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TMI Blog2024 (3) TMI 1138X X X X Extracts X X X X X X X X Extracts X X X X ..... cluding the petitioner herein, before the learned Special Judge. As per the said complaint, the accused persons, which included the petitioner, were found involved in a case arising out of FIR No. 302/2012, registered with Police Station, Gandhi Nagar, Jammu for offences under Sections 406, 409, 420, 467, 468, 471 and 120-B of the RPC. It was further alleged that provisionally attached amount of Rs. 32,34,633/- as also the moveable and immoveable property worth Rs. 1,16,49,649/- are proceeds of crime acquired by the accused, who had indulged in the commission of the scheduled offences that are subject matter of the aforesaid FIR. On the basis of these allegations, it was alleged that the accused have committed offence under Section 3 of PMLA, which is punishable under Section 4 of the said Act. It appears that the learned Special Judge vide his order dated 16.07.2018 took cognizance of the offences and recorded that prima facie offences under Sections 3 & 4 of the PMLA are shown to have been committed by the accused. Accordingly, the process was directed to be issued against the accused including the petitioner herein. 05. While the proceedings in the aforesaid complaint were goin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to whether the learned Special Judge was justified in taking cognizance of offence on the second occasion and issue process against the petitioner on the basis of the supplementary complaint. 09. So far as the first issue is concerned, in this regard, the definition of 'investigation', as contained in Section 2 (h) of the Cr. P.C. needs to be noticed. As per this provision, the investigation includes all the proceedings under the Code for collection of investigation conducted by a Police Officer or by any person other than a Magistrate, who is authorised by a Magistrate in this behalf. The 'investigation' has been defined under Section 2(na) of the PMLA to include all the proceedings conducted by the Director or by an authority authorised by the Central Government under the Act for collection of evidence. 10. When both the aforesaid provisions are read together, it becomes clear that the proceedings conducted by the Enforcement Directorate for the purpose of collection of evidence are to be termed as 'investigation'. Section 65 of the PMLA provides that the provisions of Code of Criminal Procedure, 1973 would apply, insofar as, they are not inconsistent with the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see Section 223 Cr.P.C). Accordingly, the filing of the subsequent complaint and the prayer of the prosecuting agency to prosecute the offenders including the petitioner herein in the subsequent complaint along with offenders arrayed in the earlier complaint cannot be said to be a procedure which is alien to law or prejudicial to the interest of the complaint. In this regard, reference may be made to the ratio of the Apex Court in S.R. Sukumar (supra) wherein the Court held that there are limited powers to amend a complaint and in order to correct patent ex-facie errors, which do not prejudice the accused or in certain circumstances where the trial of the offence or the offenders in the subsequent complaint are to be conducted together. In the aforesaid factual matrix, I am of the view that the filing of the subsequent complaint and the prayer to proceed against the accused therein along with accused persons in the earlier complaint is in no way prejudicial to the interest of the accused persons and is, in fact, for the ends of justice and to avoid multiplicity of proceedings." 13. A similar view has been taken by a Division Bench of High Court of Himachal Pradesh in the case of K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Code of Criminal Procedure or in the PMLA. However, in legal parlance, it means taking of judicial notice of an offence with a view to initiate proceedings in respect of such offence. As to what is meant by "taking of cognizance" has been a matter of discussion and debate before the Superior Courts of this country including the Supreme Court in a number of cases. In this regard it would be apt to refer to a few decisions of the Supreme Court. 16. In the case of Fakhruddin Ahmad vs. State of Uttaranchal and Anr. 2008 (17) SCC 157. The Supreme Court while dealing with this issue has, in paragraph 17 of the judgment observed as under: "17. Nevertheless, it is well settled that before a Magistrate can be said to have taken cognizance of an offence, it is imperative that he must have taken notice of the accusations and applied his mind to the allegations made in the complaint or in the police report or the information received from a source other than a police report, as the case may be, and the material filed therewith. It needs little emphasis that it is only when the Magistrate applies his mind and is satisfied that the allegations, if proved, would constitute an offence and decid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certain whether the commission of any offence is disclosed." 19. From the aforesaid analysis of law on the subject, it is clear that taking of cognizance would mean application of mind by the Magistrate/Court to the offence alleged to have been committed. It is also clear that cognizance is to be taken of the offence and not of the offender. 20. Now, the question arises as to whether a Magistrate can take cognizance of an offence more than once upon filing of supplementary challan/supplementary complaint. This question came up for consideration before the Supreme Court in the case of State of West Bengal vs. Salap Service Station and others, 1994 Suppl. (3) SCC 318. While dealing with this issue, the Supreme Court has held as under: "2. ... It may be mentioned here that in the supplementary charge-sheet allegations are to the effect that there was violation of Direction 12 of the Control Order. The question of taking cognizance does not arise at this stage since cognizance has already been taken on the basis of the main charge-sheet. What all Section 173(8) lays down is that the investigating agency can carry on further investigation in respect of the offence after a report und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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