TMI Blog2023 (2) TMI 236X X X X Extracts X X X X X X X X Extracts X X X X ..... that the trial of both sets of offences by the same Court shall not be construed as joint trial. It may be seen from the principles culled out from Sections 177 to 184 of the Cr.P.C that almost all contingencies that are likely to arise have been carefully thought out and laid down in these provisions. The only contingency that could not have been provided in the above provisions of the Cr.P.C, is perhaps where the offence of money-laundering is committed. This is why Section 44(1) begins with a non-obstante clause. The whole picture is thus complete with a combined reading of Section 44 of the PMLA and the provisions of Sections 177 to 184 of the Cr.P.C. - Once this combined scheme is understood, it will be clear that in view of the specific mandate of clauses (a) and (c) of subsection (1) of Section 44, it is the Special Court constituted under the PMLA that would have jurisdiction to try even the scheduled offence. Even if the scheduled offence is taken cognizance of by any other Court, that Court shall commit the same, on an application by the concerned authority, to the Special Court which has taken cognizance of the offence of money-laundering. Whether the Court of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order issued by the Court of the Special Judge, Anti-Corruption, CBI Court No.1, Ghaziabad, on a complaint lodged by the respondent under Section 45 read with Section 44 of the Prevention of Money-laundering Act, 2002 For short, PMLA or the Act , as the case may be , the petitioner has come up with the above writ petition under Article 32 of the Constitution of India. 2. We have heard Ms. Vrinda Grover, learned Counsel for the petitioner and Mr. Tushar Mehta, learned Solicitor General of India for the respondent. 3. It is the case of the petitioner that during the pandemic, she initiated crowdfunding campaign through an online crowdfunding platform named Ketto and ran three campaigns from April 2020 to September 2021. In connection with the same, the Mumbai Zonal Office of the Enforcement Directorate initiated an enquiry against 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 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition. It is claimed by the petitioner in paragraph 5(v) of the writ petition that No summons have yet been received by her and that she had annexed a screenshot of the e-court website reflecting the case details. However, a print out of the copy of the Summoning Order is filed along with the writ petition. 11. At the outset, it is made clear by Ms. Vrinda Grover, learned Counsel for the petitioner that the challenge to the impugned Summoning Order is limited to the question of territorial jurisdiction alone and that the impugned Summoning Order is not being challenged on any ground other than the lack of territorial jurisdiction. 12. In brief, the contention of the learned Counsel for the petitioner is that under Section 44(1) of the PMLA, an offence punishable under the Act, shall be triable only by the Special Court constituted for the area 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the bank account were initiated in New Delhi. Therefore, it is contended that the lodging of the complaint at Ghaziabad was an abuse of the process of the court and that the same having been done at the instance of the founder of the Hindu IT Cell, is completely vitiated. It is also contended that the Court of the Special Judge, ought to have returned the complaint to the respondent, in terms of Section 201 of the Code of Criminal Procedure and that the Order taking cognizance is vitiated also by non-application of mind. 15. In response, it is contended by Mr. Tushar Mehta, learned Solicitor General that under the scheme of the Act, the complaint of money-laundering should follow the complaint in respect of the scheduled offence. Since the complaint in respect of the scheduled offence was registered on 7.9.2021 in Indirapuram Police Station, Ghaziabad, the respondent 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 onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch property is taken or held outside the country, then the property equivalent in value held within the country or abroad. 20. PMLA provides for a two-pronged approach, one for dealing with the proceeds of crime and the other for dealing with the person guilty of the offence of money-laundering. While Chapter III and Chapter VI prescribe the procedure for dealing with the proceeds of crime, through a process of attachment, confirmation through adjudication and an appellate remedy to the Special Tribunal, Chapter VII deals with the prosecution of the money launderers by Special Courts. 21. Section 43(1) of the Act provides for the constitution of Special Courts, by the Central Government, in consultation with the Chief Justice of the High Court. Sub-section (2) of Section 43 empowers a Special Court constituted under Section 43(1), also to try an offence other than the offence 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 addi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oney-laundering is made out requiring filing of such complaint, the said authority shall submit a closure report before the Special Court; or (c) if the court which has taken cognizance of the scheduled offence is other than the Special Court which has taken cognizance of the complaint of the offence of money-laundering under sub-clause (b), it shall, on an application by the authority authorised to file a complaint under this Act, commit the case relating to the scheduled offence to the Special Court and the Special Court shall, on receipt of such case proceed to deal with it from the stage at which it is committed. (d) a Special Court while trying the scheduled offence or the offence of money-laundering shall hold trial in accordance with the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), as it applies to a trial before a Court of Session. Explanation.-For the removal of doubts, 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application so filed, the Court which has taken cognizance of the scheduled offence, should commit the case relating to the scheduled offence to the Special Court which has taken cognizance of the complaint of moneylaundering. 25. Therefore, it is clear that the trial of the scheduled offence should take place in the Special Court which has taken cognizance of the offence of money-laundering. In other words, the trial of the scheduled offence, insofar as the question of territorial jurisdiction is concerned, should follow the trial of the offence of money-laundering and not vice versa. 26. Since the Act contemplates the trial of the scheduled offence and the trial of the offence of money-laundering to take place only before the Special Court constituted under Section 43(1), a doubt is prone to arise as to whether all the offences are to be tried together. This doubt is sought to be removed by Explanation (i) to Section 44(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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was found; or (v) place where the property in respect of which the offence was committed, was found; or (vi) place where the property forming the subject-matter of an offence was required to be returned or accounted for, etc., according as the case may be. 32. As articulated in Kaushik Chatterjee (supra), the jurisdiction of a civil court is limited by territorial as well as pecuniary limits, but the jurisdiction of a criminal court is determined by (i) the offence; and/or (ii) the offender. 33. The discussion on the question of territorial jurisdiction in terms of the provisions of the Cr.P.C can be cut short by extracting the principles culled out in paragraphs 19 to 21 of the decision in Kaushik Chatterjee. They read as follows: 19. Chapter XIII of the Code of Criminal Procedure, 1973 contains provisions relating to jurisdiction of criminal courts in inquiries and trials. The Code maintains a distinction between (i) inquiry; (ii) 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 XII ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ired into or tried by a court within whose local jurisdiction, the offence was committed or the stolen property was possessed, received or retained. 20.11. An offence of criminal misappropriation or criminal breach of trust may be inquired into or tried by a court within whose local jurisdiction the offence was committed or any part of the property was received or retained or was required to be returned or accounted for by the accused person. 20.12. An offence which includes the possession of stolen property, may be inquired into or tried by a court within whose local jurisdiction the offence was committed or the stolen property was possessed by any person, having knowledge that it is stolen property. (Nos. 8 to 12 are found in Section 181) 20.13. An offence which includes cheating, if committed by means of letters or telecommunication messages, may be inquired into or tried by any court within whose local jurisdiction such letters or messages were sent or received. 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ided in the above provisions of the Cr.P.C, is perhaps where the offence of money-laundering is committed. This is why Section 44(1) begins with a non-obstante clause. The whole picture is thus complete with a combined reading of Section 44 of the PMLA and the provisions of Sections 177 to 184 of the Cr.P.C. 36. Once this combined scheme is understood, it will be clear that in view of the specific mandate of clauses (a) and (c) of subsection (1) of Section 44, it is the Special Court constituted under the PMLA that would have jurisdiction to try even the scheduled offence. Even if the scheduled offence is taken cognizance of by any other Court, that Court shall commit the same, on an application by the concerned authority, to the Special Court which has taken cognizance of the offence of money-laundering. This answers the first question posed before us. 37. Coming to the second question arising for our consideration, clause (a) of sub-section (1) of Section 44 leaves no semblance of any doubt that the 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 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake out (i) the number of persons who provided funds; and (ii) the places where the donors were located. 44. The bank account of the petitioner in HDFC Bank, Koperkhairane Branch, Navi Mumbai, Maharashtra, is the ultimate destination, to which all funds reached. Therefore, Navi Mumbai, Maharashtra is the place where the proceeds of crime were taken possession of (if they were actually proceeds of crime). Therefore, Navi Mumbai, Maharashtra is a place where only one of the six different processes or activities listed in Section 3 has been carried out. The other activity namely acquisition of the proceeds of crime (if they really are) has taken place in the virtual mode with people from different parts of the country/world transferring money online. If acquisition has taken place in the real physical world, the difficulty with respect to the question of jurisdiction would have been lesser. Since acquisition has taken place in the virtual world, the places from where online transfers of money took place, are known only to 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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