TMI Blog2023 (9) TMI 1069X X X X Extracts X X X X X X X X Extracts X X X X ..... no case could be established. Therefore, a person who is granted pardon under Section 306 Cr.P.C. in a scheduled offence, would not be a person who has been finally absolved by a Court of competent jurisdiction owing to an order of discharge, acquittal or because of quashing of the scheduled offence against him mentioned in Vijay Madanlal Chaudhary [ 2022 (7) TMI 1316 - SUPREME COURT] , against whom no proceedings under PMLA can continue. Section 46 of the Prevention of Money Laundering Act, 2002 provides that the persons conducting the prosecution before the Special Court, shall be deemed to be a Public Prosecutor. However, the public prosecutor conducting the trial of the offence under PMLA before the Special Court cannot file objections regarding concealment of facts relating the processes or activities connected with proceeds of the offence, namely - (a) concealment; or (b) possession; or (c) acquisition; or (d) use; or (e) projecting as untainted property; or (f) claiming as untainted property before the Court trying the scheduled offence. Grant of pardon under Section 306 Cr.P.C. would not fall within the purview of the words finally absolved by a Court of competent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e applicant. 3. In furtherance of the order dated 16.07.2015, passed by a Division Bench of this Court in Writ Petition No. 12396 (M/B) of 2014, the C.B.I. had registered an FIR bearing RC No. DST/2015/A/0003/CBI/ STF/DLI against five persons - (1) Yadav Singh, the then Chief Engineer Noida, (2) Smt. Kusumlata, wife of Yadav Singh, (3) Ms. Garima Bhushan, daughter of Yadav Singh, (4) Sunny Yadav, son of Yadav Singh and (5) Rajinder Manocha, as associate of Yadav Singh, for commission of offences under Section 109 read with 120- B IPC, read with Section 13(2), read with Section 13(1)(e) of Prevention of Corruption Act, 1988 on 30.07.2015. 4. The C.B.I., after investigation, submitted a charge-sheet dated 26.09.2017 against 11 persons, including the applicant. It is stated in the charge-sheet that Yadav Singh was found in possession of disproportionate assets worth 231,541,514 - 512.66% to his known₹ 231,541,514 - 512.66% to his known sources of income, either in his own name or in the name of his family members. The applicant was the Chartered Accountant of Yadav Singh. 5. The family members of Yadav Singh had incorporated numerous companies and firms and most of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On 29.04.2019, the E.D. issued summon under Sub-sections (2) and (3) of Section 50 of Prevention of Money Laundering Act to the applicant, directing him to appear on 13.05.2019 and another summon was issued on 27.05.2019 directing him to appear on 11.06.2019. Thereafter a non-bailable warrant was issued against the applicant. 12. On 04.02.2023, the applicant filed an application for recall of the nonbailable warrant, without appearing before the trial Court and the application was rejected on the same date. 13. The applicant has sought quashing of the proceedings under the Prevention of Money Laundering Act on the ground that he has been made an approver and has been granted pardon in the scheduled offence. Now, he is no more an accused in the scheduled offence. The proceedings under the Prevention of Money Laundering Act cannot continue only against a person who is an accused in a scheduled offence and having been granted pardon in the scheduled offence, he cannot be tried for the offence under PMLA also. 14. The affidavit filed in support of the application contains references to the judgments in the cases of Vijay Madanlal Chaudhary versus Union of India, 2022 SCC OnLi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cope of power under Section 482 Cr.P.C., but neither their citations have been mentioned nor has any other particulars of the judgments been disclosed and copies to these judgments have also not supplied to the Court. This casual manner of giving references of precedents cannot be appreciated by the Court. 18. Chapter IV of the Allahabad High Court Rules, 1952 deals with Affidavits and Oath Commissioners and Rule 8 of Chapter IV provides that The affidavit shall contain no statement which is in the nature of an expression of opinion or argument. The affidavit and the counter affidavit filed in the present case are full of arguments and case laws in support of the arguments, which certainly is in violation of Rule 8 aforesaid. 19. Further, Rule 12 of Chapter IV of the Allahabad High Court Rules provides that Except on interlocutory applications, an affidavit shall be confined to such fact as the deponent is able of his own knowledge to prove. 20. Application under Section 482 Cr.P.C. is certainly not an interlocutory application and the affidavit and the counter affidavit filed in the present case should have been confined to facts within the personal knowledge of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erived or obtained as a result of criminal activity relating to or in relation to a scheduled offence . (Emphasis supplied) 25. In the Conclusions recorded in Vijay Madanlal Chaudhary (Supra), the Hon ble Supreme Court reiterated that: - 467. In light of the above analysis, we now proceed to summarise our conclusion on seminal points in issue in the following terms: * * * (v) (d) The offence under Section 3 of the 2002 Act is dependent on illegal gain of property as a result of criminal activity relating to a scheduled offence. It is concerning the process or activity connected with such property, which constitutes the offence of money-laundering. The Authorities under the 2002 Act cannot prosecute any person on notional basis or on the assumption that a scheduled offence has been committed, unless it is so registered with the jurisdictional police and/or pending enquiry/trial including by way of criminal complaint before the competent forum. If the person is finally discharged/acquitted of the scheduled offence or the criminal case against him is quashed by the Court of competent jurisdiction, there can be no offence of money-laundering against him or any one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Act. The pardon would operate in respect of all offences pertaining to that transaction. However, the pardon does not operate in respect of a transaction or act entirely unconnected with the offence in respect of which pardon has been granted. In this case, the pardon has been granted for the offence of misappropriation of funds. This offence has nothing to do with filing of false returns by the appellant. The prosecution under Sections 277 and 278 is in respect of filing false return and making of false declaration. The pardon which has been granted would not cover those offences. (Emphasis supplied) The Hon ble Supreme Court did not interfere in the order of the High Court. 28. In A.J. Peiris v. State of Madras, AIR 1954 SC 616, it was held that the moment the pardon is tendered to the accused, he must be presumed to have been discharged, whereupon he ceases to be an accused and becomes a witness. 29. In Prakash Industries Ltd. versus Union of India, 2023/DHC/000481 = 298 (2023) DLT 444, the questions involved were stated in the first paragraph of the judgment thus: - 1. These two writ petitions raise an important question relating to the powers of the Enforc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tract the provisions of Article 20(2) of the Constitution or Section 300 of the Criminal Procedure Code; (vi) The finding in the adjudication proceedings in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue; and (vii) In case of exoneration, however, on merits where the allegation is found to be not sustainable at all and the person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, the underlying principle being the higher standard of proof in criminal cases. * * * 39. In our opinion, therefore, the yardstick would be to judge as to whether the allegation in the adjudication proceedings as well as the proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceedings is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceedings, the trial of the person concerned shall be an abuse of the process of the court. (Emphasis supplied) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adesh and Another, 2023 SCC OnLine SC 127, the issue before the Hon ble Supreme Court was whether on the charge sheet having been filed and during that period the appellants having cooperated but not having appeared before the Court personally but through a counsel, the action of the trial Court to issue non-bailable warrants is something which can be sustained. There was no issue regarding the effect of grant of pardon in the scheduled offence, consequent to the accused having turned an approver. Therefore, the aforesaid case is of no relevance for decision of the present case. 39. In Sanjay Kumar Agarwal Versus Directorate of Enforcement, 2022 SCC OnLine Jhar 1248, the High Court of Jharkhand at Ranchi was dealing with a petition filed for quashing of an order passed by the trial Court rejecting an application under Section 205 Cr.P.C. for dispensing with the personal appearance of the petitioner, and the issue regarding the effect of grant of pardon in the scheduled offence was not involved there. Therefore, the aforesaid case also is of no relevance for decision of the present case. 40. In Pepsi Foods Ltd. and others versus Special Judicial Magistrate and others, (1998) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MLA. It is a well established principle of the law of precedents that a decision is an authority for which it decides and not what can logically be deduced therefrom. It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. 46. In light of the aforesaid principle, this Court has to consider whether grant of pardon under Section 306 Cr.P.C. would also fall within the purview of finally absolved by a Court of competent jurisdiction owing to an order of discharge, acquittal or because of quashing of the scheduled offence against him . 47. Sections 306 Cr.P.C., which deals with the issue of grant of pardon, provides as follows: - 306. Tender of pardon to accomplice. (1) With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which this section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and the Magistrate of the first class inquiring into or trying the offence, at any stage of the inquiry or trial, may t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectly concerned in or privy to an offence to which the section applies, at any stage of the investigation or inquiry or trial of the offence on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence. * * * 17. An accomplice who has been granted pardon under Section 306 or 307 CrPC gets protection from prosecution. When he is called as a witness for the prosecution, he must comply with the condition of making a full and true disclosure of the whole of the circumstances within his knowledge concerning the offence and to every other person concerned, whether as principal or abettor, in the commission thereof and if he suppresses anything material and essential within his knowledge concerning the commission of crime or fails or refuses to comply with the condition on which the tender was made and the Public Prosecutor gives his certificate under Section 308 CrPC to that effect, the protection given to him is lifted. (Emphasis supplied) 50. In Yakub Abdul Razak Memon v. State of Maharashtra, (2013) 13 SCC 1, the Hon ble Supreme Court highlighted the legislative intent behind enactment of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, or any other property in furtherance of the succession to which he or she committed or abetted the commission of the murder. The section deals with the disqualification from inheritance of a person who commits murder or abets commission of murder. The provision of the section provides for a statutory recognition to the Hindu Law whereunder the rule is applied not on the basis of text but upon the principle of justice, equity and good conscience. (Vide Kenchava Kom v. Girimallappa Channappa AIR 1924 PC 209) The rule had been made applicable by all courts consistently including this Court as is evident from the judgment in Vellikannu v. R. Singaperuma (2005) 6 SCC 222. 35. Once the immunity extends to the accused and the accused ismade an approver, he stands discharged whereupon he ceases to be an accused and would be examined only as a witness unless the said privilege is revoked on violation of the condition of disclosing complete truth. [See State (Delhi Admn.) v. Jagjit Singh and Jasbir Singh (Supra).] 36. Thus, the illustration cited hereinabove quoting Section 25 of the 1956 Act reflects the policy of law and the court must be alive to such situations while p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and an order of acquittal is passed when the accused could not be proved guilty even after facing the trial. On the other hand, pardon is granted to a person who is supposed to have been directly or indirectly concerned in or privy to an offence . Pardon is granted only to a person who was involved in commission of the offence and not to a person against whom no case is made out or no case could be established. 56. Grant of pardon under Section 306 Cr.P.C. would not fall within the purview of the words finally absolved by a Court of competent jurisdiction owing to an order of discharge, acquittal or because of quashing of the scheduled offence against him used by the Hon ble Supreme Court in Vijay Madanlal Chaudhary (Supra). The pardon granted under Section 306 Cr.P.C. to a person in a scheduled offence would not ipso facto result in his acquittal in the offence under the PMLA, unless, of course, the accused person seeks pardon in the case under PMLA also by making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence under PMLA also. 57. The power under Section 482 Cr.P.C. can be exercised to secure the ends of justice, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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