Jharkhand High Court
Bhanu Pratap Shahi vs The State Of Jharkhand Through ... on 8 July, 2014
Author: H. C. Mishra
Bench: H. C. Mishra
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M.P. No.1027 of 2014
Bhanu Pratap Shahi ..... ... Petitioner
Versus
The State of Jharkhand
through Directorate of Enforcement ..... ... Opposite Party
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CORAM : HON'BLE MR. JUSTICE H. C. MISHRA
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For the Petitioner : Mr. A.K. Kashyap, Sr. Advocate
Mr. Sreenu Garapati
For the ED : Mr. Amit Kumar Das
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8/08.07.2014Heard learned counsel for the petitioner and learned counsel for the Enforcement Directorate.
2. Petitioner is aggrieved by the order dated 25.3.2014 passed by the learned Special Judge, CBI Ranchi, in ECIR/02/PAT/09/AD(C), whereby cognizance has been taken against the petitioner and the other co-accused persons for the offence under Section 4 of the Prevention of Money Laundering Act, 2002 (hereinafter referred as to the 'PMLA Act').
3. The Vigilance Case No. 9 of 2009 was registered against Madhu Koda and others, for commission of the offences punishable under Sections 409/420/423/424/465/120-B of the Indian Penal Code and Sections 7/10/11/13 of the Prevention of Corruption Act, on the basis of the complaint filed by one Rajiv Sharma vide complaint No.1 of 2009. The investigation of the case was taken up by the Vigilance Department of Ranchi. A public Interest Litigation WP (PIL) No.4700 of 2008 was also filed in this Court by one Durga Oraon alleging corrupt practices by Madhu Koda and others and the another WP (PIL) No.2252 of 2009 was filed by one Aman Munda making similar allegations against Madhu Koda and others, seeking direction of the High Court for investigation by the Central Bureau of Investigation and the Income Tax Department. Subsequently, Directorate of Enforcement was made one of the respondents in the WP(PIL) No.4700 of 2008. The High Court vide order dated 4.8.2010 in WP(PIL) No.4700 of 2008 transferred the investigation in Vigilance Case No.09 of 2009 to the CBI for further investigation. In compliance of the order of the High Court, the Vigilance Case No.9 of 2009 was taken up by the CBI and the case was re-registered by CBI as case No. RC 5(A)/2010/AHD-Ranchi dated 11.08.2010. Ultimately, after investigation, the CBI, AHD Ranchi, submitted the charge-sheet 2 No.7 of 2011 dated 22.12.2011 in the said RC 5(A)/2010/AHD-Ranchi, before the learned Special Judge, CBI, Ranchi, against the petitioner and other accused persons for the offence under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act and Section 109 of the IPC.
4. During the investigation in the vigilance case, the Enforcement Directorate obtained the copy of the FIR No.9 of 2009 for investigation under the Prevention of Money Laundering Act, and the investigation was taken up under the ECIR (Enforcement Case Information Report) bearing No. ECIR/02/Pat/2009/AD dated 8.10.2009. Upon investigation, the complaint case was filed by the Enforcement Directorate before the learned Special Judge CBI, Ranchi, before whom the charge-sheet was submitted in RC 5(A)/2010/AHD-Ranchi. On the basis of the complaint, as contained in Annexure-1 to this application, the cognizance has been taken by the learned Special Judge, CBI, Ranchi by the order dated 25.3.2014, which has been challenged in the present case.
5. Learned counsel for the petitioner has challenged the impugned order taking cognizance by the learned Special Judge, CBI, Ranchi, submitting that under Section 43 of the PMLA Act, Special Courts are to be constituted by the Central Government in consultation with the Chief Justice of the concerned High Court for trial of the offences punishable under Section 4 of the said Act, and under Section 44 of the PMLA Act, the Special Court constituted under Section 43 of the Act, is empowered to take cognizance upon the complaint. Learned counsel has submitted that a general notification has been issued by the Central Government in exercise of the power under Section 43 of the PMLA Act, whereby, so far as the State of Jharkhand is concerned, it is the 1st Additional Judicial Commissioner, Ranchi, who has been empowered to try the cases under the PMLA Act arising within the jurisdiction of the Ranchi Sessions Division. Learned counsel has pointed out that even thereafter, two notifications have been issued by the Central Government, one being dated 23rd May 2012, which reads as follows:-
"S.O. 1159(E).- In exercise of the powers conferred by Sub-Section (1) of Section 43 of the Prevention of Money-Laundering Act, 2002 (15 of 2003), the Central Government in consultation with the Chief Justice of the High Court of Jharkhand, hereby designates the Court of Special Judge-I, CBI (ACB), Ranchi, being a Court of Session, as the Special Court to try offences punishable under Section 4 of the said 3 Act in respect of all cases connected with offences alleged to have been committed by Shri Madhu Koda, former Chief Minister of Jharkhand and others."
Subsequently, another notification dated 28th June 2012 has been issued by the Central Government in exercise of power under Section 43 of the PMLA Act, which also reads as follows:-
"S.O. 1435(E).- In exercise of the powers conferred by Sub-
Section (1) of Section 43 of the Prevention of Money- Laundering Act, 2002 (15 of 2003), the Central Government in consultation with the Chief Justice of the High Court of Jharkhand, hereby designates the Court of Special Judge-I, CBI (ACB), Ranchi, being a Court of Session, as the Special Court to try offences punishable under Section 4 of the said Act in respect of all cases connected with offences alleged to have been committed by Shri Anosh Ekka."
6. It has been submitted by the learned counsel for the petitioner that no notification has been issued with respect to the petitioner, and a separate complaint has been filed against the petitioner by the Directorate of Enforcement, on the basis of which, the cognizance has been taken against the petitioner. It has been submitted that the notification dated 23rd May 2012 relates to Madhu Koda and others and the notification dated 28th June 2012 relates to Anosh Ekka, and none of these notifications relate to this petitioner. Accordingly, the case of the petitioner shall be governed by the general notification issued by the Central Government, by which the Special Court has been notified to be that of the 1st Additional Judicial Commissioner, Ranchi. Learned counsel submitted, that the cognizance in the present case having not been taken by the learned 1st Additional Judicial Commissioner, Ranchi, is thus, absolutely illegal and on that score alone, the entire proceeding against the petitioner is fit to be quashed.
7. Learned counsel for the petitioner has also submitted that on the date of issuance of notification dated 23rd May, 2012, or the notification dated 28th June 2012, there was no complaint against the petitioner and in that view of the matter also, the petitioner would be governed by the general notification issued by the Central Government and the Special Judge, CBI, Ranchi, has no jurisdiction to try the case. In support of his contention, learned counsel has placed reliance upon the decision of the Hon'ble Supreme Court of India in State of Haryana & Ors., Vs. Bhajan Lal &Ors., reported in 1992 Supp (1) SCC 335, wherein the 4 Supreme Court of India has discussed the categories of cases, in which the High Court may exercise the extraordinary power under Art. 226 of the Constitution of India, or the inherent power under Section 482 of the Cr.P.C., for quashing the entire criminal proceeding and one of the categories being as follows:-
"102. *** *** *** (6) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party."
Placing reliance on this decision, it has been submitted by the learned counsel for the petitioner that there being express legal bar in the PMLA Act, the order taking cognizance and continuance of the proceedings against the petitioner before the Special Judge, CBI, Ranchi, are fit to be quashed.
8. Learned counsel for the petitioner has further placed reliance upon the decision of the Hon'ble Supreme Court of India in Subramanian Swamy Vs. Manmohan Singh and Anr., reported in (2012) 3 SCC 64, wherein the law laid down is as follows:-
"34. *** *** *** Though the term "cognizance" has not been defined either in the 1988 Act or CrPC, the same has acquired a definite meaning and connotation from various judicial precedents. In legal parlance cognizance is "taking judicial notice by the Court of law, possessing jurisdiction, on a cause or matter presented before it so as to decide whether there is any basis for initiating proceedings and determination of the cause or matter judicially." (Emphasis supplied).
Placing reliance on this decision, it has been submitted by the learned counsel that cognizance has to be taken by the Court possessing jurisdiction, but in the present case, the cognizance has been taken, by the Court having no jurisdiction at all, and as such, the impugned order cannot be sustained in the eyes of law.
9. It has also been submitted by the learned counsel for the petitioner that the defect in taking cognizance against the petitioner cannot be cured with the help of Section 460 of the Cr.P.C., in view of the fact that the 5 cognizance has not been taken in exercise of power under Section 190 of the Cr.P.C., rather the cognizance has been taken under the the special Act being PMLA Act, and accordingly, the same cannot be cured with the help of Section 460 of the Cr.P.C. In support of his contention learned counsel has placed reliance upon the decision of the Hon'ble Supreme Court in Bhajahari Mondal Vs. State of West Bengal, reported in AIR 1956 SC 8.
10. Learned counsel for the petitioner has further pointed out that the cognizance has been taken in ECIR/02/PAT/09/AD(C), and not in the complaint case. Learned counsel has drawn the attention of this Court towards the PMLA Manual, in which it is clarified that ECIR is only an internal document for departmental purposes, which is not statutory in nature. Only a copy of ECIR, is required to be forwarded to the Adjudicating Authority under PMLA, along with the Provisional Attachment Order, when filing Complaint in terms of Section 5(5) of PMLA Act.
11. This submission of the learned counsel for the petitioner has no legs to stand in view of the complaint petition, which has been brought on record as Annexure - 1, which clearly shows that a separate complaint has been filed against the petitioner. In my considered view merely citing the number in ECIR in the impugned order, shall not vitiate the impugned order.
12. Per contra, learned counsel for the Enforcement Directorate has drawn the attention of this Court towards the additional counter affidavit filed on their behalf, in which the document relating to Enforcement Case Information Report (ECIR), has been brought on record. Annexure-A to the counter affidavit shows that the investigation was taken up by the Enforcement Directorate relating to case of Scheduled offence, in which Madhu Koda and others were the accused persons. In the same investigation report, the petitioner has also been named as an accused and it has been submitted by the learned counsel for the Enforcement Directorate that actually it is in connection with the scheduled offence relating to CBI Case No. RC 5(A)/2010/AHD-Ranchi, in which Madhu Koda and others, including the petitioner were made accused. After investigation in the matter, the complaint was filed by the Enforcement Directorate separately against the accused persons, but all of them relate to the same Case No. RC 5(A)/2010/AHD-Ranchi. It has been submitted by the learned counsel for the Enforcement Directorate that Gazette 6 notification issued by the Government of India, dated 23rd May 2012, in exercise of power under Section 43 of the PMLA Act, it is the Special Judge-I, CBI Ranchi, which has been declared to be the Special Judge for trying the offences under Section 4 of the PMLA Act in the cases relating to Madhu Koda and others, and the petitioner also being co-accused in the said case along with Madhu Koda, it is the Special Judge-1, CBI Ranchi, who is the competent Court to take the cognizance against the petitioner.
13. In reply to the submission of the learned counsel for the petitioner that on the date of issuance of this notification, there was no complainant against the petitioner, it has been submitted by the learned counsel for the Enforcement Directorate, that the investigation in the matter was taken up in the year 2009 itself, and accordingly, upon investigation, the complaint was filed before the Special Court constituted for the purpose. Learned counsel accordingly, submitted that there is absolutely no illegality in the impugned order passed by the Court below and the Court is having the jurisdiction to take cognizance against the petitioner and to hold the trial.
14. After having heard learned counsels for both the sides and upon going through the complaint case, which has been brought on record as Annexure - 1, it is apparent that the FIR bearing No. 9 of 2009 was initially instituted against Madhu Koda and others for commission of the offences punishable under the Indian Penal Code and Prevention of Corruption Act. Subsequently by order dated 4.8.2010 passed by the High Court in WP (PIL) No. 4700 of 2008, the said vigilance case No.9 of 2009 was taken up by the CBI, which re-registered the case as RC 5(A)/2010/AHD-Ranchi, in which the petitioner has also been made accused along with Madhu Koda and others. It further appears from the complaint petition itself, that during the pendency of the said case, the investigation of the matter was taken up by the Directorate of Enforcement, Patna, under the PMLA Act and ultimately the complaint was filed against the petitioner. Since the investigation under the PMLA Act matter related to the main offence in which the petitioner is an accused along with Madhu Koda and others, after completion of the investigation by the Enforcement Directorate, the complaint was filed in the same Court of the Special Judge, CBI, AHD, who was trying the main offence, and according to the Gazette notification issued by the Government of India on 23rd May 2012, has been designated as the Special Court to try the offence under the PMLA Act also. In that view of matter, the contention of the learned counsel for the 7 petitioner that this is a separate complaint case, is only fit to be rejected and in my considered view the complaint was filed by the Enforcement Directorate, in the correct Court having the jurisdiction. Consequently, on the basis of the complaint, learned Special Judge, CBI, Ranchi has taken the cognizance and no fault can be found in the same and the said Court is the competent Court to take cognizance against the petitioner in the matter relating to the offences under the PMLA Act also. As such, the decisions relied upon by learned counsel for the petitioner are of no help to the petitioner.
15. In view of the aforementioned discussions, I do not find any illegality in the impugned order passed by the Court below. There is no merit in this application and the same is accordingly, dismissed.
( H. C. Mishra, J.) R.Kumar/