INTRODUCTION:
 |
| PMLA |
Triggering
point for the offence of money laundering is commission ‘scheduled offence’
provided under Schedule to the Prevention of Money Laundering Act, 2002
(hereinafter ‘PMLA’). Once an FIR for ‘scheduled offence’ is registered, the
authority registering FIR shall inform about the same to the Enforcement
Directorate (ED). Thereafter ED shall register Enforcement Case Information
Report (hereinafter, ECIR) and initiate investigation for the offence of money
laundering. After investigation, ED shall file Prosecution Complaint (PC) or
Charge-sheet against accused person before Special Court.
OFFENCE
OF MONEY LAUNDERING TO BE TRIED BY SPECIAL COURT:
Offence
of money laundering shall be tried by a Court designated as Special Court by
the Central Government in consultation with the Chief Justice of the concern
High Court under section 43 of PMLA. Hence
offence of money laundering is triable by the Special Court under section 44 of
PMLA.
Section 44 reads as under:
"44. Offences triable by Special Courts.-
(l) Notwithstanding anything contained in
the Code of Criminal Procedure, 1973 (2 of 1974)-
(a)
an offence punishable under section
4 and any scheduled offence connected to the offence under that section shall
be triable 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 offence under section 3, without the accused being 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 authorised to file
a complaint under this Act, 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.
(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."
Clause
(c) of sub-section (1) of section 44 of PMLA provides that on Application, Special
Court (i.e. Session Court) shall also try ‘schedule offence’ along-with the
complaint filed under section 4 of PMLA.
The
said clause (c) of sub-section (1) of section 44 incorporates a condition
precedent that the above clause shall only be invoked if the scheduled offence is
triable by a Court of Magistrate and not otherwise.
Since
in a situation where scheduled offence is triable by a Court of Magistrate, an
Appeal or Revision shall lie to the next Appellate or Revision Court i.e. Court
of Session in terms of section 374, 378 or 397 Cr.P.C.
Section 374 of Cr.P.C. reads as under:
"374.
Appeals from convictions.-
(1)
Any person convicted on a trial
held by a High Court in its extraordinary original criminal jurisdiction may
appeal to the Supreme Court.
(2)
Any person convicted on a trial
held by a Sessions Judge or an Additional Sessions Judge or on a trial held by
any other Court in which a sentence of imprisonment for more than seven years
has been passed, may appeal to the High Court.
(3)
Save as otherwise provided in
sub-section (2), any person,-
(a) convicted on a trial held by a
Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first
class, or of the second class, or
(b) sentenced under section 325, or
(c) in respect of whom an order has been
made or a sentence has been passed under section 360 by any Magistrate, may
appeal to the Court of Session."
Section 378 of Cr.P.C. reads as under:
"378. Appeal in case of acquittal.-
(1)
Save as otherwise provided in
sub-section (2) and subject to the provisions of sub-sections (3) and (5), the
State Government may, in any case, direct the Public Prosecutor to present an
appeal to the High Court from an original or appellate order of acquittal
passed by any Court other than a High Court.
(2)
If such an order of acquittal is
passed in any case in which the offence has been investigated by the Delhi
Special Police Establishment constituted under the Delhi Special Police Establishment
Act, 1946 (25 of 1946) or by any other agency empowered to make investigation
into an offence under any Central Act other than this Code, the Central
Government may also direct the Public Prosecutor to present an appeal, subject
to the provisions of sub-section (3), to the High Court from the order of
acquittal.
(3)
No appeal under sub-section (1) or
sub-section (2) shall be entertained except with the leave of the High Court.
(4)
If such an order of acquittal is
passed in any case instituted upon complaint and the High Court, on an
application made to it by the complainant in this behalf, grants special leave
to appeal from the order of acquittal, the complainant may present such an
appeal to the High Court.
(5)
No application under sub-section
(4) for the grant of special leave to appeal from an order of acquittal shall
be entertained by the High Court after the expiry of six months, where the
complainant is a public servant, and sixty days in every other case, computed
from the date of that order of acquittal.
(6)
If, in any case, the application
under sub-section (4) for the grant of special leave to appeal from an order of
acquittal is refused, no appeal from that order of acquittal shall lie under
sub-section (1) or under sub-section (2)."
Section 397 of Cr.P.C. reads as under:
"397. Calling for records to exercise powers of
revision.-
(1) The High Court or any Sessions Judge may
call for and examine the record of any proceeding before any inferior Criminal
Court situate within its or his local jurisdiction for the purpose of
satisfying itself or himself as to the correctness, legality or propriety of
any finding, sentence or order, recorded or passed, and as to the regularity of
any proceedings of such inferior Court, and may, when calling for such record,
direct that the execution of any sentence or order be suspended, and if the
accused is in confinement, that he be released on bail or on his own bond
pending the examination of the record.
Explanation.- All
Magistrates, whether Executive or Judicial, and whether exercising original or
appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge
for the purposes of this sub-section and of section 398.
(2) The powers of revision conferred by
sub-section (1) shall not be exercised in relation to any interlocutory order
passed in any appeal, inquiry, trial or other proceeding;
(3) If an application under this section has
been made by any person either to the High Court or to the Sessions Judge, no
further application by the same person shall be entertained by the other of
them."
In
reference to above provisions, it is amply clear that the above said clause (c)
of sub-section (1) of section 44 appears to be violative of Right to Appeal/
Revision provided under above provisions of Cr.P.C. in a situation where ‘scheduled
offence’ is triable by Magistrate and in that eventuality Right to Appeal/
Revision of accused or State against order of the Magistrate has been despoiled.
As
we have discussed above that PMLA is not an independent Act and therefore
provisions of PMLA won’t be attracted by its own. It will be attracted only on
existence of scheduled offence/ predicate offence provided under Schedule to PMLA.
Right
to Appeal to the higher Court is a basic human right which is based on
statutory provisions, settled law, principle of natural justice, equity and
fair play. Right to Appeal is one of the sound and basic fundamental principle
which has been provided in both civil and criminal legislations.
In N.S. Abdul Gafoor & Anr. v. The
Karnataka State Transport Authority & Ors. (2017 SCC
OnLine Kar 1565), the Karnataka High Court
on 15.03.2017 held that the statutory remedy of an appeal available to an
aggrieved person cannot be curtailed by narrower interpretation.
In Raj Kumar Shivhare v. Directorate of Enforcement (2010) 4 SCC 772, the Supreme Court held as under:
"32. By referring to the aforesaid schemes
under different Statutes, this Court wants to underline that the right of
appeal, being always a creature of a Statute, its nature, ambit and width has
to be determined from the Statute itself. When the language of the Statute
regarding the nature of the order from which right of appeal has been conferred
is clear, no statutory interpretation is warranted either to widen or restrict
the same."
In Binod Kumar Sinha @ Binod Kumar &
Others v. State of Jharkhand through Directorate of Enforcement (2013 SCC
OnLine Jhar 373), a question as to whether the prosecution for scheduled
offences as defined under the provision of PMLA is necessarily to be preceded the trial for the offence
under section 3/4 of PMLA, came for consideration before the High Court
of Jharkhand. Considering the same the High Court of Jharkhand held that "Accordingly,
I do come to the conclusion unhesitatingly that the Special Court may proceed
with the trial for the scheduled offence as well as trial of the offence
punishable under the PMLA Act simultaneously.
The question posed is answered accordingly".
However, the above-said issue needs further
consideration, clarification and adjudication by the Hon'ble Supreme Court as
question of important statutory right of appeal is involved.
It is important to understand that through the
process of appeal, a person gets an opportunity to get any legal or factual
error in an order or judgment corrected. Nevertheless, appeals against any
judgment, or order, or sentence of a criminal court can only be preferred when
it has been specifically provided in the statutes like as provided in section
374 of Cr.P.C. (to the convicted person) and 378 Cr.P.C. (to the prosecution).
Thus, the right to appeal can only be exercised within the limits laid down by
Cr.P.C. or any other law for the time being is in force and hence, this is a
constricted right of an affected person
weather an accused, State or any third person who comes under the category of
'aggrieved person'.
Thus, the process of criminal justice has some
serious consequences on an individual’s life, primarily on the right to life
and personal liberty as enshrined under Article 21 of the Constitution of India.
CONCLUSION:
Right of appeal or revision cannot be taken away
and an accused cannot be deprived of a better procedure in view of the
provisions of Articles 20 and 21 of the Constitution of India as criminal
proceedings are always related with personal liberty of a citizen and it has
for reaching consequences as well. The right to appeal is a statutory right and
where the statute has provided for an appeal, it has to be followed in the
manner as the particular statute provides. (i) The
Hon’ble Supreme Court in State of Rajasthan v. Mohinuddin Jamal Alvi
(2016) 12 SCC 608, inter-alia, rightly observed that “21.3. if the statute
provides for a thing to be done in a particular manner, then it must be done in
that manner alone. All other modes or methods of doing that thing must be
deemed to have been prohibited…”. Accordingly, right
of Appeal is a statutory right and must be governed by the statute which grants
it and therefore, no further statute should alter, modify or override it.
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Indeed, its a mind blowing Article.
ReplyDeleteIndeed, a great analysis about the topic.
ReplyDelete