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TMI Blog2021 (9) TMI 1283X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be treated on a different footing. Also keeping in mind the provisions of Section 45 of the PML Act, at this stage it cannot be held that the learned trial court has committed any legal error in passing the order of issuance of non-bailable warrants. The petitioners have not been able to prima facie make out any case for staying the arrest warrants directed to be issued against them - Stay application dismissed. - S.B. Criminal Revision Petition No. 731/2021, S.B. Criminal Revision Petition No. 732/2021, S.B. Crl. Misc. Stay Application No. 3791/2021, S.B. Crl. Misc. Stay Application No. 3792/2021 - - - Dated:- 23-9-2021 - Hon'ble Mr. Justice Manoj Kumar Vyas For the Petitioner(s) : Mr. S. S. Hora, Advocate, Mr. Arun Goyal, Advocate, Mr. T. C. Sharma, Advocate For the Respondent(s) : Mr. R. D. Rastogi, ASG with Mr. Naman Deep Singh ORDER Both the Criminal Misc. Stay Applications in Revision Petition Nos. 731/2021 and 732/2021, filed against impugned order dated 12.07.2021, are being disposed of by this common order. Vide impugned order dated 12.07.2021 learned Sessions Judge, PMLA 2002/ Special Judge CBI Cases No.3, Jaipur Metro-I, in Complai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng including placement, layering and integration of any proceeds of crime. The complaint has been filed on the basis of surmises. Contravention of any of the provisions of the Environment (Protection) Act, 1986 (hereinafter referred as the Act of 1986 ) would make a person liable for penalty under Section 15, but invocation of Section 15 on standalone basis is not a scheduled offence. It is only when there is contravention of Section 7 or 8 of the Act of 1986, the offence would fall under paragraph 25 of part A of Schedule to the PML Act. No such contravention of the provision of Section 7 or Section 8 even finds mention in the criminal complaint No.157/2010. The statutory body holding authority under the Act of 1986, had sought punishment under Section 15 and 19 of the Act of 1986 only, and that too for a limited period. Thus, the alleged complaint has not been filed for contravention of any of the scheduled offences. Even, it is admitted fact that the petitioners have no connection with the company namely, M/s Agribiotech Industries Ltd after June 2008. Commission of a scheduled offence is the fundamental condition for giving rise to proceeds of crime and consequently, the appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kesh Kumar Meena S.B. Criminal Misc. (Petition) No. 7892/2018 RHC 17.12.2018 (xv) Oro Trade Network (India) Ltd. Ors v. State of Rajasthan Anr. (S.B. Criminal Revision No. 1915/2018 - RHC - 01.12.2018 (xvi) Satpal Rana v. Uma Nand Vijay S.B. Criminal Misc. Bail No. 11261/2018 RHC 18.09.2018 (xvii) Assistant Director, Enforcement Directorate v. Surendra Kumar Sharma Anr. Special Leave Petition (Criminal) Diary No. 22530/2018 SC 23.07.2018 (xviii) Pushya Mitra Singh Deo v. Union of India S.B. Criminal Misc. (Petition) No. 2097/2018 RHC 09.05.2018 (xix) Surendra Kumar Sharma Anr. v. Ms. Annupama Saxena S.B. Criminal Misc. (Petition) No. 5068/2017 RHC 11.10.2017 (xx) Vikas v. State of Rajasthan (2014) 3 SCC 321 (xxi) Pankaj Pratap Bhai Thakkar 6 v. Deputy Director 1. 2014 SCC OnLine Guj 13726 (xxii) Raghuvansh Dewanchand Bhasin v. State of Maharashtra Anr. (2012) 9 SCC 791 (xxiii) Dhariwal Tobacco Products Limited Ors. v. State of Maharashtra Anr. (2009) 2 SCC 370 (xxiv) Inder Mohan Goswami Anr. v. State of Uttranchal Ors (2007) 12 SCC 1 (xxv) Court On Its Own Motion v. Central Bureau of Investigation (2004) 72 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. Similar view has been held by Hon ble Apex Court in the case of Gautam Kundu v. Directorate of Enforcement (2015) 16 SCC 1, and has clearly held that the provisions of Cr.P.C. shall apply only to the extent it is not inconsistent with the provisions of PML Act. As per Section 24 of the PML Act, burden of proof is upon the accused person to show that he was not involved in commission of an offence under Section 3 of the PML Act. Section 24 clearly states that the court shall, unless the contrary is proved, presume that such proceeds of crime are involved in money laundering. It is further argued that the contention of the petitioners that invocation of Section 15 of the Act of 1986 on standalone basis is not a scheduled offence, is totally misconceived and baseless. In quite express terms, Section 15 prescribes punishment for contravention of Sections 7 and 8 of the Act of 1986, which is well covered within the ambit of the scheduled offence under paragraph 25 of Part A of the Schedule to the PML Act. The impugned order has been passed after taking into account all relevant facts and material available on the record. The petitioners have not, prima facie, proved that any le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ors. (2009) 17 SCC 555 (xv) P. Chidambaram v. Directorate of Enforcement (2019) 9 SCC 24 Heard learned counsel for the parties and perused the record. The revision petitions have been filed for setting aside the cognizance order dated 12.07.2021 and consequently for setting aside the order for issuance of non-bailable warrants for the appearance of petitioners. Learned court below has taken cognizance against the petitioners under Sections 3 and 4 of the PML Act and has issued non-bailable warrants against them for their appearance in the court. Section 204 Cr.P.C. deals with issuance of process if a Magistrate takes cognizance of an offence. The relevant portion of Section 204 of Cr.P.C. is reproduced as under :- 204. Issue of process. - (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be- (a) a summons-case, he shall issue his summons for the attendance of the accused, or (b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the person to serve him with a summon; or - it is considered that the person could harm someone if not placed into custody immediately. 54. As far as possible, if the court is of the opinion that a summon will suffice in getting the appearance of the accused in the court, the summon or the bailable warrants should be preferred. The warrants either bailable or nonbailable should never be issued without proper scrutiny of facts and complete application of mind, due to the extremely serious consequences and ramifications which ensue on issuance of warrants. The court must very carefully examine whether the criminal complaint or FIR has not been filed with an oblique motive. 55. In complaint case, at the first instance, the court should direct serving of the summons along with the copy of the complaint. If the accused seem to be avoiding the summons, the court, in the second instance should issue bailable warrant. In the third instance, when the court is fully satisfied that the accused is avoiding the court s proceeding intentionally, the process of issuance of the non-bailable warrant should be resorted to. Personal liberty is paramount, therefore, we caution courts at the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sses being tampered with, the larger interests of the public/State and other similar considerations. It has further been argued that after issuance of nonbailable warrants, the remedy only lies under Section 70(2) of Cr.P.C., whereas the petitioners have directly approached this court without taking recourse to the remedy available under Section 70(2) of Cr.P.C., as has been held in the case of Himanshu @ Hemant Rajendra Bhatt v. State of Maharashtra 2015 (2) Mh. L.J. 84. Further, it is submitted that as per Section 204 of Cr.P.C., it is the discretion of the trial court to summon a person either through summons or bailable or non-bailable warrants. In this regard reliance has been placed on :- (i) Pooran Singh v. State of Rajasthan (supra) (ii) Shyam Sundar Singhvi v. Union of India (supra) (iii) Shyam Sunder Singhvi v. UOI (supra) It has also been submitted that in Parbatbhai Aahir v. State of Gujarat (2017) 9 SCC 641, it has been held that the High Court would be fully justified in refusing to quash the proceedings when the same relates to commission of economic offences. Economic offences are to be dealt with a stricter approach. In this regard, relia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... warrant should be avoided, but in this case, coming to a prima facie satisfaction about the commission of offence under Sections 3/4 of the PML Act, the learned trial court has taken cognizance against the petitioners for the alleged crime and has issued non-bailable warrants against them. The learned trial court has taken all relevant facts of the case into consideration while passing the impugned order. In this regard, in para 13 of the impugned order, the learned trial court has observed as under :- So far as the staying of the impugned order by which cognizance has been taken against the petitioners for offence punishable under Section 3 read with Section 4 of the PML Act is concerned, without commenting upon detailed merits of the cognizance order, it would suffice to hold that the petitioners have not been able to demonstrate any prima facie case for staying the impugned order by which cognizance has been taken against them. Looking to the various pronouncements of Hon ble Supreme Court in which it has been held that severity of the offence for which a cognizance has been taken against the petitioners and other relevant factors, the trial court has discreti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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