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TMI Blog2024 (11) TMI 1350X X X X Extracts X X X X X X X X Extracts X X X X ..... said to be taken only when the Court applies his mind to proceed further under Section 200 (now Section 223 of the BNSS) or under Section 204 of Chapter XVII of the CrPC. Under the PMLA, a Special Court can only take cognizance of an offence under Section 3 of the PMLA, punishable under Section 4 of the PMLA, based on a complaint filed by the ED. It was held that while Section 46 of the PMLA stipulates that the provisions of the CrPC apply to proceedings before the Special Court as well since it functions like a Sessions Court as the phrase save as otherwise provided in PMLA allows exceptions - in the absence of any overriding provision in the PMLA, Sections 200 to 204 of the CrPC (now Section 223 to 227 of the BNSS) duly applies to complaints filed under the PMLA. This means that the Special Court must assess if a prima facie case exists for an offence under Section 3 of the PMLA. If no such case is found, the Court can dismiss the complaint under Section 203 of the CrPC, however, if a prima facie case is established, the Court may proceed under Section 204 of the CrPC. As per the settled position of law, cognizance under Section 44 (1) (b) of the PMLA is based on the prosecution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R. JUSTICE CHANDRA DHARI SINGH For the Petitioner Through: Mr. Naveen Malhotra and Mr. Ritvik Malhotra, Advocates For the Respondent Through: Mr. Anupam S Sharma, Special Counsel, ED along with Mr. Prakarsh Airan, Ms. Harpreet Kalsi, Mr. Vashisht Rao, Advocates with Mr. Syamantak Modgil, AD (Through VC) ORDER CHANDRA DHARI SINGH, J (Oral) 1. The present petition has been filed under Section 482 of the Code of Criminal Procedure, 1993 (hereinafter CrPC ) (now Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023) has been filed on behalf of the petitioner seeking the following relief: a. That This Hon ble court may be pleased to set aside the Order dated 07.04.2022 passed by the court of Ms. Kiran Gupta Asj-03 Northwest district Rohini Courts Delhi, as well as pass necessary directions for returning the file to the respondents as complaint has been filed without completing/concluding the investigation and also pass necessary directions for discharge of the accused no. 3 in cc no. 01/15 dated 15.12.2015 title Assistant Director, Enforcement Directorate vs. Kamal Kalra and Ors. for the offences under section 3 4 of PMLA and section 71 of the act ibid. 2. The brief facts that led ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e PMLA. Pursuant to the same, second supplementary complaint was filed against various persons on 23rd April, 2016. It is stated that a third supplementary complaint was also filed against various persons on 7th April, 2018. 8. Further supplementary complaint was filed against one Mr. Rakesh Bansal and others on 17th July, 2018 before the learned Special Judge wherein it was submitted by the ED that given the quantum of money involved in the present case, fraud and spectrum of the scam, which has international ramifications, further investigation to trace the entire proceeds of crime are going on and for that purpose, a letter of request in the form of letter of rogatoreis were sent to Hong Kong and Dubai for obtaining documentary evidences in order to trace out rest of the beneficiaries involved in this fraud and in view thereof, it was stated that the investigation is continuing. 9. In the meanwhile, the petitioner filed an application seeking dropping of the proceedings against him pending before the learned Special Judge as no cognizance has been taken by the Court concerned. Vide order dated 7th April, 2022, the said application was dismissed by the learned Special Judge stati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dge has been filed without completing the investigation. Further, on a perusal of the cited judgments and facts of the present case, it is conspicuous that there is no order of cognizance in the present case and consequently, no trial can proceed thereto as it is evident that the impugned order of learned Special Judge is bad in law and liable to be set aside. 17. It is submitted that the ED has not concluded the investigation yet and the same is still in progress, therefore, the complaint filed by the ED is in violation of the statutory provisions enshrined under Section 44 (1) (b) of the PMLA. 18. It is submitted that upon a plain reading of Section 44 (1) (b) of the PMLA, it s clear that a complaint is a culmination of investigation, and as such the first complaint filed before the learned Trial Court is unlawful in terms of Section 44 (1) (b) of the PMLA, as the same was filed during the course of investigation. The Explanation II of Section 44 (1) (b) of the PMLA was inserted by an amendment in the year 2019 which allows for filing of supplementary complaints and it does not have any retrospective effect, therefore, the same cannot be applied to the complaint in question. 19. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of CrPC as the same is filed by the ED after thorough investigation, and the Court concerned can peruse all the evidence at the time of taking cognizance of the offence alleged under the PMLA. 26. It is further submitted that unlike a private complaint, where reasons for taking cognizance have to be recorded, the Special Judge does not need to do that in the complaint made by the ED under the PMLA. Moreover, this process is pari materia to Section 190 (1) (b) of the CrPC, which allows a Court to take cognizance based on a police report after their investigation. 27. It is submitted that as per the Explanation-II of Section 44 (1) (b) of the PMLA, an investigating agency has a statutory right to conduct further investigation. Furthermore, the said Explanation is merely clarificatory in nature, therefore, it applies retrospectively as held by the Hon ble Supreme Court. 28. It is submitted that in accordance with the established legal precedents in State of Maharashtra v. Sharadchandra Vinayak Dongre, (1995) 1 SCC 42, Narendra Kumar Amin v. CBI, (2015) 3 SCC 417 and Vinay Choudhary v. State, 1989 SCC OnLine Del 87 , a police report under Section 173 (2) of the CrPC is filed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the amendment brought in the year 2019 to Section 44 (1) (b) allowing supplementary complaints is not retrospective and the same does not permit filing the initial complaint prematurely. 34. In rival submissions, it has been contended on behalf of the ED that cognizance of the offence was taken by the learned Trial Court on 11th December, 2015, when the complaint was filed, which can be inferred from the Court s actions to register and proceed with the case without needing a formal order. Therefore, the instant petition is nothing but a gross misuse of the process of law and the same may be dismissed. 35. At this stage, it becomes relevant to discuss the impugned order dated 7th April, 2022, relevant portion of which is as under: ..Vide present application, the applicants are seeking dropping of proceedings against them on the ground that no cognizance has been taken in the present matter till date. The expression 'cognizance' has not been defined in the Court. It has no esoteric or mystic significance in criminal law. It merely means ' become aware of ' and when used with reference to a Court or a Judge, it connotes ' to take notice of judicially'. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cept of cognizance is not defined in law and holds no mystic or esoteric meaning in criminal proceedings. Instead, it denotes the moment a Court takes judicial notice of an offence to initiate proceedings against an alleged offender. Established legal principles assert that cognizance does not necessitate formal or specific action; rather, it is taken when a Court applies its mind to the alleged commission of an offence, particularly when the complaint is reviewed to determine if it discloses the commission of an offence. 38. It was observed by the learned Court that in the present case, the complaint was filed on 11th December, 2015, after which the Court registered it, supplied copies of the complaint and supporting documents to the defense counsel of the accused and subsequently took up the matter on multiple occasions. 39. Further, when supplementary complaints were filed against accused Mr. Rajiv Wadhwa on 31st March, 2016, and Rakesh Bansal on 17thAugust, 2018, the Court acknowledged that cognizance of the offence had already been taken. Consequently, the Court found no merit in the applicant s contention that cognizance had not been taken and dismissed the application statin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, enquiry or trial under this Act, shall not be dependent upon any orders passed in respect of the scheduled offence, and the trial of both sets of offences by the same court shall not be construed as joint trial; (ii) the complaint shall be deemed to include any subsequent complaint in respect of further investigation that may be conducted to bring any further evidence, oral or documentary, against any accused person involved in respect of the offence, for which complaint has already been filed, whether named in the original complaint or not.] (2) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under section 439 of the Code of Criminal Procedure, 1973 (2 of 1974) and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to Magistrate in that section includes also a reference to a Special Court designated under section 43 42. The issues put forth before this Court lies in the contention of the petitioner that his name is neither mentioned in the FIR, nor in the initial complaint filed by the ED. Furthermore, till date no cognizance of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he offence under Section 3, punishable under Section 4 of the PMLA, can be taken by the Special Court is upon a complaint filed by the Authority authorized on this behalf. Section 46 of PMLA provides that the provisions of the Cr.PC (including the provisions as to bails or bonds) shall apply to proceedings before a Special Court and for the purposes of the Cr.PC provisions, the Special Court shall be deemed to be a Court of Sessions. However, sub-section (1) of Section 46 starts with the words save as otherwise provided in this Act. Considering the provisions of Section 46 (1) of the PMLA, save as otherwise provided in the PMLA, the provisions of the Code of Criminal Procedure, 1973 (for short, Cr. PC) shall apply to the proceedings before a Special Court. Therefore, once a complaint is filed before the Special Court, the provisions of Sections 200 to 204 of the Cr.PC will apply to the Complaint. There is no provision in the PMLA which overrides the provisions of Sections 200 to Sections 204 of Cr.PC. Hence, the Special Court will have to apply its mind to the question of whether a prima facie case of a commission of an offence under Section 3 of the PMLA is made out in a complaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the complaint to be checked and registered following which it was directed by the learned Court that copies of the complaint be supplied to the concerned defense counsel and the said act depicts taking cognizance of the offence under the PMLA. 54. As per the settled position of law, cognizance under Section 44 (1) (b) of the PMLA is based on the prosecution complaint filed by the ED pursuant to an investigation and the said complaint duly incorporates the gist of the offences and the manner in which the offences were committed by the accused persons, accompanied with the evidence collected during the statement along with the statement of witnesses and accused. 55. At this stage, this Court deems it appropriate to refer to the judgment of the Hon ble Supreme Court in Pradeep S. Wodeyar v. State of Karnataka, (2021) 19 SCC 62 , wherein, it was held that provisions of CrPC would apply to the procedure undertaken before a Special Court enacted under a special statute unless the said special statute explicitly prohibits the application of provisions of the CrPC. The relevant part of the said judgment reads as under: 58. .Moreover, bearing in mind the objective behind prescribing that c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scloses the role of the petitioner that he had allegedly set up numerous fake companies to send foreign currency abroad under the pretext of advance import payments, facilitating fraudulent export-import practices which resulted in huge financial loss for the National Exchequer. The petitioner s conduct allegedly involved concealing, acquiring, and using proceeds of crime while projecting them as untainted property, constituting the offence of money laundering under Section 3 and punishable under Section 4 of the PMLA. 59. As per the contents of the impugned order, it was observed by the learned Court below that when supplementary complaints were filed against accused Rajiv Wadhwa on 31st March, 2016, and Rakesh Bansal on 17th August, 2018, the Court acknowledged that cognizance of the offence had already been taken. In this regard, this Court is inclined to upheld that observations of the learned Court below as the same are in accordance with the law and specifically denotes that cognizance of the offence/complaint has been duly taken. 60. Therefore, as the Court concerned registered the complaint upon prima facie satisfaction that there exist sufficient grounds to proceed under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings in Special Courts under the PMLA, making the Special Court equivalent to a Court of Sessions. Unless stated otherwise in the PMLA, CrPC provisions, including those on bail and preliminary procedures (Sections 200 to 204 of the CrPC), apply to PMLA cases. 67. This interpretation is further supported from the Explanation II to sub section (1) of Section 44 of the PMLA, which provides that the complaint would include any subsequent complaint in respect of further investigation that may be conducted to bring any further evidence, oral or documentary against any accused person involved in respect of the offence for which complaint has already been filed, whether named in the original complaint or not. 68. Thus, there is no doubt that a supplementary complaint can certainly be filed by the respondent ED against an accused, who is already facing prosecution for offence under Section 3 of the PMLA before the Special Judge. 69. Based on the above legal analysis, it is evident that when an investigating agency is authorized to conduct the investigation and carries out additional investigation to collect further evidence, the concerned agency has the right to submit a supplementar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt: For modern purposes a declaratory Act may be defined as an Act to remove doubts existing as to the common law, or the meaning or effect of any statute. Such acts are usually held to be retrospective. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law, retrospective operation is generally intended. The language shall be deemed always to have meant or shall be deemed never to have included is declaratory, and is in plain terms retrospective. In the absence of clear words indicating that the amending Act is declaratory, it would not be so construed when the amended provision was clear and unambiguous. An amending Act may be purely clarificatory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect and, therefore, if the principal Act was existing law when the Constitution came into force, the amending Act also will be part of the existing law. (emphasis supplied) 74. Thus, from the aforesaid judgment it is evident ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the Explanation II introduced in the year 2019 by way of amendment is not applicable herein is rejected in view of the aforesaid terms. 80. At this juncture, it is pertinent to mention here that since this Court has rejected the case of the petitioner, there arises no question to discharge the petitioner at this stage, and therefore, this Court shall not deal with the same hereon and the petitioner is at liberty to approach the appropriate forum in accordance with the law. 81. Therefore, in view of the discussions made hereinabove, this Court does not find any force in the arguments of the petitioner that the cognizance has been taken illegally as the complaint was filed pending investigation due to filing of subsequent complaints. 82. The aforesaid discussions on facts as well as on law clearly states that there is no illegality committed by the learned Court below while passing the impugned order and the propositions put forth by the petitioner is rejected. 83. In view of the above facts, circumstances, and reasoning coupled with the established legal proposition, it is held that there is no illegality in the order dated 7th April, 2022 passed by the learned ASJ-03, North West ..... X X X X Extracts X X X X X X X X Extracts X X X X
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