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TMI Blog2023 (9) TMI 963X X X X Extracts X X X X X X X X Extracts X X X X ..... n 4 of the Fugitive Economic Offenders Act 2018 (hereinafter referred to as the "FEO Act"). The learned Special Judge directed that the matter would proceed further for hearing of the arguments of learned counsel for the respondent before him (i.e the Applicant herein) and thereafter for rejoinder by learned SPP for the Applicant before him (the Respondent No. 2 in the present application before this Court) on the main application under Section 4 of FEO Act. 3. The brief background of the case is mentioned in the present application as follows: i. An FIR No. RC02(E)/2018 was registered with BS & FC (CBI) Mumbai on 15.2.2018 under section 120-B read with 420 of IPC and under section 13 (2) read with 13(1)(d) of the Prevention of Corruption Act 1988. Pursuant to the FIR, the charge sheet was filed by the CBI before the learned Special CBI Judge on 15.5.2018. The learned judge took cognizance against the Applicant and the other accused on 22.5.2018. It was registered as Special CBI Case No. 38/2018 and is pending before the Special Judge for CBI, Sessions Court, Greater Bombay. In pursuance to the registration of the FIR by the CBI, The Enforcement Directorate (for short, 'ED') reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments, learned counsel referred to paragraph- 9.5 of the said application, wherein it was mentioned that the Applicant had left the country under suspicious circumstances in the first week of January 2018, whereas the FIR was filed in February 2018 against him and the Applicant could not have imagined about the future registration of the FIR. He also disputed the averment that the Applicant was the prime conspirator and that he was the mastermind behind the scam. He submitted that all these averments were required to be supported by a proper affidavit. He submitted that this application is decided under the procedure mentioned in the FEO Act, which mainly depends on the averments in the application and therefore filing of this application in proper form was very important. Therefore, it was all the more necessary that the application was supported by an affidavit adhering to the necessary ingredients of section 297 of Cr.P.C., which is mandatory in nature as it uses the word 'shall'. He submitted that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. The other methods of performance are necessarily forbidden. In support ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce was made to paragraphs-3 to 5 of Chapter VII of the Criminal Manual. It was observed in paragraph-47 of the said judgment that filing of an affidavit is not an empty formality. The mandate is that the affidavit should clearly state what portion of the statement is made on the declarant's knowledge and what portion of statement is made on his information and belief. When a particular portion is not within the declarant's own knowledge, but is based on the information obtained from others or is based on documents, the declarant should disclose the source of the information or his belief. It was further observed that, in that case the verification clause did not disclose that the knowledge of that particular witness was based on records and he had not disclosed the source of information as required in paragraph-5(3) of Chapter VII of Criminal Manual. Shri Aggarwal relied on the judgment of a Single Judge of the High Court of Punjab and Haryana in the case of Santokh Singh and Sokha Vs. The State of Punjab Decided on 4.12.2002 in Criminal Revision No. 883/1989 (High Court of Punjab & Haryana) which has taken a similar view. vi. Shri Aggarwal then criticised the impugned order. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns, Shri Venegavkar made the following submissions: i. The FEO Act was enacted for a specific purpose. It was mainly deterrent in nature and was not punitive. He submitted that the proceedings can be dropped if the Applicant appears before the court. Section 4 of FEO Act lays down the form of application which is elaborated in Rule 3 of the FEO Rules. Section 11 prescribes the procedure. He submitted that if there is no procedure prescribed in the Special Act at all, then only the provisions of Cr.P.C. would apply. But when there is a special procedure prescribed under the Special Act, the procedure under Cr.P.C. cannot be looked at. The special procedure and in particular Rule 3 of the FEO Rules are complied with. His most important submission was that under the FEO Act or Rules, there was no provision or requirement for filing an affidavit at all and therefore all the submissions made by learned counsel for the Applicant had no relevance. He submitted that Jaimin's case (supra) actually supports the Respondent No. 2's case. In that case, it was observed that the verification clause did not disclose that knowledge of the concerned witness was based on records, whereas in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, or (c) any notary appointed under the Notaries Act, 1952 (53 of 1952). (2) Affidavits shall be confined to, and shall state separately, such facts as the deponent is able to prove from his own knowledge and such facts as he has reasonable ground to believe to be true, and in the latter case, the deponent shall clearly state the grounds of such belief. (3) The Court may order any scandalous and irrelevant matter in the affidavit to be struck out or amended." ====== Clauses 4 & 5 of Chapter VII of the Criminal Manual : "4. Unless it is otherwise provided, an affidavit may be made by any person having knowledge of the facts deposed to. 5. (1) Every affidavit should clearly specify what portion of the statement is made on the declarant's knowledge and what portion of the statement is made on his information or belief. (2) When a particular portion is not within the declarant's own knowledge but it is stated from information obtained from others, the declarant must use the expression "I am informed" and if it is made on belief should add "I verily believe it to be true." He must also state the source or ground of the information or belief, and give the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... give a period of one week to file a reply to the application under section 4. (3) Where any individual to whom notice has been issued under sub-section (1) of section 10 fails to enter appearance either in person or through counsel, and the Special Court is satisfied- (a) that service of notice has been effected on such party; or (b) that notice could not be served in spite of best efforts because such individual has evaded service of notice, it may, after recording reasons in writing, proceed to hear the application. (4) The Special Court may also give any person to whom notice has been issued under sub-section (2) of section 10 a period of one week to file a reply to the application under section 4. ====== "12. Declaration of fugitive economic offender. (1) After hearing the application under section 4, if the Special Court is satisfied that an individual is a fugitive economic offender, it may, by an order, declare the individual as a fugitive economic offender for reasons to be recorded in writing. (2) On a declaration under sub-section (1), the Special Court may order that any of the following properties stand confiscated to the Central Government- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proof for establishing- (a) that an individual is a fugitive economic offender; or (b) that a property is the proceeds of crime or any other property in which the individual alleged to be a fugitive economic offender has an interest, shall be on the Director or the person authorised by the Director to file the application under section 4. (2) Notwithstanding anything contained in any other law for the time being in force, where any person referred to in sub-section (2) of section 10 claims that any interest in any property was acquired bona fide and without knowledge of the fact that, such property constitutes proceeds of crime, the burden of proving such fact shall lie upon him. (3) The standard of proof applicable to the determination of facts by the Special Court under this Act shall be preponderance of probabilities. ===== 21. Overriding effect. The provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force. ===== 22. Application of other laws not barred. The provisions of this Act shall be in addition to and not in derogation of any other law for the time being in for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffirm and state that whatever is stated in the preceding paragraphs of the above application is true and correct to the best of my knowledge derived from record." The Deputy Director is very specific about his knowledge and it is mentioned in the verification that whatever was stated in the said application was true and correct to the best of his knowledge derived from the records. Section 297 of Cr.P.C. mentions that the deponent making the affidavit shall separately state such facts as he was able to prove from his own knowledge and such facts as he has reasonable ground to believe to be true, and in the case of his belief, he has to state the grounds of such belief. In the present case, the verification mentions that the application is filed to the best of the deponent's knowledge derived from the records. He has nowhere stated that he was filing the application based on his own knowledge, but it was based on his knowledge derived from the records. Therefore, there cannot be any infirmity in this type of verification wherein the application is filed based on the records which the deponent had perused and he believed it to be true to the best of his knowledge. This also suffici ..... X X X X Extracts X X X X X X X X Extracts X X X X
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