2021 (12) TMI 79 - HC - Money Laundering

Money Laundering - siphoning of funds - petitioner being vexed for two times - offences punishable under Sections 409, 420, 468, 471 and 477 IPC and Section 13(2) r/w 13(1)(c) and (d) of Prevention of Corruption Act - HELD THAT - Merely for the reason that clause (a) of Section 44(1) states that Special Court is constituted for trial of offence under Section 4; it cannot be construed that the case has to be committed to the Special Court in accordance with Section 209 Cr.P.C. In the expression, 'without the accused being committed, the word 'committed' does not take the meaning as can be ascribed to it in the context of Section 209 Cr.P.C. Here expression takes the meaning that even without production of accused before the court or even in the absence of the accused, the Special Court can take cognizance. The petitioner being vexed two times - HELD THAT - The CBI prosecuted the petitioners for the offences which are not same as offences under Section 4 of PMLA Act. Article 20(3) of the Constitution of India as also Section 300 of Cr.P.C. are applicable only when prosecution is launched for the second time for the same offence or offences in relation to a particular incident of crime, which is not the factual position here. Therefore this ground also fails. Bar envisaged under Article 20(2) of the Constitution of India - HELD THAT - Although the Supreme Court in STATE OF BOMBAY VERSUS KATHI KALU OGHAD 1961 (8) TMI 34 - SUPREME COURT has held that the interest of an accused is protected under Article 20(2) of the Constitution of India if his statement is taken during investigation, it is also held that such statement must have been outcome of compulsion during the time the accused is in police custody. Para 20 of the judgment which Sri. M.S. Shyamsundar referred to, states that the protection under Article 20(3) is available to accused in the court room and also outside the court during investigation if it is a compelled testimony. By applying the conclusions drawn by the Supreme Court in Kathi Kalu Oghad, the position that becomes clear is that if a person is examined under Section 50 of PMLA during investigation, he cannot seek protection under Article 20(3) of the Constitution unless he was an accused at the time of investigation. If it is assumed that protection under Article 20(3) is still available even if a person is not shown as accused during investigation, the prosecution can still prove its case based on other evidence. In this view, third point of argument of Sri. M.S. Shyamsundar also fails. Petition dismissed.

Summary

Issues Involved:
1. Committal of the case to the Special Court under Section 44 of PMLA.
2. Double jeopardy under Article 20(1) of the Constitution of India and Section 300 of Cr.P.C.
3. Admissibility of voluntary statements under Article 20(3) of the Constitution of India.

Detailed Analysis:

Issue 1: Committal of the Case to the Special Court
The petitioners argued that the Special Court should not have proceeded against them for the offence under Section 4 of PMLA without the case being committed by the Magistrate. They cited Section 44 of PMLA, which deals with offences triable by the Special Court, suggesting that the Magistrate must commit the case to the Special Court. However, the court clarified that Section 44(1)(b) of PMLA explicitly states that the Special Court may take cognizance of the offence upon a complaint made by an authorized authority without the accused being committed to it for trial. The term "committed" does not imply the procedure under Section 209 Cr.P.C. but rather indicates that the Special Court can take cognizance even without the production or presence of the accused. Therefore, the argument regarding committal to the Special Court was rejected.

Issue 2: Double Jeopardy
The petitioners contended that prosecuting them under PMLA for the same set of facts for which they were already prosecuted by the CBI under various sections of IPC and Prevention of Corruption Act amounts to double jeopardy, violating Article 20(1) of the Constitution of India and Section 300 of Cr.P.C. The court noted that the offences under PMLA are distinct and independent from those under IPC and Prevention of Corruption Act. The petitioners were prosecuted for siphoning money and acquiring immovable property from the proceeds of crime, which constitutes a separate offence under Section 4 of PMLA. The court emphasized that the result of proceedings related to predicate offences is immaterial for PMLA offences. Thus, the principle of double jeopardy does not apply here, and this ground also failed.

Issue 3: Admissibility of Voluntary Statements
The petitioners argued that their voluntary statements given under Section 50 of PMLA during interrogation cannot be used against them due to the protection under Article 20(3) of the Constitution of India, which prevents self-incrimination. They relied on the Supreme Court's judgment in State of Bombay Vs. Kathi Kalu Oghad. The court, however, noted that Article 20(3) protection applies only if the statements were compelled while the person was an accused. The court referred to the Supreme Court's conclusions in Kathi Kalu Oghad, which state that mere questioning by a police officer resulting in a voluntary statement is not compulsion. Additionally, the court cited the Delhi High Court's ruling in Vakamulla Chandrashekar, which clarified that Article 20(3) protection would apply only when the person is named as an accused in the complaint filed before the Special Court. Since the petitioners were not accused at the time of their statements under Section 50 of PMLA, this protection did not apply. Therefore, this argument also failed.

Conclusion:
The court found no infirmities in the impugned order and dismissed the writ petition, concluding that the arguments presented by the petitioners on all three grounds were unsustainable.