IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 5678 of 2011 For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= UNION OF INDIA DEPARTMETN OF REVENUE - MINISTRY OF FINANCE - Applicant(s) Versus THAKORE CHATURBHUJ SHINGALA & 6 - Respondent(s) =========================================================
Appearance :
MR PS CHAMPANERI for Applicant(s) : 1, MR HARSHIT S TOLIA for Respondent(s) : 1, MR PARTH S TOLIA for Respondent(s) : 1, RULE SERVED for Respondent(s) : 2, 5, MR HARDIK D MUCHHALA for Respondent(s) : 3, 6, MR ANAND B GOGIA for Respondent(s) : 4, MR LB DABHI ADDL.PUBLIC PROSECUTOR for Respondent(s) : 7, =========================================================
CORAM : HONOURABLE MR.JUSTICE M.R. SHAH
Date : 12/1/2012
CAV JUDGMENT 1.00. Present Criminal Misc. Application under section 407 of the Code of Criminal Procedure has been preferred by the applicant – original complainant - Union of India, Department of Revenue, Ministry of Finance, through Deputy Director, Directorate of Enforcement, Foreign Exchange, Management Act and Prevention of Money Laundering Act, 2002, for an appropriate order to transfer proceedings of Criminal Case No.2887 of 2008 pending in the Court of learned Chief Judicial Magistrate, Rajkot to the Special Court, Ahmedabad (Rural) constituted under the provisions of Section 43 of the Prevention of Money Laundering Act, 2002. (hereinafter referred to as “the Act” for short). It is also further prayed to quash and set aside the order passed by the learned Sessions Court, Ahmedabad (Rural) below Ex.14 in PMLA Case No.1 of 2010.
2.00. Facts leading to the present application, in nutshell, are as under:-
2.01. That the respondent Nos.1 to 6 herein – original accused have initially been charged for the offences punishable under sections 120B, 34, 408, 409, 467, 471 of Indian Penal Code and the said First Information Report was investigated by the Economic Offence Prevention Cell, CID (Crime), State of Gujarat, Gandhinagar and after concluding the investigation pursuant to the First Information Report registered at CR No.I-20 of 2008 registered with Rajkot City A- Division Police Station, chargesheet has been filed by the investigating officer i.e. In-Charge Deputy Superintendent of Police, Economic Offence Prevention Cell, CID (Crime), State of Gujarat, Gandhinagar in the court of learned Chief Judicial Magistrate, Rajkot being Chargesheet No.54 of 2008 on 10/4/2008.
2.02. It appears that upon the receipt of the information by the Enforcement Directorate about the commission of the aforesaid offences by the respondents herein - original accused, and it appeared that the respondents - accused have indulged into Money Laundering and therefore, investigation was carried out by the Ahmedabad Zonal Office under the provisions of the Act by registering Case No.ECIR/O2/AZ0/2008 dtd.22/8/2008. It appears that after the detailed and through investigation as it was revealed that the respondents – accused have committed offences under section 3 and 4 of the Act over and above other offences which are also Scheduled offences within the meaning of Sec.2(y) of the Act, report in Form of a complaint came to be filed by the appropriate authority i.e. the Deputy Director, Directorate of Enforcement, Ahmedabad on 19/3/2010 before the learned Special Judge, Ahmedabad and the learned Special Court has taken cognizance of the said complaint and the same is registered as PMLA Case No.1 of 2010. It appears that as the respondents – accused were charged for the very acts and transactions and cognizance thereof was taken by two different courts, applicant moved application under section 407 of the Code of Criminal Procedure before the learned Special Court to transfer the proceedings of Criminal Case No.2887 of 2008 from the Court of learned Chief Judicial Magistrate, Rajkot to the Special Court, Ahmedabad (Rural) which came to be rejected by the impugned order on the ground that he has no jurisdiction to transfer the proceedings of Criminal Case No.2887 of 2008 pending in the Court of learned Chief Judicial Magistrate, Rajkot to the Special Court, Ahmedabad (Rural). Hence the applicant has preferred the present application under section 407 of the Code of Criminal Procedure for the aforesaid relief to transfer the proceedings of Criminal Case No.2887 of 2008 from the Court of learned Chief Judicial Magistrate, Rajkot to the Special Court, Ahmedabad (Rural).
3.00. Mr.Buch, learned Central Government Counsel appearing on behalf of the applicant has submitted that earlier when First Information Report was lodged against the accused persons being CR No.I-20 of 2008 with the Rajkot City A- Division Police Station on 24/1/2008 and in which the accused persons were chargesheeted and were charged for the offences punishable under section 467 of Indian Penal Code, it was also a Scheduled Offence under the Money Laundering Act at the relevant time and therefore, considering section 43 of the Act read with sec.44 of the Act even the said case is required to be tried by the Special Court constituted under sec.43 of the Act. It is further submitted by Mr.Buch, learned counsel appearing on behalf of the applicant that the respondents are chargesheeted for the alleged acts and transactions of misappropriation of the amount from the Bank for committing offence of cheating and forgery, and the respondents have been charged with the offence under section 467 of Indian Penal Code along with several other offences and chargesheet also has been filed way back in the year 2008 and at that time also offence under section 467 of Indian Penal Code was a Scheduled offence within the meaning of section 2(y) of the Act. Therefore, in view of section 44(1) of the Act read with sub-section (2) of section 43 of the Act, the same shall be triable by the Special Court and therefore, it is only the Special Court which is competent to take cognizance and try the case. It is submitted that so far as the rest of the offences which are alleged against the respondents are concerned, in view of the provisions contained in Sub-Section (2) of Section 43 of the Act, the Special Court shall also try such offences along with the offences referred to in section 4 of the Act at the same trial.
3.01. Mr.Buch, learned Central Government Counsel appearing on behalf of the applicant has further submitted that as such the Special Court has taken cognizance of the case for the very offence and for the very transaction being PMLA Case No.1 of 2010 and therefor, even considering section 220(3) and (4) of the Code of Criminal Procedure, the acts alleged are the same and the same constitute offence falling within two separate definitions of law and therefore, they can be charged with and tried at one trial for each such offence.
By making above submissions it is requested to allow this application and transfer the proceedings of Criminal Case No.2887 of 2008 from the Court of learned Chief Judicial Magistrate, Rajkot to the Special Court, Ahmedabad (Rural) constituted under section 43 of the Act.
4.00. Present petition is opposed by Mr.Tolia, learned advocate appearing on behalf of the respondent No.1 and Mr.Hardik Muchhala, learned advocate appearing on behalf of the respondent Nos.3 and 6 and Mr.Anand B. Gogia, learned advocate appearing on behalf of the respondent No.4. Though served nobody appears on behalf of the respondent Nos.2 and 5 and Mr.L.B. Dabhi, learned Additional Public Prosecutor has appeared on behalf of the respondent No.7 - State.
4.01. Learned advocates appearing on behalf of the respondents - accused, more particularly Mr.Tolia, learned advocate appearing on behalf of the respondent No.1 has submitted that the offence alleged to have been committed by the accused persons for the offences under the Indian Penal Code, they are included as Scheduled offences by the Amendment Act of 2009 and the alleged offences have been committed in the year 2008 and therefore, for the offences alleged to have been committed in the year 2008 which were not Scheduled offence under the Act at the relevant time in the year 2008, Special Court constituted under sec.43 of the Act would not have any jurisdiction to take cognizance and try.
4.02. Mr.Tolia, learned advocate appearing on behalf of the respondent No.1 has further submitted that assuming that one of the offence under the Indian Penal Code alleged to have been committed at the relevant time was a Scheduled offence (i.e. offence under section 467 of Indian Penal Code), in that case also the Special Court constituted in the year 2009 would not have any jurisdiction to take cognizance and try.
4.03. Mr.Tolia, learned advocate appearing on behalf of the respondent No.1 has further submitted that even otherwise considering the provisions of the Act, no police officer shall investigate into an offence under the Act unless specifically authorised by the Central Government by general or special order and even the Special Court also shall not take any cognizance of any offence under section 4 except upon a complaint in writing made by the Director or any officer of the Central Government authorised in writing in this behalf by the Central Government by general or special order. Therefore, it is submitted that even on the aforesaid ground also the proceedings of Criminal Case No.2887 of 2008 pending in the Court of learned Chief Judicial Magistrate, Rajkot cannot be transferred to the Special Court, Ahmedabad (Rural) constituted under section 43 of the Act.
4.04. Mr.Tolia, learned advocate appearing on behalf of the respondent No.1 has further submitted that if the proceedings are transferred from the Court of Chief Judicial Magistrate, Rajkot to the Court of learned Special Court, Ahmedabad (Rural), in that case, the accused persons would lose their valuable right of appeal before the Sessions Court, as against the judgement and order passed by the Chief Judicial Magistrate, the accused have a further statutory remedy of appeal before the Sessions Court. Therefore, it is submitted that by the aforesaid transfer, the right of the accused to prefer appeal before the Sessions Court would be taken away and therefore, it is requested not to transfer the proceedings of Criminal Case No.2887 of 2008 from the Court of learned Chief Judicial Magistrate, Rajkot to the Special Court, Ahmedabad (Rural) constituted under section 43 of the Act.
4.05. Mr.Tolia, learned advocate appearing on behalf of the respondent No.1 has relied upon the decision of the Hon'ble Supreme Court in the case of Transmission Corporation of A.P. Versus Ch.Prabhakar and others, reported in (2004) 5 SCC 551 as well as decision of the Hon'ble Supreme Court in the case of Bhajahari Mondal Versus State of West Bengal, reported in AIR 1959 S.C. 8 in support of his prayer to dismiss the present application.
4.06. Mr.Muchhala, learned advocate appearing on behalf of the respondent No.3 – original accused No.3 has submitted that even there is one application submitted by the original accused No.3 before the learned Chief Judicial Magistrate, Rajkot in Case No.2887 of 2008 to delete and/or not consider sections 467, 471 and 120B of Indian Penal Code, so far as original accused No.3 is concerned.
4.07. Mr.L.B. Dabhi, learned Additional Public Prosecutor appearing on behalf of the State has supported the applicant and relying upon sections 43 and 44 of the Act read with provisions of the Code of Criminal Procedure, it is requested to transfer the proceedings pending in the court of learned Chief Judicial Magistrate, Rajkot to the Special Court, Ahmedabad (Rural) constituted under the provisions of the Act.
5.00. Heard the learned advocates appearing on behalf of the respective parties.
5.01. Before considering the rival submissions made by the learned advocates appearing on behalf of the respective parties, the following relevant provisions of the Prevention of Money Laundering Act, 2002/2009, and the Code of Criminal Procedure are required to be referred to :-
Section 2(y) of the Act:- “Scheduled offence” means -
(i) the offences specified under Part A of the Schedule; or
(ii) the offences specified under Part B of the Schedule if the total value involved in such offences is thirty lakh rupees or more; or] [(iii) the offences specified under Part C of the Schedule;]
Section 2(z) of the Act:-
“Special Court” means a Court of Sessions designated as Special Court under sub-section (1) of section 43.
Section 43 of the Act:- “Sec.43. Special Courts--
(1) The Central Government, in consonance with the Chief Justice of the High Court, shall, for trial of offence punishable under section 4, by notification, designate one or more Courts of Session as Special Court or Special Courts for such area or areas or for such case or class or group of cases as may be specified in the notification.
Explanation :- In this sub-section, “High Court” means the High Court of the State in which a Sessions Court designated as Special Court was functioning immediately before such designation.
(2) While trying an offence under this Act, a Special Court shall also try an offence, other than an offence referred to in sub-section (1), with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial.
Section 44 of the Act:-
“Sec.44. Offences triable by Special Courts.--
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--
(a) the scheduled offence and 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, 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.
(2) Notwithstanding anything 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.
Section 45 of the Act:-
“Sec.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 tis 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 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.
Section 46 of the Act:-
“Sec.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 bail or bonds), shall apply to the proceedings before a Special Court and for the purpose 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.
Section 65 of the Act:-
Sec.65. 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.
Section 220 of the Code of Criminal Procedure:- “Sec.220.--Trial for more than one offence :-
(1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.
(2) When a person charged with one or more offences of criminal breach of trust or dishonest misappropriation of property as provided in sub- section (2) of Section 212 or in sub-section (1) of Section 219, is accused of committing, for the purpose of facilitating or concealing the commission of that offence or those offences, one or more offences of falsification of accounts, he may be charged with, and tried at one trial for, every such offence.
(3) If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for. each of such offences.
(4) If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for the offence constituted by such acts when combined, and for any offence constituted by any one, or more, of such acts.
(5) Nothing contained in this section shall affect Section 71 of the Indian Penal Code, 1860.”
5.02. Now, considering the facts of the case on hand it appears that for the very transaction initially First Information Report was registered against the respondents - accused persons for the offences punishable under sections 408, 409, 467, 471, 120B, 34 of Indian Penal Code vide CR No.I-20 of 2008 registered with Rajkot City A-Division Police Station on 24/1/2008. That after the investigation the investigating officer i.e. In-Charge Deputy Superintendent of Police, Economic Offence Prevention Cell, CID Crime, State of Gujarat, Gandhinagar had submitted Chargesheet against the accused persons for the offences under the Indian Penal Code in the court of learned Chief Judicial Magistrate, Rajkot and the case against the accused persons is registered as Criminal Case No.2887 of 2008 pending in the court of learned Chief Judicial Magistrate, Rajkot. It is required to be noted that the alleged offences have been committed in the year 2008 and even considering the provisions of Prevention of Money Laundering Act, 2002 offence under section 467 of Indian Penal Code was a Scheduled offence as per section 2(y) of the Act of 2002.
5.03. Section 43 of the Act of 2002 provides that Central Government, in consultation with the Chief Justice of the High Court, shall, for trial of offence punishable under section 4, by notification, designate one or more Courts of Session as Special Court or Special Courts for such area or the areas or for such case or class or group of cases as may be specified in the notification.
5.04. Sub-section (2) of Section 43 of the Act of 2002 provides that while trying an offence under the Money Laundering Act, 2002, a Special Court shall also try an offence other than offence referred to in Sub-section (1) (offence other than punishable under section 4 of the Money Laundering Act, 2002) with which the accused may, under the Code of Criminal Procedure be charged at the same trial.
5.05. As per section 44 of the Act of 2002 and even Act of 2009, notwithstanding anything contained in the Code of Criminal Procedure, 1973, the Scheduled offence and 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.
5.06. Therefore, considering the fact that even at the relevant time when the offence was alleged to have been committed, accused persons were charged for the offence under section 467 of the Indian Penal Code which was a Scheduled offence at the relevant time as per sec.2(y) of the Act of 2002. On conjoint reading of sections 43 and 44 of the Act, accused persons were required to be tried only by the Special Court constituted under sec.43 of the Act of 2002. It is true that some of the offences under the Indian Penal Code for which accused persons are chargsheeted came to be included as Scheduled offence subsequently by way of Amendment in the year 2009, however, considering Sub-section (2) of Section 43 of the Act, as the offence under section 467 of Indian Penal Code was a Scheduled offence as per section 2(y) of the Act of 2002, which was exclusively triable by the Special Court constituted under section 43 of the Act, even considering Sub- section (2) of Section 43 of the Act of 2002, Special Court shall also try an offence other than an offence referred to in Sub- section (1) (with respect to offences under the Indian Penal Code which are not Scheduled offences) also by the Special Court at the same trial. Therefore, all the accused persons are to be tried by the Special Court at the same trial even for the offences under the Indian Penal Code which at the relevant time might not be Scheduled offences as one of the offence under Section 467 of Indian Penal Code was Scheduled offence at the relevant time and for which the accused persons were required to be tried only by the Special Court constituted under Section 43 of the Act.
5.07. It is the contention on behalf of the respondents that as per Section 44 of the Act only Scheduled offence and the offence under section 4 shall be triable only by the Special Court constituted for the area in which the offence has been committed and therefore, for the offences under the Indian Penal Code which were not Scheduled offences at the relevant time, the accused are not required to be tried by the Special Court is concerned, it is required to be noted that Section 44 of the Act is to be read conjointly with Section 43 of the Act. If the contention on behalf of the respondents - accused is accepted, in that case, Sub-section (2) of Section 43 would become nugatory. It appears that Sub-section (2) of Section 43 is in consonance with the provisions of Code of Criminal Procedure, more particularly Section 220(3) and (4) of the Code of Criminal Procedure. The intention of the legislature seems to be that for the same transaction there shall not be two different trials by two different Courts. Even otherwise, considering Section 220(3) and (4) of the Code of Criminal Procedure read with Section 43(2) of the Act with respect to all offences under the Indian Penal Code as well as Scheduled offences under the Act, the accused persons are to be tried at one trial and by the Special Court constituted under Section 43 of the Act. It is not in dispute that provisions of the Code of Criminal Procedure would be applicable in so far as they are not in consistent with the provisions of the Act of 2002/2009 to arrest search and seizure, attachment, confiscation, investigation, prosecution and all other proceedings under the Act.
5.08. Now so far as the contention on behalf of the one of the respondents that if the proceedings pending before the learned Chief Judicial Magistrate, Rajkot for the offences under the Indian Penal Code are transferred to the Special Court, Ahmedabad (Rural), they would lose their right of appeal before the Sessions Court is concerned, the same has no substance. It is to be noted that the accused persons are chargesheeted for the offences punishable under sections 467 and 469 of the Indian Penal Code also and the punishment for which may extend for life and therefore, considering Section 374(2) of the Code of Criminal Procedure, appeal would be maintainable only before the High Court and therefore, no right of the accused persons of appeal before the Sessions Court would be affected and/or taken away. Even otherwise, considering the fact that at the relevant time Section 467 of Indian Penal Code was Scheduled offence, considering sections 43 and 44 of the Act of 2002, accused persons were to be tried only by the Special Court. Therefore, the aforesaid contention on behalf of the accused persons has no substance and the same cannot be accepted.
5.09. Now, so far as the reliance placed by the learned advocate appearing on behalf of the original accused in the case of Bhajahari Mondal (supra) is concerned, considering the facts of the said decision, the same would not be applicable to the facts of the present case. In the aforesaid case, it was found by the Hon'ble Supreme Court that at the relevant time when the Special Judge took cognizance of the case, there was no such offence as Section 161/116 of Indian Penal Code and it was found that when the learned Special Judge purported to take cognizance, he had no jurisdiction to do so and to try the case, as the offence under section 156A was not in the Scheduled of the West Bengal Act in 1949 as amended in 1952
5.10. Similarly the decision of the Hon'ble Supreme Court in the case of Transmission Corporation of A.P. (supra) relied upon by the learned advocate appearing on behalf of the respondents accused is concerned, the shall also not be applicable to the facts of the case on hand.
5.11. Even otherwise, it is required to be noted at this stage that one of the accused – original accused No.3 had submitted application Ex.27 before the learned Chief Judicial Magistrate, Rajkot in Criminal Case No.2887 of 2008 requesting not to consider sections 467, 471 and 120B of Indian Penal Code on the ground that for the very offences he is being tried by the Special Court.
5.12. Considering the aforesaid facts and circumstances of the case, present application deserves to be allowed and the proceedings of Criminal Case No.2887 of 2008 pending in the Court of learned Chief Judicial Magistrate, Rajkot are required to be transferred to the Special Court, Ahmedabad (Rural) and the original accused are to be tried for all offences for which they are chargesheeted by Special Court, Ahmedabad (Rural) along with PMLA Case No.1 of 2010.
6.00. In view of the above and for the reasons stated above, present application is allowed and proceedings of Criminal Case No.2887 of 2008 pending in the Court of learned Chief Judicial Magistrate, Rajkot are ordered to be transferred to the Special Court, Ahmedabad (Rural), constituted under Section 43 of the Prevention of Money Laundering Act, 2002 and the accused persons are ordered to be tried along with PMLA Case No.1 of 2010 by the Special Court, Ahmedabad (Rural). Rule is made absolute to the aforesaid extent.
[M.R. SHAH, J.] After the pronouncement of the present Judgement and Order, learned advocate appearing on behalf of the respondents have requested to stay the present the execution, operation and implementation of the present Judgement and Order.
Considering the facts and circumstances of the case and the fact that even the trial is likely to take some more time, the prayer to stay the present the execution, operation and implementation of the present Judgement and Order is rejected.
rafik [M.R. SHAH, J.]