Jharkhand High Court
Hari Narayan Rai vs State Of Jharkhand & Ors on 5 April, 2010
Equivalent citations: 2010 (3) AIR JHAR R 296, (2010) 90 ALLINDCAS 493 (JHA)
Author: R.R.Prasad
Bench: R.R.Prasad
In the High Court of Jharkhand at Ranchi
W.P.(Cr.) No.15 of 2010
Hari Narayan Rai...................................Petitioner
VERSUS
State of Jharkhand and others....... Respondents
CORAM:HON'BLE MR. JUSTICE R.R.PRASAD
For the Petitioner : Mr.Binod Poddar, Sr. Advocate
For the Vigilance : Mr.A.K.Kashyap, Sr. Advocate
For the Enforcement Directorate: Mr. A. K. Das, Advocate
7. 5.4.10. One Kumar Vinod filed a complaint case on 25.10.2008 before the Special Judge, Vigilance against the petitioner and one Enos Ekka wherein it has been stated that the petitioner before being elected as M.L.A from Jarmundi Legislative Assembly Constituency in the year 2005, was having income which was not taxable but the petitioner during the period when he was holding the post of Minister, Tourism , Government of Jharkhand, amassed property worth Rs.30 crores whereas he could have acquired the property worth Rs.15 lacs and odd only from his known source of income and thus, the petitioner was alleged to have committed offence under Sections 406, 409, 420, 423, 424, 465 and 120B of the Indian Penal Code as well as under Sections 11/13 of the Prevention of Corruption Act.
On receiving the said complaint, Special Judge, Vigilance, Ranchi sent it under Section 156(3) of the Code of Criminal Procedure before the Vigilance Police Station, Ranchi for its registration and investigation. Accordingly, Vigilance P.S. case no.26 of 2008 (special case no.32 of 2008) was registered under the aforesaid offences and the matter was taken up for investigation by the vigilance.
While the investigation of the said case (special case no.32 of 2008) was going on, the Assistant Director-II, Directorate of Enforcement, Patna, respondent no.4 lodged Enforcement Case Information Report (in short 'ECIR') on 4.9.2009 against the 2 petitioner and others alleging therein that the petitioner and other accused did acquire huge properties movable and immovable using the same for their personal benefits by committing several offences including the offences under Sections 420, 423, 424, 120B of the Indian Penal Code and also under Section 13 of the Prevention of Corruption Act which are scheduled offences and thereby the petitioner has committed offence under Section 3 of the Prevention of Money Laundering Act (hereinafter referred to as 'PML' Act) punishable under Section 4 of the PML Act. It is the case of the petitioner that in spite of the case being lodged under Section 3/4 of the PML Act on 4.9.2009, the Vigilance continued with the investigation of the Special Case No.32 of 2008 and submitted charge sheet on 5.10.2009, though Vigilance upon institution of the ECIR by the Enforcement Directorate lost its authority by virtue of the provision as contained in Section 45(1-A) of the PML Act to investigate the case and to submit charge sheet and even the Special Judge, Vigilance, on submission of the charge sheet, took cognizance of the offence under Sections 406, 409, 420, 423, 424, 465/120B of the Indian Penal Code and also under Section 11/13(2) read with Section 13(1)(e) of the Prevention of Corruption Act which in the aforesaid context can be said to be bad.
Under the aforesaid circumstances, this writ application has been filed for quashing the charge sheet submitted by the police in Vigilance P.S. case no.26 of 2008 and also the order dated 5.10.2009 passed by the Special Judge, Vigilance, Ranchi whereby Special Judge, Vigilance, Ranchi has taken cognizance of the offences as aforesaid against the petitioner and also for issuance of an appropriate writ directing the special court (1st Additional Judicial Commissioner) constituted under the provision of PML Act to try the case registered under Section 3 and 4 of the PML Act along with 3 Special Case No.32 of 2008, pending in the court of Special Judge, Vigilance.
It be stated that though the main contention raised in the writ application is that when Enforcement Directorate lodged ECIR case on 4.9.2009, the Vigilance in view of the provision as contained in Section 45 (1-A) of the PML Act, 2002 should have stopped from proceeding with the investigation of Vigilance Case No.26 of 2008 (Special Case No.32 of 2008) as the offence under the Money Laundering Act and also the scheduled offences could have been investigated only by the Officer specially authorized by the Central Government and as such, charge sheet submitted by the Vigilance as also the order taking cognizance become quite bad and are fit to be set aside.
But in course of hearing, Mr. Poddar, Senior Counsel appearing for the petitioner submitted that the provision of Sections 43 and 44 of the PML Act mandates that the accused while being tried under the PML Act should also be tried for scheduled offences by the Special Court constituted under the PML Act and, therefore, the Vigilance court does not have any authority to proceed with the trial of the petitioner for the offences under which vigilance has submitted charge sheet.
Mr. A.K.Kashyap, Senior Counsel appearing for the vigilance submitted that submissions as also the prayer made on behalf of the petitioner is wholly misconceived as no restriction under Section 45(1-A) of the PML Act has been imposed on any other authority/investigating agency to proceed with the matter not related to the offence under the PML Act, rather the provision under the Act puts restriction upon a person, who is not empowered by the Central Government to investigate the offence under the PLM Act.
4
Learned counsel further submitted that submissions advanced on behalf of the petitioner that the scheduled offence including the offence under the Prevention of Corruption Act be tried by the Special Judge empowered under the PML Act along with the offence under the PML Act is wholly misconceived in view of the provision as enshrined under Section 4 of the Prevention of Corruption Act, 1988 as offence under the Prevention of Corruption Act and also other offences which can be tried along with the offence under the Prevention of Corruption Act is to be tried by the Special Judge appointed under the Prevention of Corruption Act and, therefore, the submission made on behalf of the petitioner is devoid of any merit and is fit to be rejected.
Having heard learned counsel appearing for the parties and on perusal of the record, it does appear that before institution of ECIR case, Vigilance had instituted the case as Vigilance P.S case no.26 of 2008 (Special Case no.32 of 2008) under Sections 406, 409, 420, 423, 424, 465/120B of the Indian Penal Code and also under Section 11/13(2) read with Section 13(1)(e) of the Prevention of Corruption Act. The Vigilance on investigating the case found the allegation, prima facie, true and, hence, submitted charge sheet on 5.10.2009, upon which Special Judge, Vigilance, Ranchi, empowered under the provision of the Prevention of Corruption Act, to try the cases under the Prevention of Corruption Act took cognizance of the offences as aforesaid against the petitioner, but before that, the Enforcement Directorate on 4.9.2009 did lodge a case against the petitioner and others for an offence under Section 3/ 4 of the PML Act and on this factual background, contention was raised that upon institution of the case under the PML Act, the Vigilance in view of the provision as enshrined under Section 45(!- A) of the PML Act should have stopped investigation but the Vigilance by ignoring that provision of law went on proceeding with 5 the investigation and submitted charge sheet, upon which cognizance was taken by the Special Judge appointed under Section 3 of the Prevention of Corruption Act and as such, the order taking cognizance is bad but I do not find any semblance of such contemplation under the provision as contained in Section 45(1-A) of the PML Act which reads as under:-
"45. Offences to be cognizable and non-bailable.
(1) ...................................
(1-A): 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 authorized, by the Central Government by a general or special order, and, subject to such conditions as may be prescribed."
The provision simply says that irrespective of the provision made in the Code of Criminal Procedure, no police officer in absence of any authorization by the Central Government shall investigate an offence under this Act . By using the words 'under this Act', the Legislature has made it abundantly clear that restrictions, if any, are there i.e. for the investigation under the PML Act and not any other Act and as such, any submission or contention raised that the charge sheet submitted by the Vigilance in Vigilance P.S. case no. 26 of 2008 (special case no.32 of 2008) is without any authority and the cognizance taken on that charge is bad, does not have any substance.
Coming to other submission made on behalf of the petitioner, it be reiterated that by referring the provision of Sections 43 and 44 of the PML Act, learned counsel appearing for the petitioner tried to impress upon the court that if an accused is being tried by special court constituted under the PML Act for an offence, then it is only the special court, who can try other offences including the scheduled offences along with the offence under the PML Act and not the other special court.
6The submission warrants reference of the aforesaid provision which reads as follows:
" 43. Special Courts - (1) ............................................
(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."
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 authorized in this behalf under this Act take cognizance of the offence for which the accused is committed to it for trial.
(2).............................................."
From the conjoint reading of sub-Section (2) of Section 43 and clause (a) of sub-Section (1) of Section 44, it does appear that Special Court constituted under the PML Act trying the accused for an offence under the PML Act may try the said accused, if he is charged for the Scheduled offence or any other offence under the Indian Penal Code. Though the provision does stipulate that it should be tried together but in the circumstances as contemplated under Section 44(1) (b) such stipulation cannot be said to be mandatory for the reason that it is not only the said recourse as contemplated under Section 44(1) (a) of the Act, which is to be taken by the Special Judge, rather other recourse as contemplated in sub-clause (b) of sub-Section (1) of Section 44 is also available the said provision does prescribe that Special Court may proceed with the trial for the offence under which he takes cognizance upon filing of a complaint. Both sub-clause (a) of sub-section (1) of Section 44 and sub-clause (b) of sub-section (1) of Section 44 has been separated with word 'or' which assumes much significance, 7 keeping in view the provision of sub-section (1) of Section 44 which says that the provision of this Act would be overriding effect of the provision of the Code of Criminal Procedure only. The sub-section (1) does not speak about the any other law whereas Section 4 of the Prevention of Corruption Act speaks that notwithstanding anything contained in the Code of Criminal Procedure or any other law for the time being in force, the offences under the Prevention of Corruption Act shall be tried by the Special Judge only.
For better appreciation, I may quote Section 4 which reads as follows:
"4. Cases triable by special Judges"-
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or in any other law for the time being in force, the offences specified in sub-section (1) of section 3 shall be tried by Special Judges only. (2) Every offence specified in sub-section (1) of section 3 shall be tried by the special Judge for the area within which it was committed, or, as the case may be, by the special Judge appointed for the case, or, where there are more special Judges than one for such area, by such one of them as may be specified in this behalf by the Central Government.
(3) When trying any case, a special Judge may also try any offence, other than an offence specified in section 3, with which the accused may, under the Code of Criminal Procedure, 1973 ( 2 of 1974), be charged at the same trial.
(4) Notwithstanding anything contained in the Code of Criminal procedure, 1973 (2 of 1974), a special Judge shall, as far as practicable, hold the trial of an offence on day-to-day basis."
Thus, in spite of the provision being there under sub-clause
(a) of sub-section (1) of Section 44 of the P.M.L. Act that the scheduled offence can be tried along with the offence under Section 4 of the Act by the Special Court but that does not seems to be mandatory in view of overriding effect of Section 4 of the Prevention of Corruption Act. It is only the Special Judge empowered under the provision of the Prevention of Corruption Act, who can try offence under the Prevention of Corruption Act along with other offences, if it is being charged in terms of the provision of 8 the Code of Criminal Procedure. Perhaps the Legislature by contemplating such situation has come with sub-clause (b) of sub- section (1) of Section 44 of the P.M.L. Act stipulating therein that the Special Court may proceed with the trial for the offence for which cognizance has been taken.
Thus, in the circumstances as stated above, it can never be said that the provision as contemplated under Section 44(1) (a) of the P.M.L. Act is mandatory so far trial of the offence under Section 4 with other scheduled offences is concerned rather that depends upon the situation. If the Special Court appointed under the Prevention of Corruption Act is seisin with the matter relating to scheduled offence, he may proceed with the trial of the said offences along with any other offences which under the Code of Criminal Procedure is triable in a same trial and the Special Court as appointed under the PML Act may proceed with the trial of offence under which cognizance has been taken. Where Special Court under the Prevention of Corruption Act is not in seisin with the matter relating to scheduled offence or offences giving rise to a case relating to the offence under Sections 3/4 of the PML Act. The Special Court appointed under the PML Act may proceed with the trial of the offence under section 4 as well as scheduled offence or any other offence which can be charged together in terms of the provision of the Code of Criminal Procedure.
Thus, I do not find any merit in the submission advanced in this respect. Hence, this writ application is dismissed.
(R.R.Prasad, J.) ND/