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TMI Blog2025 (4) TMI 317X X X X Extracts X X X X X X X X Extracts X X X X ..... cretary in Department of Commerce and Industry, Chhattisgarh in May, 2023. The Petitioner is a well reputed individual having deep roots in the society and resides in Raipur along with his wife and two children. The Petitioner does not have any criminal antecedents. In the instant case, it is pertinent to note that at the time of passing the Impugned Order (i.e., on 05.10.2024) where cognizance of the offence of money laundering was taken, no sanction u/s 197(1) CrPC was obtained by the Respondent/ED for prosecution of the Petitioner herein, despite the Petitioner being a Public Servant at the time of the commission of the alleged offence and despite the mandatory requirement for obtaining such a sanction in terms of Section 197(1) CrPC read with Section 65 PMLA. Pertinently, even as on date, to the best of the Petitioner's knowledge, no sanction u/s 197(1) CrPC has been obtained by the Respondent/ED for prosecution of the Petitioner. Based upon a prosecution Complaint filed by the Income Tax Department bearing Ct. Case. No. 1183/2022 u/s 276(C)/277/278/278E IT Act r/w Sec. 120-B/191/199/200/204 IPC ("IT Complaint") the ED registered an ECIR bearing No. ECIR/RPZO/11/2022 ("ECIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces. Copy of ECIR bearing No. 04/2024 dated 11.04.2024 is annexed herewith as Annexure A/6. On 20.04.2024, the Petitioner was arrested in the utmost mala fide and illegal manner by the Respondent/ED after the Petitioner had appeared before the ACB, Raipur pursuant to summons in relation to the Chhattisgarh FIR. 3. Learned counsel for the petitioner would contend that:- (a) at the time of passing the order on 05.10.2024 where cognizance of the offence of money laundering was taken, no sanction u/s 197(1) CrPC or u/s 218(1) BNSS was obtained by the Respondent/ED for prosecution of the Petitioner, despite the fact that the petitioner was a Public Servant at the time of the commission of the alleged offence and despite the mandatory requirement for obtaining such a sanction in terms of Section 197(1) CrPC read with Section 65 PMLA. He would next contend that even as on date, no sanction u/s 218 BNSS has been obtained by the Respondent/ED for prosecution of the Petitioner. He would next contend that Section 218(1) BNSS having been obtained by the Respondent/ED for prosecution of the Petitioner herein, despite the fact that the Petitioner was a public servant at the time the alleged c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was doing large scale corruption and misused his, position. Therefore, as per the allegations levelled by the Respondent/ED the Petitioner herein was a public servant removable from his office by or with the Government's sanction, and the alleged offence is alleged to have been committed while holding such public office and acting or purporting to act in the discharge of his duties as the then the Joint Secretary of the Department of Commerce and Industry. Further, Section 65 PMLA makes all provisions of the CrPC applicable to proceedings under the PMLA, including Section 197 CrPC. Thus, the protection under Section 197(1), CrPC extends to the Petitioner and the Ld. Special Judge erred in taking cognizance of the offence u/s 3 r/w Section 4 of the PMLA as against the Petitioner without the Respondent/ED having obtained previous sanction u/s 197(1), CrPC. (d) He would next contend that that Ld. Special Judge erroneously passed the Impugned Order thereby taking cognizance of the offence u/s 3 r/w Section 4, PMLA without any prior Sanction having been obtained by the Respondent/ED for prosecution of the alleged offence qua the Petitioner, being a Public Servant at the time of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. The Enforcement Directorate, Raipur in CRR No. 816 of 2018. And at that time, it was not a mandatory requirement to be complied in the cases of PMLA. It is further submitted that after the mandate of the Hon'ble Supreme Court in the case of Directorate of Enforcement Vs. Bibhu Prasad Acharya, 2024 SCC OnLine SC 3181, approval of the competent authority has been taken, and the same has been received to prosecute Anil Tuteja for the offence of money laundering under Section 3 read with Section 4 of the PMLA vide letter dated 14.02.2025 from the office of the Additional secretary, Chhattisgarh Government. The Order of Prosecution Sanction has been duly submitted before the Hon'ble Special Court on 18.02.2025 for making it a part of the record. 5. I have heard learned counsel for the parties and perused the documents. 6. The questions fall for consideration before this Court are (i) whether the offence is committed by a public servant?; (ii) whether petitioner's alleged act reasonably connect with the discharge of official duty? 7. The term public servant has been defined in Section 2 (28) of the Bharitya Nyay Sanhita, and it is an admitted fact that the petitioner was wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have carefully perused the provisions of the PMLA. We do not find that there is any provision therein which is inconsistent with the provisions of Section 197(1) of CrPC. Considering the object of Section 197(1) of the CrPC, its applicability cannot be excluded unless there is any provision in the PMLA which is inconsistent with Section 197(1). No such provision has been pointed out to us. Therefore, we hold that the provisions of Section 197(1) of CrPC are applicable to a complaint under Section 44(1)(b) of the PMLA. 18. Section 71 gives an overriding effect to the provisions of the PMLA notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Section 65 is a prior section which specifically makes the provisions of the CrPC applicable to PMLA, subject to the condition that only those provisions of the CrPC will apply which are not inconsistent with the provisions of the PMLA. Therefore, when a particular provision of CrPC applies to proceedings under the PMLA by virtue of Section 65 of the PMLA, Section 71 (1) cannot override the provision of CrPC which applies to the PMLA. Once we hold that in view of Section 65 of the PMLA, Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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