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TMI Blog2021 (12) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MLA' for short). The petitioners made an application under Section 227 Cr.P.C. for discharging them, and the said application having stood dismissed, the petitioner have filed this writ petition. 4. Assailing the impugned order, Sri. M.S. Shyamsundar put forward his argument on the following three lines. (i) The Special Court ought not to have proceeded against the petitioners for the offence under Section 4 of PMLA without the case being committed to it by the Magistrate. Section 44 of PMLA deals with offences triable by the Special Court. Since Section 44 (1)(b) states that the Special Court may take cognizance of the offence without the accused being committed to it for trial and that the Special Court is constituted only for the purpose of holding trial, the Magistrate must commit the case to the Special Court. This procedure being not followed, the entire proceeding vitiates. (ii) The case instituted against the petitioners' is in violation of Article 20(1) of the Constitution of India and Section 300 of Cr.P.C. For the same set of facts, the petitioners were prosecuted by the CBI for the offences under Sections 409, 420, 468, 471 and 477 of IPC and Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or give statement. This is a statutory right conferred on the authorized authority, any information that he collects during investigation cannot be brought within the purview of Article 20(3). He referred to a judgment of High Court of Delhi in the case of Vakamulla Chandrashekar Vs. Enforcement Directorate and another [W.P.(Crl.) 852/2017]. (iv) The writ petition is devoid of merits. It requires to be set aside. 6. Considering the rival contentions, in regard to first point that Sri. M.S. Shyam Sundar advanced, it is to be stated that the question of committing a case to the Special Court does not arise, and Section 44 of PMLA does not contemplate that procedure. Section 44(1) (b) is so clear that cognizance of offence under Section 3 can be taken only upon a complaint made by an authorized authority. 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nched 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. 8. As regards the third ground about bar envisaged under Article 20(2) of the Constitution of India, I do not think that the judgment of the Supreme Court in Kathi Kalu Oghad (Supra) is of any help to him. Although the 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. But the conclusions of the Supreme Court are found in Para 16. They are: 16. In view of these considerations, we have come to the following conclusions:- (1) An accused person cannot be said to have been compelled to be a witness against himself simply because he ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vs. Enforcement Directorate and another Paragraphs 48 and 49 are extracted here. 48. The submission of the petitioner that his fundamental right under Article 20(3) is violated-since he has been summoned u/s. 50 to give evidence and to produce records in the course of investigation, without knowing whether he would eventually be cited as a witness or arrayed as an accused, if at all, has no merit. Article 20(3) of the Constitution, which provides that No person accused of an offence shall be compelled to be a witness against himself would come into play only, if and when, the petitioner is named as an accused in the complaint to be filed before the Special Court by an authority authorized in this behalf under the Act. That stage has not arrived. Therefore, there is no question of infringement of Article 20(3) of a person who may have been summoned under Section 50(2) of the PMLA as a part of the investigative process. 49. We find merit in the submission of learned counsel for the respondent that during the stage of investigation, it would be premature on the part of the respondent to label the summoned person (u/s. 50 (2) of the Act) either as a witness, or as an accused ..... X X X X Extracts X X X X X X X X Extracts X X X X
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