Bombay High Court
Directorate Of Enforcement vs The State Of Maharashtra And Ors on 14 December, 2020
Author: Revati Mohite Dere
Bench: Revati Mohite Dere
Digitally
signed by
Shagufta Shagufta Q.
Pathan
Q. Date: 30-wp-st-3122-2020.doc
Pathan 2020.12.22
11:52:13
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION (STAMP) NO. 3122 OF 2020
Directorate of Enforcement,
Through Assistant Director,
Department of Revenue,
Ministry of Finance,
Government of India,
Mumbai Zonal Office-II,
Having office at Gr. Floor, Kaiser Hind,
Currimbhoy Road, Ballard Estate,
Mumbai - 400 001 ...Petitioner
Versus
1. The State of Maharashtra
At the instance of M.R.A Marg,
Near Haj House, MRA Marg P.S.,
Mumbai
2. Akbar Travels (India) Pvt. Ltd.,
69/71, Janjikar Street,
Near Crawford Market,
Fort, Mumbai
3. M/s. Jet Airways (India) Limited,
Siroya Centre, Sahar Airport Road,
Andheri East, Mumbai - 99, India
4. Naresh Kumar Goyal,
S/o Late Jagdish Rai,
72, Jupiter Apartment, Anstey Road,
Off Altamount Road, Mumbai
5. Anita Naresh Goyal,
W/o. Naresh Kumar Goyal,
72, Jupiter Apartment, Anstey Road,
Off Altamount Road, Mumbai ...Respondents
SQ Pathan 1/25
30-wp-st-3122-2020.doc
Mr. Anil Singh, ASG with Mr. Aditya Thakkar and Mr. Shreeram Shirsat
for the Petitioner
Mr. Raja Thakare, Spl. P.P. with Mr. Akash Kavade, Mr. Siddharth
Jagushte, Mr. Deepak Thakre, P.P. and Ms. P. P. Shinde, A.P.P for the
Respondent No.1-State
Mr. Akhilesh S. Dubey with Mr. Vagish Mishra, Mr. Dharmesh S. Joshi,
Mr. Parag T. Joshi, Mr. Amit Dubey, Mr. Uttam Dubey and Mr. Rajuram
Kuleriya i/b T. D. Joshi & Associates for the Respondent No. 2
Mr. Aabad H. Ponda, Sr. Advocate with Mr. Samsher Garud and Ms. Juhi
Valia i/b Jayakar & Partners for the Respondent No. 4
Mr. Pranav Badheka with Mr. Samsher Garud and Ms. Juhi Valia i/b
Jayakar & Partners for the Respondent No. 5
CORAM : REVATI MOHITE DERE, J.
RESERVED ON : 24th NOVEMBER 2020
PRONOUNCED ON : 21st DECEMBER 2020
(THROUGH VIDEO CONFERENCING)
ORDER :
1 By this petition preferred under Article 227 of the Constitution of India and 482 of the Code of Criminal Procedure (`Cr.P.C.'), the petitioner-Directorate of Enforcement (`ED') seeks quashing and setting aside of the impugned order dated 19th September 2020 passed by the learned Additional Chief Metropolitan Magistrate, 38th Court, Ballard Pier, SQ Pathan 2/25 30-wp-st-3122-2020.doc Mumbai below Exhibit 6, by which the learned Magistrate rejected the petitioner's application seeking to intervene in the closure report filed by the respondent No.1-State of Maharashtra in the Court of the learned Magistrate, as well as the order dated 15 th October 2020 passed by the learned Additional Sessions Judge, Greater Mumbai in Criminal Revision Application No. 400 of 2020.
2 The short question that arises in the aforesaid petition is, the locus of the petitioner-ED in a closure report filed by the State of Maharashtra before the Magistrate, in a case registered at the behest of respondent No.2-Akbar Travels (India) Pvt. Ltd.
3 A few facts as are necessary to decide the aforesaid petition, are as under :
The respondent No. 2-Akbar Travels (India) Pvt. Ltd. filed a private complaint in the Court of the learned Metropolitan Magistrate at Ballard Pier, Mumbai, alleging offences punishable under Sections 120-B, 420, 467 and 471 of the Indian Penal Code (`IPC') as against the respondent No. 3-M/s. Jet Airways (India) Ltd. and its directors i.e. respondent No. 4-Naresh Goyal and respondent No. 5-Anita Goyal.SQ Pathan 3/25
30-wp-st-3122-2020.doc According to the respondent No. 2, during the period 2018- 2019, they had done business of more than Rs. 900 Crores with respondent No. 3. It is alleged that as per the Contract Agreement, respondent No. 3 was liable to pay Rs. 21,31,08,000/- along with CGST to the respondent No. 2. According to the respondent No. 2, they had made an advance air-
ticket booking of Rs. 23,87,44,511/- for respondent No. 3 and the same was also due from the said respondent. In addition, TDS, OPC (Optional Payment Charges), OC (Optional Charges) on advance booking of Rs. 87,15,525/- was also due from respondent No. 3. Thus, it is the respondent No. 2's case that a total of Rs. 46,05,68,036/- was to be paid by the respondent No. 3. As respondent No. 2 did not receive payments despite being promised, the respondent No. 2 filed a private complaint alleging that respondent Nos. 3 to 5 had cheated them and that despite knowing the real financial crisis of respondent No. 3, respondent No. 4 made false promises and willfully induced respondent No. 2 to book tickets on behalf of respondent No. 3. Pursuant to the private complaint filed by respondent No. 2 in the Court of the learned Metropolitan Magistrate, the learned Judge passed an order under Section 156(3) Cr.P.C on 15 th February 2020. Pursuant to the said order, respondent No. 1-State of Maharashtra registered an FIR as against the respondent Nos. 3 to 5 alleging offences punishable under Sections 406, 420, 465, 467, 468, 471 and 120-B of the SQ Pathan 4/25 30-wp-st-3122-2020.doc IPC. The said FIR was registered on 18 th February 2020, vide C.R. No. 66 of 2020 with the M.R.A. Marg Police Station, Mumbai.
Pursuant to the registration of the aforesaid FIR with the M.R.A. Marg Police Station, the petitioner-ED registered an ECIR on 20 th February 2020 under the Prevention of Money Laundering Act (`PMLA'), Sections 120-B, 420, 467 and 471 of IPC being scheduled offences under paragraph 1 of Part A of the Schedule to the PMLA. The ED also commenced with the investigation under the Foreign Exchange Management Act (FEMA) as against respondent Nos. 3 to 5. On 9 th March 2020, the respondent No. 1 filed its closure report in the Court of the learned Metropolitan Magistrate. The respondent No.2-Akbar Travels (India) Pvt. Ltd. forwarded a copy of the said closure report to the petitioner's office on 11th June 2020 via email. The respondent No. 2-
Akbar Travels (India) Pvt. Ltd. filed a Protest Petition before the learned Magistrate. On 15th June 2020, the petitioner-ED also filed its Protest Petition in the Court of the learned Metropolitan Magistrate. According to the petitioner, the respondent No. 1-State had not conducted the investigation in a proper manner. In the said Protest Petition, the petitioner prayed that the closure report filed by the respondent-State may not be accepted and a suitable direction may be issued to carry out further SQ Pathan 5/25 30-wp-st-3122-2020.doc investigation in the case, including into the undisclosed accounts and assets of respondent No. 3 and its family members and the related entities and all their transactions with respondent No. 3 i.e. M/s. Jet Airways (India) Ltd. The said Protest Petition filed by the petitioner (Exhibit 6) was rejected by the learned Metropolitan Magistrate, Mumbai, vide order dated 19 th September 2020, after observing that the petitioner had no locus standi to intervene, especially when the informant-complainant himself was appearing in the case.
Being aggrieved by the said order, the petitioner filed a revision application before the learned Additional Sessions Judge, Mumbai being Criminal Revision Application No. 400 of 2020. The learned Additional Sessions Judge, Mumbai, vide order dated 15 th October 2020 dismissed the revision application, on the ground of maintainability as well as on merits. Being aggrieved by the said orders, the petitioner has approached this Court by way of the aforesaid petition. 4 Learned ASG Mr. Anil Singh, appearing for the petitioner submitted that the Protest Petitions were recognized by the Apex Court in the case of Bhagwat Singh vs. Commissioner of Police & Anr 1. He 1 (1985) 2 SCC 537 SQ Pathan 6/25 30-wp-st-3122-2020.doc submitted that no doubt, the informant/complainant is entitled to a notice and to be heard, nonetheless, the Apex Court has also recognized the right of an injured person/interested/aggrieved person to be heard. He submitted that the petitioner would fall in the category of the term `victim/interested person/aggrieved person', thus having locus to be heard before the learned Magistrate before any order is passed on the closure report. He submitted that during the investigation under the PMLA, the petitioner has found transfer of funds from India to foreign banks by the respondent Nos. 3 to 5 and as such the money having been diverted from India to foreign banks being proceeds of crime, the petitioner ought to have been heard by the learned Magistrate. He submitted that the petitioner in its Protest Petition filed before the learned Magistrate has placed on record the investigation done by them i.e. all transfer of funds from Indian banks to foreign banks and diversion of money, which factors have not been considered by the respondent No.1-State. He submitted that the petitioner should be construed as an injured person and as such relied on the term `victim' as defined under Section 2(wa) Cr.P.C. He submitted that as a result of money laundering, the Country/Government has suffered huge losses which would have been available to the public and as such the Government is directly affected by the said tax evasion. He submitted that there are about 20,000 creditors who have also been affected and that the respondent No.1-State SQ Pathan 7/25 30-wp-st-3122-2020.doc has not considered the said aspects nor investigated the said angle. He submitted that being an offence against the society, the petitioner be considered as an injured person, thus falling within the definition of the term `victim'. He submitted that there are several deficiencies in the investigation carried out by the respondent No.1-State and as such it is incumbent on the petitioner, being a Government Agency, to bring the same to the notice of the learned Magistrate. Learned ASG also submitted that the learned Sessions Judge, once having held that the revision was not maintainable, ought not to have gone into the merits of the case with respect to the locus standi of the petitioner. He further submitted that even the learned Magistrate has not considered the petitioner's locus standi in its proper perspective, having regard to the judgments relied upon by the petitioner.
5 Mr. Singh, learned ASG relied on the judgments in the case of Sheonandan Paswan vs. State of Bihar & Ors. (Supreme Court) 2; R. Dharmalingam vs. State & Ors. (Madras High Court) 3; Sudipta Sen vs. The State of West Bengal (Calcutta High Court) 4; Abhinandan Jha & Ors. vs. Dinesh Mishra (Supreme Court) 5; Ratanlal vs. Prahlad Jat & 2 (1987) 1 SCC 288 3 2020 Cri.L.J. 1300 4 Laws (Cal) 2000-9-68 5 Manu/SC/0054/1967 SQ Pathan 8/25 30-wp-st-3122-2020.doc Ors.6; A. R. Antulay vs. R. S. Nayak (Supreme Court) 7; Y. S. Jagan Mohan Reddy vs. Central Bureau of Investigation 8; Gautam Kundu vs. Manoj Kumar9, Hasan Ali Khan vs. Union of India10, P. Chidambaram vs. Directorate of Enforcement11, Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur & Ors. vs. State of Gujarat & Anr. 12, in support of his submission.
6 Mr. Dubey, learned counsel for the respondent No.2/original complainant adopted the submissions advanced by the learned ASG Learned counsel relied on the judgment of the Apex Court in Nahar Singh Yadav & Anr. vs. Union of India & Ors. 13, in particular, para 19 of the said judgment to show that "a party interested" can be permitted to intervene in proceedings. He submitted that the petitioner-ED, being a responsible agency, must be permitted to intervene, as the economy of the country is affected.
7 Mr. Raja Thakare, Spl. P.P appearing for the respondent-State submitted that the petitioner-ED would neither fall within the definition of 6 Manu/SC/1202/2017 7 (1984) 2 SCC 500 8 LAWS (SC)-2013-5-29 9 LAWS (SC)-2015-12-46 10 Bail Application No. 994/2011 dated 1.8.2011 11 Appeal No. 1340/2019 dated 5.9.2019 12 Appeal No. 1723/2017 dated 4.10.2017 13 (2011) 1 SCC 307 SQ Pathan 9/25 30-wp-st-3122-2020.doc the term `victim' as defined under Section 2(wa) of the Cr.P.C nor could be termed as an aggrieved/injured/interested person. Learned Spl. P.P also relied on the judgment of Bhagwat Singh (supra) and Gangadhar Janardan Mhatre vs. State of Maharashtra & Ors.14 in support of his submission. He submitted that it is the duty of the State to ensure that no accused goes scot-free. He submitted that the police have investigated the case on the basis of the material collected by them during investigation and have filed its closure report. He submitted that the closure report is yet to be accepted by the learned Magistrate. According to Mr. Thakare, Spl. P.P, the petitioner is not a supervisory authority over the police and as such, has no locus standi in law to intervene in the closure proceedings pending before the Magistrate. He submitted that whether the investigation has been conducted properly or not, is a matter to be decided by the Magistrate and that the Magistrate is competent to decide the same. 8 Mr. Ponda, learned senior counsel for the respondent No. 4 submitted that the petitioner has no locus to intervene in the closure report filed by the respondent No.1-State under Section 169 Cr.P.C. He submitted that there is no provision in law which permits a Magistrate to allow a third party like the petitioner-ED to intervene in proceedings under Section 169 14 (2004) 7 SCC 768 SQ Pathan 10/25 30-wp-st-3122-2020.doc Cr.P.C and that the Magistrate is bound to follow the provisions of Cr.P.C and the precedents. He submitted that the subordinate judiciary unlike Civil Courts have no inherent powers and that the inherent powers under Section 482 vest only with the High Courts and the Supreme Court. In this regard, learned senior counsel placed reliance on the judgment of the Apex Court in the case of Major General A. S. Gauraya & Anr. vs. S. N. Thakur & Anr.15, wherein the Apex Court had the occasion to address the question whether a subordinate criminal court has any inherent jurisdiction outside the provisions of the Cr.P.C, and had answered the same in the negative. Learned senior counsel does not dispute the propositions laid down in the various judgments relied upon by the learned ASG, however, submits that the same will not apply to the facts in hand. He submitted that as per the law laid down in the case of Bhagwat Singh (supra), only three categories of persons are permitted to intervene/can be heard i.e. (i) the complainant or informant is entitled to a notice; (ii) an injured is entitled to be heard; and
(iii) an heir of the deceased can also be heard in a case. 9 Mr. Ponda submitted that the petitioner, by no stretch of imagination, would fall within the definition of the term `victim' and cannot 15 (1986) 2 SCC 709 SQ Pathan 11/25 30-wp-st-3122-2020.doc be covered by Section 2(wa) of the Cr.P.C. He submitted that the petitioner- ED can neither be a victim nor an injured. In this context, learned senior counsel relied on the judgment of the Division Bench of this Court in Mahendrasinh Jorubha Zala vs. Central Bureau of Investigation & Ors.16, wherein, the definition of the term `victim' was considered. Learned senior counsel submitted that reliance placed by the learned ASG on Abhinandan Jha (supra), in particular, para 19, wherein there is a reference to Section 190(1)(c) Cr.P.C, has been corrected and noted in a subsequent judgment i.e. in the case of H.S. Bains vs. State (para 7)17, wherein, it is stated that the reference to Section 190(1)(c) in Abhinandan Jha (supra) was a mistake/error and that the same should be read as 190(1)
(b). In conclusion, he submitted that there being no provision of law nor any precedent in support of the petitioner's claim, the petitioner cannot be permitted to intervene in a closure report filed by the respondent No.1-State. Mr. Ponda also relied on Harsh Mandar vs. Amit Anilchandra Shah & Ors.18, J. K. International vs State Government of Delhi19 and Debasish Bose & Anr. vs. State of West Bengal & Anr.20 in support of his submission.
16 Criminal Appeal No. 970/2019 dated 5.8.2019 17 (1980) 4 SCC 631 18 (2017) 13 SCC 420 19 (2001) 3 SCC 462 20 2015 CRLJ 2252 SQ Pathan 12/25 30-wp-st-3122-2020.doc 10 Mr. Badheka, learned counsel appearing for the respondent No. 5 adopted the submissions advanced by Mr. Ponda. He submitted that in A. R. Antulay's case (supra), the locus was with respect to initiation of proceedings, which is not the case in the present proceedings. He submitted that FEMA proceedings have already been initiated against respondent Nos. 4 and 5. He submitted that the petitioner-ED not being a victim/injured, cannot be permitted to intervene/file Protest Petition in a closure report filed by the State of Maharashtra i.e. the agency investigating the case in hand. He submitted that the respondent No. 2-original complainant has already filed his Protest Petition and it is for the Magistrate Court to decide the closure report filed by the respondent No.1-State of Maharashtra and the protest petition filed by the respondent No. 2-Akbar Travels (India) Pvt. Ltd., after hearing the necessary parties having locus before the said Court, by passing appropriate orders on the same.
11 Having heard learned ASG for the petitioner and the learned counsel for the respondents and having perused several judgments relied upon by the respective parties, the answer to the question raised in the aforesaid petition, with respect to the locus of the petitioner-ED in a closure report filed by the respondent No. 1-State of Maharashtra in a case SQ Pathan 13/25 30-wp-st-3122-2020.doc registered at the behest of respondent No.2-Akbar Travels (India) Pvt. Ltd. is, in the negative, for the reasons set out hereinunder. 12 Admittedly, the respondent No. 2-Akbar Travels (India) Pvt. Ltd. filed a private complaint as against respondent Nos. 3 to 5 in the Court of the learned Metropolitan Magistrate at Ballard Pier, Mumbai, praying therein for an order under Section 156(3) Cr.P.C. The learned Magistrate was pleased to pass an order under Section 156(3), pursuant to which, the M.R.A Marg Police Station registered an FIR being C.R. No. 66 of 2020 as against respondent Nos. 3 to 5 for the alleged offences punishable under Sections 406, 420, 465, 467, 468, 471 and 120-B of the IPC. The said offences being scheduled offences under the PMLA, the petitioner-ED registered an ECIR as against the respondent Nos. 3 to 5 under the PMLA and proceeded with its investigation. In the meantime, the respondent- State, after investigation, filed its closure report (in C.R. No. 66 of 2020), in the Court of the learned Magistrate. It is not in dispute that pursuant to the notice issued by the learned Magistrate, the respondent No.2/complainant-Akbar Travels (India) Pvt. Ltd. filed a Protest Petition before the learned Magistrate. It appears that the petitioner-ED, on being informed by the respondent No.2 about the closure report, also filed a Protest Petition before the learned Magistrate and prayed that they be heard SQ Pathan 14/25 30-wp-st-3122-2020.doc before any order could be passed on the closure report filed by the respondent No.1-State. As noted above, the learned Magistrate rejected the said Protest Petition filed by the petitioner-ED, which was challenged by the petitioner before the learned Sessions Judge. Learned Sessions Judge dismissed the revision application both on the ground of maintainability as well as on merits.
13 From a perusal of the judgments of the Apex Court, in particular, the judgment in Bhagwat Singh (supra), it is evident that there are three categories of persons who have locus and who can be heard before the closure report is accepted i.e. (i) the complainant/first informant is entitled to a notice and to be heard; (ii) injured person and (iii) relative of the deceased, to whom the Magistrate may not issue notices but have locus to appear before the Magistrate and a right to be heard. However, the discretion of giving notice to the injured person or relative of the deceased vests with the Magistrate. In this context, it would be apposite to reproduce the relevant paragraphs in the case of Bhagwat Singh (supra):
"4. ............ We are accordingly of the view that in a case where the magistrate to whom a report is forwarded under sub- section (2)(i) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the magistrate must give notice to the informant and provide him an opportunity to be heard SQ Pathan 15/25 30-wp-st-3122-2020.doc at the time of consideration of the report. It was urged before us on behalf of the respondents that if in such a case notice is required to be given to the informant, it might result in unnecessary delay on account of the difficulty of effecting service of the notice on the informant. But we do not think this can be regarded as a valid objection against the view we are taking, because in any case the action taken by the police on the First Information Report has to be communicated to the informant and a copy of the report has to be supplied to him under sub-section (2)(i) of Section 173 if that be so, we do not see any reason why it should be difficult to serve notice of the consideration of the report on the informant. Moreover, in any event, the difficulty of service of notice on the informant cannot possibly provide any justification for depriving the informant of the opportunity of being heard at the time when the report is considered by the Magistrate.
5. The position may however, be a little different when we consider the question whether the injured person or a relative of the deceased, who is not the informant, is entitled to notice when the report comes up for consideration by the Magistrate. We cannot spell out either from the provisions of the Code of Criminal procedure, 1973 or from the principles of natural justice, any obligation on the Magistrate to issue notice to the injured person or to a relative of the deceased for providing such person an opportunity to be heard at the time of consideration of the report, unless such person is the informant who has lodged the First Information Report. But even if such person is not entitled to notice from the Magistrate, he can appear before the Magistrate and make his submissions when the report is considered by the Magistrate for the purpose of deciding what action he should take on the report. The injured person or any relative of the deceased, though not entitled to notice from the Magistrate, has locus to appear before the Magistrate at the time of consideration of the report, if he otherwise comes to know that the report is going to be considered by the Magistrate and if he wants to make his submissions in regard to the report, the Magistrate is bound to hear him. We may also observe that even though the Magistrate is not bound to give notice of the hearing fixed for consideration of the report to the injured person or to any relative of the deceased, he may, in the exercise of his discretion, if he so thinks fit, give such notice to the injured person or to any particular relative or relatives of the deceased, but not giving of such notice will not have any invalidating effect on the order which may be made by the Magistrate on a consideration of the report."SQ Pathan 16/25
30-wp-st-3122-2020.doc 14 It is thus evident that an informant/complainant is entitled to a notice before any orders are passed on the closure report by the Magistrate, whereas, an injured or in case of death, the relative of the deceased can be heard, even without notice i.e. in cases where the police file a closure report, or a `C' summary report in respect of a complaint. Thus, the three categories of persons whose `locus' has been recognized are the complainant, injured persons or the relatives/heirs of the deceased. 15 The term `victim' is defined under Section 2(wa) of Cr.P.C and was inserted by the Criminal Law Amendment Act 5 of 2009 w.e.f. 31st December 2009. The said term `victim' reads as under :
"2(wa) : "victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim"
includes his or her guardian or legal heir."
16 A Division Bench of this Court (Coram : Indrajit Mahanty (as he then was) and A. M. Badar, JJ.) in the case of Mahendrasinh Jorubha Zala (supra), whilst considering the definition of the term `victim' observed in paras 11 and 12 as under :
SQ Pathan 17/25
30-wp-st-3122-2020.doc "11 Now let us examine who can be said to be a victim competent to prefer an appeal challenging acquittal under Section 372 of the Cr.P.C. Section 2(wa) of the Cr.P.C. defines the term victim. It reads thus :
"2(wa) "victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim" includes his or her guardian or legal heir."
(emphasis supplied) In the matter of Manoj Kumar Singh (supra) the Full Bench of the Allahabad High Court, in paragraph 54, has interpreted this definition of the term victim and it reads thus:
"54 In nutshell, it can be concluded that victim means the actual sufferer of offence (receiver of harm caused by the alleged offence) and no person other than actual receiver of harm can be treated as victim of offence, so as to provide him/ her a right to prefer appeal under the proviso of Section 372. In absence of the direct sufferer or in a case where the direct sufferer suffers a disability his or her legal heir or guardian would qualify as a victim.
In the matter of Uday Bhan (supra) following are the observations of the Madhya Pradesh High Court found in paragraphs 7 and 8. They read thus :
"7 In view of the above, it is evident that "victim"
who is the ultimate sufferer in the commission of a crime has been given recognition as an aggrieved party by introducing the abovesaid amendment in Cr.P.C. There is no manner of doubt that right from the occurrence of the incident till the decision of trial, appeal or revision, till the highest court of law, the "victim" is as much interested in the decision as is the accused or the State. Infact, the "victim" on account of being the injured person and the sufferer, deserves to SQ Pathan 18/25 30-wp-st-3122-2020.doc be recognized as the most aggrieved party in a crime. It is a happy state of affairs that the stand of the victim are now vindicated in shape of amendment in the Cr.P.C."
"8 This court has, thus, no hesitation to hold that the victim is an aggrieved person not only in a crime, but also in an investigation, enquiry, trial, appeal, revision, review and also the proceedings by which the inherent powers of this court under Section 482, Cr.P.C. are invoked."
12 It is, thus, clear that victim is a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged. Thus, whether a person is a victim or not, is required to be judged qua the Charge framed against the accused persons in the concerned trial, in the light of averments made in the chargesheet filed by the prosecuting agency. The Charge framed by the trial court against the accused must be in respect of that act of the accused, by which the victim has actually suffered any loss or injury. ................................."
17 The petitioner-ED claims to be an injured/a victim, in a representative capacity of the victims. According to the petitioner-ED, the ED being a victim of economic offences, which are serious in nature, having large repercussions on the economy of a country, would have locus to be heard before the closure report is accepted. According to the petitioner-ED, the offence being a crime against the Society, it is its duty to ensure that the culprits are properly prosecuted. Learned ASG submitted that the petitioner-ED would fall in the category of interested person, as the SQ Pathan 19/25 30-wp-st-3122-2020.doc agency i.e. ED is not only entrusted in bringing the offenders to book, but is also entrusted with the task of ensuring that money laundering does not take place. He further submitted that the petitioner-ED, being intrinsically interested in the outcome of the FIR, is entitled to be heard before the closure report is accepted. Reliance placed by the learned ASG on the observations in the judgments relied upon, stating the object and reasons for enacting the PMLA, cannot be disputed. However, the judgments relied upon, have no bearing in the facts of the case, inasmuch as, the said judgments pertain to rejection of bail under the PMLA. Having considered the law in this regard, the petitioner-ED, by no stretch of imagination, can either be construed to be a victim or an aggrieved/injured/interested person, thus entitling them to be heard before the Magistrate decides whether the closure report ought to be accepted or not. The respondent No. 1-State of Maharashtra is the investigating agency in the present case, who has filed the closure report in a case instituted by the respondent No. 2-Akbar Travels (Idia) Pvt. Ltd. The petitioner-ED is not a supervisory authority over the respondent No. 1- State, who has investigated the case. Take a hypothetical example, a converse situation. If in a given case, any other investigating agency feels that the Enforcement Directorate has not investigated a case properly, can the said investigating agency intervene in the investigation carried out by the Enforcement Directorate? Can they be SQ Pathan 20/25 30-wp-st-3122-2020.doc permitted to do so? The obvious answer is `NO'. Each investigating agency is expected to investigate the case before it, fairly on the basis of the material gathered by them during investigation and thereafter submit its report. No investigating agency can claim supervisory jurisdiction over the other in the matter of investigation. In the present case, the Magistrate is yet to pass orders on the closure report. It is for the Magistrate, after hearing the parties, to consider whether to accept the closure report or not or to direct further investigation or issue process. The respondent No.2- complainant is contesting the closure report by filing a protest petition. 18 The petitioner-ED is an independent investigating agency, empowered to investigate offences under the PMLA and FEMA and in the facts, cannot be termed as a victim or aggrieved/injured/interested person, having regard to the judicial pronouncements. There is no provisions in law which supports the claim of the petitioner-ED with respect to its locus to intervene and contest the closure report filed by the respondent No.1- State. Thus, the petitioner cannot be permitted to intervene and contest in the closure report filed by the respondent No.1-State. 19 It may also be noted that the Magistrates, unlike Civil Courts, have no inherent powers under Section 151 of the Civil Procedure Code. SQ Pathan 21/25
30-wp-st-3122-2020.doc The inherent jurisdiction under Section 482 vests only with the High Courts and the Supreme Court. The Apex Court in Major General A. S. Gauraya (supra), whilst considering the question whether a subordinate criminal Court has any inherent jurisdiction outside the provision of the Cr.P.C has answered the same in the negative. Thus, it is clearly evident that Magistrates having no inherent powers cannot entertain applications/ petitions from any person other than a victim/complainant/injured person or relative of the deceased, as stated hereinabove.
20 Reliance placed by Mr. Dubey appearing for respondent No. 2 in the case of Nahar Singh Yadav (supra) is also misplaced. In the said case, the Supreme Court was dealing with Section 406(2) Cr.P.C i.e. power of Supreme Court to transfer cases and appeals. In the said case, the CBI was considered to be an interested party. The powers of Section 406 Cr.P.C cannot be equated with the facts of the present case, inasmuch as, the term `interested party' does not find place in the definition of the term `victim' as defined under Section 2(wa) Cr.P.C or in the judgments referred to hereinabove. Hence, reliance placed on the said judgment is misplaced. 21 Reliance placed by the learned ASG on the judgment of the Apex Court in the case of Sheonandan Paswan (supra), is also misplaced. SQ Pathan 22/25
30-wp-st-3122-2020.doc It is pertinent to note that the observations made in para 14 with respect to the issue of locus to withdraw prosecution, on which reliance is placed by the learned ASG is the minority view of the Judges, whereas, the majority judgment had not adhered to the same and the same is evident from para 36 of the said judgment. Infact, this Court in the case of Harsh Mandar (supra) has categorically taken a view after referring to Sheonandan Paswan (supra) that the said judgment is restricted in its applicability to Section 321 Cr.P.C. It is not in dispute that the said judgment i.e. Harsh Mandar's case (supra) has been upheld by the Apex Court. As far as the other judgments relied upon by the learned ASG in support of his submission to show that the petitioner has locus, pertain to cases where the wife or the brother's right has been recognized. Some judgments pertain/relate to actual de facto complainant who were the aggrieved persons. Thus, the said cases are clearly distinguishable and reliance on the same is clearly misplaced.
22 Similarly, reliance paced on the judgment of Abhinandan Jha (supra), in particular para 19, where there is a reference to Section 190(1)
(c) Cr.P.C, to show that petitioner has 'locus' to intervene is also misplaced, inasmuch as, the Apex Court in H.S. Bains (supra) has noted that the SQ Pathan 23/25 30-wp-st-3122-2020.doc reference to Section 190(1)(c) in Abhinandan Jha (supra) was a mistake/error and that the same should be read as 190(1)(b). 23 As far as the submission of the learned ASG with respect to the observations made by the Sessions Judge on merits is concerned, there is some substance in the same, inasmuch as, once the learned Sessions Judge having held that the revision application was not maintainable, ought not to have traversed into the merits of the case. As far as the learned Magistrate's order is concerned, the learned Magistrate ought to have decided the locus of the petitioner-ED in the closure report filed by the respondent No. 1-State of Maharashtra, instead of observing that the offence pertaining to PMLA is to be decided by a different Court. Be that as it may, I have, in detail, considered the locus of the petitioner-ED to intervene in a closure report filed by the respondent No. 1-State of Maharashtra before the Magistrate and have recorded the reasons hereinabove.
24 The petition, being devoid of merit, is dismissed and accordingly disposed of.
SQ Pathan 24/25
30-wp-st-3122-2020.doc 25 All concerned to act on the copy of this order, digitally signed by the Senior Private Secretary of this Court.
REVATI MOHITE DERE, J.
26 At this stage, Mr. Shirsat, learned counsel for the petitioner-ED seeks stay of this order. The request for stay is rejected.
REVATI MOHITE DERE, J.
SQ Pathan 25/25