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TMI Blog2021 (5) TMI 530X X X X Extracts X X X X X X X X Extracts X X X X ..... '), the impugned order transferring the case to such a court, which does not have the jurisdiction to decide it, is patently erroneous and is liable to be set aside. 3. The controversy in the present case arises in the following factual context. 4. Respondent No. 1 (hereafter 'CBI') registered two FIRs against the Petitioner herein. The first bearing RC No. 217/2018/A/0003 dated 01.05.2018 under Sections 420/120B of the Indian Penal Code, 1860 (hereafter 'IPC') and Section 13(2) read with Section 13(1)(d) of the PC Act. The second bearing RC No. 217/2018/A/0004 dated 05.05.2018 registered under Sections 348/120 of the IPC and Section 8 of the PC Act. On the basis of these FIRs, Respondent No. 2 (hereinafter the 'ED') registered a common Enforcement Case Information Report bearing no. 03/HIU/2018 dated 09.05.2018. 5. On 31.07.2018, CBI filed the Final Report under Section 173 of the Criminal Procedure Code, 1973 (hereafter 'Cr.PC'), in respect of RC No. 217/2018/A/0003. Subsequently, proceedings under Sections 13(2) and 13(1)(d) of the PC Act against the Petitioner were dropped for want of sanction for prosecution by the Competent Authority. The case was, thereafter, transferred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State Represented by Inspector of Police: (1999) 6 SCC 559, wherein the Court held that Section 4 of the PC Act confers exclusive jurisdiction to the Special Judges appointed under Section 3 of the PC Act and that the term 'only' used in Sub-Section (1) of Section 4 of the PC Act confers exclusivity in terms of jurisdiction upon the Judges so appointed. Next, he referred to the decision of the High Court of Kerala in Inspector of Police, CBI v. Assistant Director & Ors.: Crl. M. C. No. 2178 of 2019, decided on 08.11.2019. In its decision, the High Court held that if a case involving the PC Act is committed to a Special Court constituted under the PMLA, such court will have no jurisdiction to try the case so committed. 11. He also contended that Section 4 of the PC Act overrides Section 44 of the PMLA and that Section 71 of the PMLA has no application to the present case. It is his case that the non-obstante provision contained in Section 4(1) of the PC Act ousts the application of any other law. And thus, the Special Courts established under PMLA have no jurisdiction to try any case charging the accused of committing an offence punishable under the PC Act. Next, he submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 3(1) of the PC Act. In P. Nallamal and Ors. v. State Represented by Inspector of Police (supra), the Supreme Court had authoritatively held that a Special Judge as appointed under Section 3(1) of the PC Act would have exclusive jurisdiction to try offences under the PC Act. The relevant extract of the said decision is set out below:- "8. Before dealing with the contention advanced by the appellants we may point out that Section 4 of the P.C. Act confers exclusive jurisdiction to Special Judges appointed under the P.C. Act to try the offences specified in Section 3(1) of the P.C. Act ..... 9. The placement of the monosyllable "only" in the sub- section is such that the very object of the subsection can be discerned as to emphasize the exclusivity of the jurisdiction of the Special Judges to try all offences enveloped in Section 3(1)....." 16. In view of the non-obstante provision in Sub-section (1) of Section 4 of the PC Act, it would override any other inconsistent provision under the Cr.PC or any other law in force. 17. Section 3 of PC Act enables the Central Government or the State Government to appoint Special Judges to try any offence punishable under the PC A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be charged at the same trial." 19. Section 44 of the PMLA sets out the offences triable by Special Courts constituted under Section 43 of the PMLA. Sub-Section (1) of Section 44 of the PMLA also contains a non-obstante clause to overcome any repugnancy with the provisions of Cr.PC. Section 44 of the PMLA is set out below:- "44. Offences triable by Special Courts.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), - (a) an offence punishable under section 4 and any scheduled offence connected to the offence under that section shall be triable by the Special Court constituted for the area in which the offence has been committed: Provided that the Special Court, trying a scheduled offence before the commencement of this Act, shall continue to try such scheduled offence; or (b) a Special Court may, upon a complaint made by an authority authorised in this behalf under this Act take cognizance of offence under section 3, without the accused being committed to it for trial. Provided that after conclusion of investigation, if no offence of money-laundering is made out requiring filing of such compliant, the said authority shall submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overriding effect to certain provisions, to overcome any inconsistency with any other provision in the same act or any other enactment. (See: Union of India and Anr. v. G.M. Kokil And Ors.: 1984 Supp SCC 196). 22. In the case of Aswini Kumar Ghosh and Anr. v. Arabinda Bose and Anr.: AIR 1952 SC 369, a question arose as to the true construction of Section 2 of the Supreme Court Advocates (Practice in High Court) Act, 1951, which contained a non-obstante clause in the following form: "Notwithstanding anything contained in the Indian bar Council, 1926, or in any other law regulating the conditions subject to which a person not entered in the roll of Advocates of a High Court may be permitted to practice in that High Court". The Calcutta High Court in considering Section 2 of the Act held that an Advocate of the Supreme Court was not entitled to act on the original side of that High Court. This conclusion was reached by limiting the enacting part of the section by the non-obstante clause. The Supreme Court overruled the said view. The following observations made by Patanjali Shastri, C.J. are instructive: "23. ... This is not, in our judgment a correct approach, to the construction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , but to yield to the extent it is inconsistent with any other law for the time being in force. This is so, because the non-obstante provision in the opening sentence of Sub-section (1) of Section 44 of the PMLA cannot control the meaning of the principal clause. The non-obstante clause under Section 44(1) of the PMLA cannot be construed to mean that the provisions of Section 44(1) of the PMLA do not override provisions of any other enactment. The scope of the non-obstante provision under Section 44(1) of the PMLA is limited to expressly provide that the provisions of Section 44(1) of the PMLA would override any provision that may be inconsistent with the provisions of the Cr.PC. Thus, in case of any conflict or repugnancy between the provisions of the Cr.PC and provisions of various clauses under Section 44(1) of the PMLA, the provisions of the PMLA would be given effect to and the repugnancy would be resolved in favour of giving full effect to the provisions of Section 44(1) of the PMLA. However, the non-obstante provisions under Section 44(1) of the PMLA do not control the plain meaning of various clauses under Section 44(1) of the PMLA. Therefore, when it comes to the question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the Cr.PC, be charged at the same trial. Section 220 of the Cr.PC provides for cases where multiple offences may be tried at one trial. Sub-Section (1) of Section 220 of the Cr.PC, inter-alia, provides that if series of acts are so connected together as to form the same transaction and more than one offence has been committed by the accused, he may be charged with and tried for each offence at one trial. In such cases, where the offence of money laundering and the predicate offence arise from the same transaction, the Special Court under the PMLA would have the jurisdiction to try the same. 28. Clause (a) of Section 44(1) of the PMLA expressly provides that the scheduled offence and an offence punishable under Section 4 of the PMLA shall be triable by the Special Court constituted for the area in which the offence has been committed. Section 2(y) of the PMLA defines the expression 'scheduled offences'. The said definition includes offences as specified in Part A of the Schedule to the PMLA. Paragraph 8 of Part A of the Schedule to the PMLA lists out offences punishable under certain provisions of the PC Act, including offences under Section 8 of the PC Act. Thus, indisputably, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Court, trying a scheduled offence before the commencement of this Act, shall continue to try such scheduled offence; or" [underlined for emphasis] The word "only" was deleted with effect from 15.02.2013. The said amendment is relevant as it indicates that the jurisdiction of the other courts to try the predicate offence is not excluded but the Special Court designated under the PMLA would also have the jurisdiction to try the predicate offence. In this view, Clause (a) of Section 44(1) of the PMLA, is only an enabling provision that enables the Special Court to try the scheduled offences in the given cases. 32. If one examines the language of Clause (c) of Sub-section (1) of Section 44 of the PMLA in light of the explanation to Sub-section (1) of Section 44 of the PMLA, it is apparent that it is not necessary that only trial of such predicate offences, which can be tried along with the offence under the PMLA, may be transferred to the Special Court. Clause (c) of Section 44(1) of the PMLA also clarifies that once a case relating to a scheduled offence is transferred to the Special Court, the Court would proceed with the said case from the same stage at which it is committed. P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statutes and by giving effect to one over the other." 36. It is also relevant to refer to the decision of the Supreme Court in Jay Engineering Works Ltd. v. Industry Facilitation Council and Anr.: (2006) 8 SCC 677. The relevant observations made by the Court in this decision are as under: "28. Both the Acts contain non obstante clauses. Ordinary rule of construction is that where there are two non obstante clauses, the latter shall prevail. But it is equally well settled that ultimate conclusion thereupon would depend upon the limited context of the statute. (See Allahabad Bank, (2000) 4 SCC 406, para 34.) 29. In Maruti Udyog Ltd. v. Ram Lal, (2005) 2 SCC 638, it was observed: (SCC p. 653, para 39) "39. The interpretation of Section 25-J of the 1947 Act as propounded by Mr Das also cannot also be accepted inasmuch as in terms thereof only the provisions of the said chapter shall have effect notwithstanding anything inconsistent therewith contained in any other law including the Standing Orders made under the Industrial Employment (Standing Orders) Act, but it will have no application in a case where something different is envisaged in terms of the statutory scheme. A benefi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at a special act overrides a general act is not applicable in the present case. PC Act and PMLA are both special statutes in their own fields. Both relate to different offences and none of the two enactments can be considered as general or special in relation to the other. Thus, the question whether the provisions of Section 44(1)(a) and Section 44(1)(c) of the PMLA have to be given effect to despite being repugnant to Section 4(1) of the PC Act must be considered keeping in view other principles. 41. One of the well accepted principles for addressing repugnancy between two statutes is that the later enactment overrides an earlier enactment. This is also subject to examination of the purpose and objective of the enactments. 42. In Solidaire India Ltd. v. Fairgrowth Financial Services Ltd. (supra), the Supreme Court referred to the decision of the Special Court in Bhoruka Steel Ltd. v. Fairgrowth Financial Services Ltd.: (1997) 89 Company Cases 547, and upheld the aforesaid principle. The relevant extract of the said decision is set out below: "10. We may notice that the Special Court had in another case dealt with a similar contention. In Bhoruka Steel Ltd. v. Fairgrowth Financ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in reconstruction. The Board for Industrial and Financial Reconstruction whilst considering a scheme for reconstruction has to keep in mind the fact that it is to be paid off or directed by the Special Court. The Special Court can, if it is convinced, grant time or instalments." 43. In Maharashtra Tubes Ltd. v. State Industrial and Investment Corporation of India: (1993) 2 SCC 144, the Supreme Court considered the question regarding inconsistency between two special laws - the Finance Corporation Act, 1951 and the Sick Industrial Companies (Special Provisions) Act, 1985. The Supreme Court noted that both the said Statutes contained non-obstante clauses but "1985 Act being a subsequent enactment, the non-obstante clause therein would ordinarily prevail over the non-obstante clause found in Section 46B of the 1951 Act unless it is found that the 1985 Act is a general statute and the 1951 Act is a special one". 44. The principle that in case of any repugnancy, the later enactment shall prevail over the subsequent one rests on the proposition that the legislature is presumed to be aware of the earlier enactment and if the later enactment is inconsistent with the earlier, it must be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry interpretation dictate that in the event of two special acts containing non obstante clauses, the later law shall typically prevail. In the present case, as we have seen, the Senior Citizen's Act 2007 contains a non obstante clause. However, in the event of a conflict between special acts, the dominant purpose of both statutes would have to be analyzed to ascertain which one should prevail over the other. The primary effort of the interpreter must be to harmonize, not excise." 47. The purpose and objective of including provisions to ensure that the Special Courts under the PMLA also have the jurisdiction to try scheduled offences is obvious when one examines the nature of the offence of money laundering. The said offence is described in Section 3 of the PMLA, which provides that whoever directly or indirectly attempts to indulge or knowingly assists or is otherwise party in any process or "activity connected with proceeds of crime" including its concealment, possession, acquisition or use and projecting or claiming it as an untainted property, shall be guilty of committing an offence of money laundering. 48. The expression 'proceeds of crime' is defined in Clause (u) of Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the PMLA would necessarily override the provisions of Section 4(1) of the PC Act. 51. The PC Act - as is expressly indicated by Section 28 of the PC Act - is enacted in addition to and not in derogation of any other law. The object of enacting the said law is to consolidate and amend the law relating to prevention of corruption and for matters connected therewith. The Parliament in its wisdom had considered it appropriate that cases under the said Act be tried by Special Judges, who are or have been a Sessions Judges or Additional Sessions Judges or Assistant Sessions Judges under the Cr.PC. Concededly, the Special Judges designated under the PMLA would also necessarily have to meet the said qualification. Thus, the Special Judges designated in terms of the PMLA are not, per se, ineligible or unqualified for being appointed as a Special Judge under the PC Act. The other provisions of the PC Act, which relate to investigation and the procedure for trying an offence under the PC Act, would have to be followed. 52. There is, thus, no reason whatsoever to believe that the legislative object of enacting the PC Act as a special act would not be served if the trial is conducted by a S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 43(2) of the PMLA and was applicable only where the accused was required to be tried for an offence under money laundering as well as the predicate offence under the same trial. In such cases, it is possible that the scheduled offence may have been committed in a jurisdiction of one Special Court but the offence punishable under Section 4 of the PMLA may have been committed in the jurisdiction of another Special Court. The Court held that Clause (a) of Section 44(1) of the PMLA addressed such a situation and had expressly provided that the accused would be tried only by the Special Court constituted for the area in which the offence punishable under Section 4 of the PMLA had been committed. 56. This Court is, respectfully, unable to agree with the view taken in Inspector of Police, CBI v. Assistant Director and Ors. (supra). It does not appear that the explanation, as introduced by the Finance (No.2) Act, 2019, was brought to the notice of the Hon'ble Court. Once the Legislature has clarified that trial of both sets of offences - scheduled as well as offences punishable under Section 4 of the PMLA - by the same court shall not be construed as a joint trial, the interpretation that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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