (i) acquire proceeds of crime in one place, (ii) keep the same in his possession in another place, (iii) conceal the same in a third place, and (iv) use the same in a fourth place. The area in which each one of these places is located, will be the area in which the offence of money laundering has been committed. To put it differently, the area in which the place of acquisition of the proceeds of crime is located or the place of keeping it in possession is located or the place in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner or perhaps their Bankers. 45. Therefore, the question of territorial jurisdiction in this case requires an enquiry into a question of fact as to the place where the alleged proceeds of crime were (i) concealed; or (ii) possessed; or (iii) acquired; or (iv) used. This question of fact will actually depend upon the evidence that unfolds before the Trial Court. It will be useful in this regard to extract Paragraph 38 of the decision in Kaushik Chatterjee which reads as follows: - "38. But be that as it may, the upshot of the above discussion is: 38.1. That the issue of jurisdiction of a court to try an "offence" or "offender" as well as the issue of territorial jurisdiction, depend upon facts established through evidence. 38.2. That if the issue is one of territorial jurisdiction, the same has to be decided with respect to the various rules enunciated in Sections 177 to 184 of the Code. 38.3. That these questions may have to be raised before the court trying the offence and such court is bound to consider the same." 46. Therefore, we are of the view that the issue of territorial jurisdiction cannot be decided in a writ petition, especially when there is a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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