Hon'ble Dinesh Kumar Singh,J.
(Pronounced by Hon'ble Dinesh Kumar Singh, J.)
1. The present petition under Section 482 Criminal Procedure Code (hereinafter referred to as ''Cr.P.C.') has been filed by the applicant to quash the complaint dated 27th March, 2015 as well as the summoning order dated 30th April, 2015 issued by the Court of Sessions Judge (Special Court) under the Prevention of Money Laundering Act, 2002 (hereinafter referred to as ''PML Act, 2002').
2. As it comes out from the record, initially a first information report at Case Crime No.675 of 2011, under Sections 420 read with Section 120-B I.P.C. and 7/13 Prevention of Corruption Act, 1988 (hereinafter referred to as ''PC Act') was registered at Police Station Akbarpur, District Ramabai Nagar against the present accused-applicant and others. The accused-applicant is alleged to be a member of an organized gang indulged in manipulating results of ''Teacher Eligibility Test' (hereinafter referred to ''TET ') Examination-2011 and for that purpose they had collected huge sum of money from the candidates from several districts.
3. During the investigation, one of the accused, Manish Kumar Chaturvedi took the name of the applicant and on that basis the applicant's name was added in the array of accused. Rupees 4,00,250/- was recovered from the possession of the applicant.
4. The police after completing the investigation has submitted charge-sheet against the applicant. The applicant was released on bail by the Supreme Court in Case Crime No. 675 of 2011 lodged at Police Station Akbarpur, District Ramabai Nagar (Kanpur Dehat).
5. From all accused cumulative money recovered was Rs.1,13,95,300/-.
6. The applicant in his statement recorded on 15th May, 2013 under Section 50 of PML Act, 2002 stated that his monthly income was Rs.6,500.00 to 10,500.00. However, he could not explain satisfactorily the source of money recovered from his possession.
7. On 27th March, 2015, the Enforcement Directorate filed a complaint against ten accused under Section 45 of PML Act, 2002 for the offences under Section 3, punishable under Section 4 of PML Act, 2002.
8. On 31st March, 2014, Joint Director, Directorate of Enforcement, Lucknow Zonal Office, Lucknow vide Order No.04/2014 provisionally attached the proceeds of crime of i.e. a sum of Rs.1,13,95,300/- seized from accused Shri Sanjay Mohan and others under Section 51 of PML Act, 2002. Thereafter, on 29th August, 2014 the provisional attachment order No. 4/2014 was confirmed. Against the said order, the applicant has preferred an appeal, which is pending. Learned Sessions Court (Special Court) has taken cognizance on the aforesaid complaint and issued summons to the accused, including the applicant herein vide impugned order dated 30th April, 2015.
9. Heard Shri Satish Chandra Sitapuri, learned counsel appearing for the applicant, and Shri Shiv P. Shukla, learned counsel appearing for the respondents-Union of India.
10. On behalf of the applicant, it has been submitted that the impugned summoning order dated 30th April, 2015 is a non-speaking order and the learned Special Court has not considered and discussed the evidence against the applicant while issuing the process and summoning him to face trial. It has been further submitted that the complaint under PML Act, 2002 has to be dealt with as provided under Chapter XIV Cr.P.C. and the learned Special Court without following the due process of law i.e. without recording statements under Sections 200 and 202 Cr.P.C. has proceeded to issue process, summoning the applicant to face the trial under the PML Act, 2002. It has been further submitted that such a procedure is illegal and, therefore, the impugned order is vitiated and is liable to be struck down. Further submission is that the learned Sessions Court (Special Court) has taken cognizance on the aforesaid complaint and issued summons to the accused, including the applicant herein vide impugned order dated 30th April, 2015 without discussing the material against the applicant.
11. Learned counsel for the applicant in support of said submissions has place reliance on a judgment of the Supreme Court in Mehmood Ul Rehman Versus Khazir Mohammad Tunda and others (2015) 12 SCC 420. Paragraph-22 of said judgment is extracted hereinbelow:-
"22. The steps taken by the Magistrate under Section 190(1)(a) of CrPC followed by Section 204 of CrPC should reflect that the Magistrate has applied his mind to the facts and the statements and he is satisfied that there is ground for proceeding further in the matter by asking the person against whom the violation of law is alleged, to appear before the court. The satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence, and when considered along with the statements recorded, would, prima facie, make the accused answerable before the court. No doubt, no formal order or a speaking order is required to be passed at that stage. The Code of Criminal Procedure requires speaking order to be passed under Section 203 of CrPC when the complaint is dismissed and that too the reasons need to be stated only briefly. In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202 of CrPC, if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204 of CrPC, by issuing process for appearance. Application of mind is best demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections 190/204 of CrPC, the High Court" under Section 482 of CrPC is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court. To be called to appear before criminal court as an accused is serious matter affecting one's dignity, self respect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment."
12. Learned counsel for the applicant has also placed reliance on the judgment of the Supreme Court in State of Karnataka and another Versus Pastor P. Raju, (2006) 6 SCC 728. Learned counsel for the applicant has further submitted that taking cognizance of an offence and issuing process are two different stages and the Magistrate has to necessarily consider the material placed before it to proceed against an offender against whom prima facie case is made out on the basis of complaint on which the cognizance has been taken.
13. Paragraph-13 of the judgment in State of Karnataka and another Versus Pastor P. Raju (supra) is extracted hereinbelow:-
"13. It is necessary to mention here that taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the Court decides to proceed against the offenders against whom a prima facie case is made out."
14. Learned counsel for the applicant has also placed reliance on the judgment of this Court in Akash Garg Versus State of U.P. and others, 2012 (1) JIC 18 (All) to contend that since the summoning order does not disclose the infringing material against the applicant inasmuch as nothing has been discussed in the impugned order, it is evident that the learned Sessions Court did not apply its mind to the facts contained in the complaint and the material in support thereof. The impugend order has been passed without application of mind and, therefore, it is liable to be set-aside. In support of aforesaid contention, paragraph-15 of Akash Garg Versus State of U.P. and others (supra) has been relied by the learned counsel for the applicant, which is extracted hereinbelow:-
"15. A perusal of the aforesaid order reveals that the learned Magistrate has nowhere mentioned in the order that he had perused the charge sheet and the materials filed in support thereof nor he disclosed the fact that the materials were sufficient to proceed with the case. The Magistrate specified in the order that he received charge sheet against the petitioner and took cognizance and further directed registration of the case and issue of the process to the accused. The manner in which the learned Magistrate has passed the order cannot be said that he had applied his mind to the facts contained in the police report and the materials filed in support thereof, therefore, the aforesaid order can be described as an order ?taking of cognizance? of the offences disclosed in the charge sheet against the petitioner, therefore, the order dated 03.06.2011 cannot be upheld."
15. On the other, learned counsel for the respondents has submitted that PML Act, 2002 is a complete Code in itself. The powers of Special Court for trying offences under the PML Act, 2002 by the Special Court have been specifically provided under the PML Act, 2002 itself. It has been further submitted that Sections 44, 45 and 46 of the PML Act, 2002 provide the mode and manner in which the cognizance of an offence is to be taken by the learned Special Court. It has been further submitted that the provisions of Chapter XIV Cr.P.C. have no application while taking cognizance and summoning the accused for the offence under the PML Act.
16. We have considered the arguments advanced on behalf of the parties.
17. Sections 44, 45 and 46 of PML Act read as under:-
"44. Offences triable by Special Courts.--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-
(a) the offence punishable under section 4 shall be triable only by the Special Court constituted for the area in which the offence has been committed: Provided that the Special Court, trying a scheduled offence before the commencement of this Act, shall continue to try such scheduled offence; or
(b) a Special Court may, 2[***] upon a complaint made by an authority authorised in this behalf under this Act take cognizance of the offence for which the accused is committed to it for trial.
(c) if the court which has taken cognizance of the scheduled offence is other than the Special Court which has taken cognizance of the complaint of the offence of money-laundering under sub-clause(b), it shall, on an application by the authority authorized to file a complaint under this Act, commit the case relating to the scheduled offence to the Special Court and the Speical Court shall, on receipt of such case proceed to deal with it from the stage at which it is committed.
(d) a Special Court while trying the scheduled offence or the offence of money-laundering shall hold trial in accordance with the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), as it applies to a trial before a Court of Session.
(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.
45. Offences to be cognizable and non-bailable.-- (1) [Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule shall be released on bail or on his own bond unless--]
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and
(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail:
Provided that a person who is under the age of sixteen years or is a woman or is sick or infirm, may be released on bail, if the special court so directs.
Provided further that the Special Court shall not take cognizance of any offence punishable under section 4 except upon a complaint in writing made by--
(i) the Director; or
(ii) any officer of the Central Government or State Government authorised in writing in this behalf by the Central Government by a general or a special order made in this behalf by that Government.
[(1A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other provision of this Act, no police officer shall investigate into an offence under this Act unless specifically authorised, by the Central Government by a general or special order, and, subject to such conditions as may be prescribed.] (2) The limitation on granting of bail specified in 3[***] sub-section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.
46. Application of the Code of Criminal Procedure, 1973 to proceedings before Special Court.--(1) Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) (including the provisions as to bails or bonds), shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Session and the persons conducting the prosecution before the Special Court, shall be deemed to be a Public Prosecutor.
Provided that the Central Government may also appoint for any case or class or group of cases a Special Public Prosecutor.
(2) A person shall not be qualified to be appointed as a Public Prosecutor or a Special Public Prosecutor under this section unless he has been in practice as an Advocate for not less than seven years, under the Union or a State, requiring special knowledge of law.
(3) Every person appointed as a Public Prosecutor or a Special Public Prosecutor under this section shall be deemed to be a Public Prosecutor within the meaning of clause (u) of section 2 of the Code of Criminal Procedure, 1973 (2 of 1974) and the provisions of that Code shall have effect accordingly."
18. Thus, from the scheme of Sections 44, 45 and 46, it is clear that the Special Court can take cognizance of an offence punishable under Section 4 upon a complaint in writing made by the Director or any officer of the Central Government or State Government authorized in writing in this behalf by the Central Government by a general order/special order made in this behalf by that Government. Once the complaint is filed under Section 45(1) of PML Act, 2002 it has to be dealt with as provided under Section 44 of PML Act, 2002.
19. Section 44 of PML Act, 2002 begins with a non-obstante clause and, therefore, the procedure prescribed under Chapter XIV Cr.P.C. will have no application to a complaint filed before the Special Court under Section 45 of PML Act, 2002. It has to be dealt with only in accordance with provisions of Section 44 of PML Act. Sub section (1) Clause (b) of Section 44 provides that upon a complaint made by an authority authorized in this behalf under the PML Act, 2002, the Special Court may take cognizance of offence under Section 3 without the case being committed for trial. The Special Court has to apply its mind to the complaint and material placed before it for summoning the accused to face trial. No further evidence is required to be taken for issuing the process, summoning the accused as is the procedure provided under Chapter XIV Cr.P.C. This is also clear from bare reading of Clause (c) of sub-section (1) of Section 44 which provides that if cognizance of scheduled offence has been taken by a Court other than Special Court which has taken cognizance on the complaint of the offence of money laundering under Clause (b), the Court is required to commit the case relating to the scheduled offence to the Special Court and the Special Court shall, on receipt of such case, proceed to deal with it from the stage at which it is committed. The stages after committal of an offence is framing of charge and trial.
20. It is noticeable that Section 46 of PML Act provides for application of the provisions of Cr.P.C., 1973 to the proceedings before the Special Court, however, the application of Cr.P.C. is qualified by the phrase "save as otherwise provided in this Act" (PML Act). Thus, the provisions of Cr.P.C. are applicable to the proceedings under PML Act in respect of the matters for which PML Act does not make any provision. Occurrence of the phrase "save as otherwise provided in this Act" makes the legal position clear in this regard.
21. We do not see any quarrel with the proposition advanced by the learned counsel for the applicant that taking cognizance and issuing process under Chapter XIV Cr.P.C. are two different stages, but this is not the procedure envisaged under Sections 44, 45 and 46 of PML Act, 2002. Once the complaint is filed for offence under Section 3 of PML Act, 2002 the learned Special Judge may take cognizance on the complaint and summon the accused to face trial. Learned Special Court vide impugned order has considered the complaint and recorded its satisfaction that prima facie case under Section 3 of PML Act, 2002 punishable under Section 4 PML Act is made out against the accused, including the applicant herein and, therefore, they have been summoned to face the trial.
22. Section 65 of the PML Act reads as under:-
"Code of Criminal Procedure, 1973 to apply:- The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply, insofar as they are not inconsistent with the provisions of this Act, to arrest, search and seizure, attachment, confiscation, investigation, prosecution and all other proceedings under this Act."
23. Thus, the text of Section 65 is explicit that the provisions of Cr.P.C. would be applicable in a case under PML Act only if the provisions of Code are not inconsistent with the provisions of PML Act in respect of arrest, search and seizure, attachment, confiscation, investigation, prosecution and all other proceedings under PML Act. The supremacy of the provisions of the PML Act is evident from Section 65 itself. The provisions of Cr.P.C. would be applicable only when the provisions under the PML Act do not provide for some proceedings. Further, the provisions of Cr.P.C. should not be inconsistent with the provisions of PML Act. If the provisions under the PML Act provide for the proceedings, one need not to look at the provisions of the Cr.P.C., so far as the proceedings under PML Act are concerned.
24. In view of aforesaid discussions, we do not find any infirmity or illegality in the impugned order passed by the learned Sessions Judge (Special Court), Lucknow. Moreover, nine other accused are facing trial in the same case. The applicant's case is in no manner different than the case of nine other accused.
25. Considering overall facts and circumstances and the provisions of the PML Act, 2002, we hereby dismiss this petition and vacate the interim order, if any.
Order Date :- 28th March, 2018 MVS Chauhan/-