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TMI Blog2020 (12) TMI 1373X X X X Extracts X X X X X X X X Extracts X X X X ..... eing scheduled offences under the PMLA, the petitioner-ED registered an ECIR as against the respondent Nos. 3 to 5 under the PMLA and proceeded with its investigation - It appears that the petitioner-ED, on being informed by the respondent No.2 about the closure report, also filed a Protest Petition before the learned Magistrate and prayed that they be heard before any order could be passed on the closure report filed by the respondent No.1-State. It is thus evident that an informant/complainant is entitled to a notice before any orders are passed on the closure report by the Magistrate, whereas, an injured or in case of death, the relative of the deceased can be heard, even without notice i.e. in cases where the police file a closure report, or a `C summary report in respect of a complaint. Thus, the three categories of persons whose `locus has been recognized are the complainant, injured persons or the relatives/heirs of the deceased. The petitioner-ED is an independent investigating agency, empowered to investigate offences under the PMLA and FEMA and in the facts, cannot be termed as a victim or aggrieved/injured/interested person, having regard to the judicial pronouncements. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 2-Akbar Travels (India) Pvt. Ltd. filed a private complaint in the Court of the learned Metropolitan Magistrate at Ballard Pier, Mumbai, alleging offences punishable under Sections 120-B, 420, 467 and 471 of the Indian Penal Code (`IPC') as against the respondent No. 3-M/s. Jet Airways (India) Ltd. and its directors i.e. respondent No. 4-Naresh Goyal and respondent No. 5-Anita Goyal. According to the respondent No. 2, during the period 2018- 2019, they had done business of more than Rs. 900 Crores with respondent No. 3. It is alleged that as per the Contract Agreement, respondent No. 3 was liable to pay Rs. 21,31,08,000/- along with CGST to the respondent No. 2. According to the respondent No. 2, they had made an advance airticket booking of Rs. 23,87,44,511/- for respondent No. 3 and the same was also due from the said respondent. In addition, TDS, OPC (Optional Payment Charges), OC (Optional Charges) on advance booking of Rs. 87,15,525/- was also due from respondent No. 3. Thus, it is the respondent No. 2's case that a total of Rs. 46,05,68,036/- was to be paid by the respondent No. 3. As respondent No. 2 did not receive payments despite being promised, the respondent No. 2 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strate, Mumbai, vide order dated 19th September 2020, after observing that the petitioner had no locus standi to intervene, especially when the informant-complainant himself was appearing in the case. Being aggrieved by the said order, the petitioner filed a revision application before the learned Additional Sessions Judge, Mumbai being Criminal Revision Application No. 400 of 2020. The learned Additional Sessions Judge, Mumbai, vide order dated 15th October 2020 dismissed the revision application, on the ground of maintainability as well as on merits. Being aggrieved by the said orders, the petitioner has approached this Court by way of the aforesaid petition. 4 Learned ASG Mr. Anil Singh, appearing for the petitioner submitted that the Protest Petitions were recognized by the Apex Court in the case of Bhagwat Singh vs. Commissioner of Police & Anr (1985) 2 SCC 537. He submitted that no doubt, the informant/complainant is entitled to a notice and to be heard, nonetheless, the Apex Court has also recognized the right of an injured person/interested/aggrieved person to be heard. He submitted that the petitioner would fall in the category of the term `victim/interested person/aggri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt) Laws (Cal) 2000-9-68; Abhinandan Jha & Ors. vs. Dinesh Mishra (Supreme Court) Manu/SC/0054/1967; Ratanlal vs. Prahlad Jat & Ors. Manu/SC/1202/2017; A. R. Antulay vs. R. S. Nayak (Supreme Court) (1984) 2 SCC 500; Y. S. Jagan Mohan Reddy vs. Central Bureau of Investigation LAWS (SC)-2013-5-29; Gautam Kundu vs. Manoj Kumar LAWS (SC)-2015-12-46, Hasan Ali Khan vs. Union of India Bail Application No. 994/2011 dated 1.8.2011, P. Chidambaram vs. Directorate of Enforcement Appeal No. 1340/2019 dated 5.9.2019, Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur & Ors. vs. State of Gujarat & Anr. Appeal No. 1723/2017 dated 4.10.2017, in support of his submission. 6 Mr. Dubey, learned counsel for the respondent No.2/original complainant adopted the submissions advanced by the learned ASG Learned counsel relied on the judgment of the Apex Court in Nahar Singh Yadav & Anr. vs. Union of India & Ors. (2011) 1 SCC 307, in particular, para 19 of the said judgment to show that "a party interested" can be permitted to intervene in proceedings. He submitted that the petitioner-ED, being a responsible agency, must be permitted to intervene, as the economy of the country is affected. 7 Mr. Raja Thak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that as per the law laid down in the case of Bhagwat Singh (supra), only three categories of persons are permitted to intervene/can be heard i.e. (i) the complainant or informant is entitled to a notice; (ii) an injured is entitled to be heard; and (iii) an heir of the deceased can also be heard in a case. 9 Mr. Ponda submitted that the petitioner, by no stretch of imagination, would fall within the definition of the term `victim' and cannot be covered by Section 2(wa) of the Cr.P.C. He submitted that the petitioner- ED can neither be a victim nor an injured. In this context, learned senior counsel relied on the judgment of the Division Bench of this Court in Mahendrasinh Jorubha Zala vs. Central Bureau of Investigation & Ors. Criminal Appeal No. 970/2019 dated 5.8.2019 , wherein, the definition of the term `victim' was considered. Learned senior counsel submitted that reliance placed by the learned ASG on Abhinandan Jha (supra), in particular, para 19, wherein there is a reference to Section 190(1)(c) Cr.P.C, has been corrected and noted in a subsequent judgment i.e. in the case of H.S. Bains vs. State (para 7) (1980) 4 SCC 631, wherein, it is stated that the reference to Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der under Section 156(3), pursuant to which, the M.R.A Marg Police Station registered an FIR being C.R. No. 66 of 2020 as against respondent Nos. 3 to 5 for the alleged offences punishable under Sections 406, 420, 465, 467, 468, 471 and 120-B of the IPC. The said offences being scheduled offences under the PMLA, the petitioner-ED registered an ECIR as against the respondent Nos. 3 to 5 under the PMLA and proceeded with its investigation. In the meantime, the respondent- State, after investigation, filed its closure report (in C.R. No. 66 of 2020), in the Court of the learned Magistrate. It is not in dispute that pursuant to the notice issued by the learned Magistrate, the respondent No.2/complainant-Akbar Travels (India) Pvt. Ltd. filed a Protest Petition before the learned Magistrate. It appears that the petitioner-ED, on being informed by the respondent No.2 about the closure report, also filed a Protest Petition before the learned Magistrate and prayed that they be heard before any order could be passed on the closure report filed by the respondent No.1-State. As noted above, the learned Magistrate rejected the said Protest Petition filed by the petitioner-ED, which was challeng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erent when we consider the question whether the injured person or a relative of the deceased, who is not the informant, is entitled to notice when the report comes up for consideration by the Magistrate. We cannot spell out either from the provisions of the Code of Criminal procedure, 1973 or from the principles of natural justice, any obligation on the Magistrate to issue notice to the injured person or to a relative of the deceased for providing such person an opportunity to be heard at the time of consideration of the report, unless such person is the informant who has lodged the First Information Report. But even if such person is not entitled to notice from the Magistrate, he can appear before the Magistrate and make his submissions when the report is considered by the Magistrate for the purpose of deciding what action he should take on the report. The injured person or any relative of the deceased, though not entitled to notice from the Magistrate, has locus to appear before the Magistrate at the time of consideration of the report, if he otherwise comes to know that the report is going to be considered by the Magistrate and if he wants to make his submissions in regard to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncluded that victim means the actual sufferer of offence (receiver of harm caused by the alleged offence) and no person other than actual receiver of harm can be treated as victim of offence, so as to provide him/ her a right to prefer appeal under the proviso of Section 372. In absence of the direct sufferer or in a case where the direct sufferer suffers a disability his or her legal heir or guardian would qualify as a victim. In the matter of Uday Bhan (supra) following are the observations of the Madhya Pradesh High Court found in paragraphs 7 and 8. They read thus : "7 In view of the above, it is evident that "victim" who is the ultimate sufferer in the commission of a crime has been given recognition as an aggrieved party by introducing the abovesaid amendment in Cr.P.C. There is no manner of doubt that right from the occurrence of the incident till the decision of trial, appeal or revision, till the highest court of law, the "victim" is as much interested in the decision as is the accused or the State. Infact, the "victim" on account of being the injured person and the sufferer, deserves to be recognized as the most aggrieved party in a crime. It is a happy state of af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... injured/interested person, thus entitling them to be heard before the Magistrate decides whether the closure report ought to be accepted or not. The respondent No. 1-State of Maharashtra is the investigating agency in the present case, who has filed the closure report in a case instituted by the respondent No. 2-Akbar Travels (Idia) Pvt. Ltd. The petitioner-ED is not a supervisory authority over the respondent No. 1- State, who has investigated the case. Take a hypothetical example, a converse situation. If in a given case, any other investigating agency feels that the Enforcement Directorate has not investigated a case properly, can the said investigating agency intervene in the investigation carried out by the Enforcement Directorate? Can they be permitted to do so? The obvious answer is `NO'. Each investigating agency is expected to investigate the case before it, fairly on the basis of the material gathered by them during investigation and thereafter submit its report. No investigating agency can claim supervisory jurisdiction over the other in the matter of investigation. In the present case, the Magistrate is yet to pass orders on the closure report. It is for the Magistrate, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which reliance is placed by the learned ASG is the minority view of the Judges, whereas, the majority judgment had not adhered to the same and the same is evident from para 36 of the said judgment. Infact, this Court in the case of Harsh Mandar (supra) has categorically taken a view after referring to Sheonandan Paswan (supra) that the said judgment is restricted in its applicability to Section 321 Cr.P.C. It is not in dispute that the said judgment i.e. Harsh Mandar's case (supra) has been upheld by the Apex Court. As far as the other judgments relied upon by the learned ASG in support of his submission to show that the petitioner has locus, pertain to cases where the wife or the brother's right has been recognized. Some judgments pertain/relate to actual de facto complainant who were the aggrieved persons. Thus, the said cases are clearly distinguishable and reliance on the same is clearly misplaced. 22 Similarly, reliance paced on the judgment of Abhinandan Jha (supra), in particular para 19, where there is a reference to Section 190(1) (c) Cr.P.C, to show that petitioner has 'locus' to intervene is also misplaced, inasmuch as, the Apex Court in H.S. Bains (supra) has noted tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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