Delhi High Court - Orders
P. Chidambaram vs Directorate Of Enforcement on 20 November, 2024
Author: Manoj Kumar Ohri
Bench: Manoj Kumar Ohri
$~54
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 8996/2024
P. CHIDAMBARAM .....Petitioner
Through: Mr. N. Hariharan, Sr. Advocate with
Mr. Arshdeep Singh Khurana, Mr.
Akshat Gupta, Mr. Harsh Srivastava,
Mr. Sidak Singh Anand, Ms. Punya
Rekha Angara, Mr. Aman Akhtar,
Ms. Sana Singh, Ms. Kashish Ahuja,
Mr. Ayush Kumar Singh, Ms.
Vasundhara N., Mr. Vinayak Gautam
and Mr. Faiz Qureshi, Advocates.
versus
DIRECTORATE OF ENFORCEMENT .....Respondent
Through: Mr. Zoheb Hossain, Spl. Counsel for
ED with Mr. Vivek Gurnani, Panel
Counsel, Mr. Kartik Sabharwal, Mr.
Suradhish Vats and Mr. Kunal
Kochar, Advocates.
CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
ORDER
% 20.11.2024 CRL.M.A. 34427/2024 1. Allowed, subject to all just exceptions. 2. Application is disposed of. CRL.M.C. 8996/2024
1. By way of present petition, the petitioner seeks to assail the order dated 27.11.2021 passed by Special Judge (PC Act) (CBI-09), Rouse This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/11/2024 at 22:27:29 Avenue Court, New Delhi in CT Case No. 18/2019. Vide the impugned order, the Special Judge had taken cognizance of the offence under Section 3 read with Section 4 of the PMLA, 2002 qua the petitioner and other accused persons.
2. Issue Notice.
3. Mr. Zoheb Hossain, learned Special Counsel for the respondent accepts notice and seeks time to file detailed reply.
4. List on 22.01.2025.
CRL.M.A. 34426/20241. Mr. Hariharan, learned Senior Counsel on behalf of the petitioner while placing reliance on the recent decision of Supreme Court in Enforcement Directorate v. Bibhu Prasad Acharya, reported as 2024 SCC OnLine SC 3181 submits that in absence of sanction, the continuation of proceedings before the Trial Court is illegal. He submits that the Supreme Court has reiterated that in case of public servant, the obtainment of prior sanction under Section 197(1) Cr.P.C. is mandatory and cognizance taken by the trial court is thus contrary to the settled legal position. Referring to the aforesaid decision, he further submits that the issue of sanction being centric to continuation of trial, can be raised at any stage. Additionally, reliance is placed on the decisions in Prakash Singh Badal & Anr. v. State of Punjab & Ors., reported as (2007) 1 SCC 1; and P.K. Pradhan v. State of Sikkim, reported as (2001) 6 SCC 704.
On merits it is stated that as per the prosecution case, the allegation pertaining to the petitioner are that he violated the Rules and guidelines to grant approval for foreign investment to GCSH for an amount which was beyond his empowered limits. He contends that the offence alleged was This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/11/2024 at 22:27:29 committed while the petitioner was discharging his official duties. It is also submitted that the CBI while investigating the predicate offence had obtained prior sanction both under Section 197(1) Cr.P.C. and Section 19 of the PC Act, 1988 at the time of filing the charge sheet.
2. Mr. Zoheb Hossain while disputing the submissions made on behalf of the petitioner contends that in view of the offence alleged, no prior sanction was required to proceed against the present petitioner. The petitioner's submission that CBI while filing the chargesheet had obtained prior sanction is not disputed. He seeks time to file a detailed reply in this regard.
3. I have heard learned Senior Counsel for the petitioner as well as the learned Special Counsel for the respondent agency.
4. The issue whether cognizance of an offence under Section 3, punishable under Section 4 PMLA, can be taken against the accused, a public servant, without obtaining previous sanction under Section 197(1) CrPC has been considered by Supreme Court in Bibhu Prasad Acharya (Supra) wherein after examining the scheme of CrPC and PMLA and holding that Section 197 CrPC applies to proceedings under PMLA, the order taking cognizance was set aside. The relevant observations are extracted hereunder:
"15. We have carefully perused the allegations against the respondents in the complaint. The allegation against the second respondent is of allocating an additional 10 lakh litres of water to India Cement Ltd. Taking the averments made in the complaint against him as it is, the act alleged against him has been committed by him while purporting to act in the discharge of his official duties. The allegation against the first respondent is of the allotment of land measuring 250 acres to M/s. Indu Tech Zone Private Ltd. Taking the averments made in the complaint as correct, the act alleged against him has been done by him purporting to act in the discharge of his official duties. In the case of both respondents, This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/11/2024 at 22:27:30 the acts alleged against them are related to the discharge of the duties entrusted to them. It is not even the allegation in the complaints that the two respondents were not empowered to do the acts they have done. There is a connection between their duties and the acts complained of. The second condition for the applicability of Section 197(1) also stands satisfied, and therefore, in this case, Section 197(1) of CrPC applies to the respondents, assuming that Section 197(1) of CrPC applies to the proceedings under the PMLA.
16. As far as the applicability of Section 197 of CrPC to the PMLA is concerned, there are two relevant provisions in the form of Section 65 and 71 of the PMLA which read thus:
"65. Criminal Procedure Code, 1973 to apply.-- The provisions of the Criminal Procedure Code, 1973 (2 of 1974) shall apply, in so far 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."
"71. Act to have overriding effect.-- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force."
17. Section 65 makes the provisions of the CrPC applicable to all proceedings under the PMLA, provided the same are not inconsistent with the provisions contained in the PMLA. The words „All other proceedings‟ include a complaint under Section 44 (1)(b) of the PMLA. We have carefully perused the provisions of the PMLA. We do not find that there is any provision therein which is inconsistent with the provisions of Section 197(1) of CrPC. Considering the object of Section 197(1) of the CrPC, its applicability cannot be excluded unless there is any provision in the PMLA which is inconsistent with Section 197(1). No such provision has been pointed out to us. Therefore, we hold that the provisions of Section 197(1) of CrPC are applicable to a complaint under Section 44(1)(b) of the PMLA.
18. Section 71 gives an overriding effect to the provisions of the PMLA notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Section 65 is a prior section which specifically makes the provisions of the CrPC applicable to PMLA, subject to the condition that only those provisions of the CrPC will apply which are not inconsistent with the provisions of the PMLA. Therefore, when a particular provision of CrPC applies to proceedings under the PMLA by virtue of Section 65 of the PMLA, Section 71 (1) cannot override the provision of CrPC which applies to the PMLA. Once we hold that in view of Section 65 of the PMLA, Section 197(1) will apply to the provisions of This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/11/2024 at 22:27:30 the PMLA, Section 71 cannot be invoked to say that the provision of Section 197(1) of CrPC will not apply to the PMLA. A provision of Cr. P.C., made applicable to the PMLA by Section 65, will not be overridden by Section 71. Those provisions of CrPC which apply to the PMLA by virtue of Section 65 will continue to apply to the PMLA, notwithstanding Section 71. If Section 71 is held applicable to such provisions of the CrPC, which apply to the PMLA by virtue of Section 65, such interpretation will render Section 65 otiose. No law can be interpreted in a manner which will render any of its provisions redundant."
5. In the present case, the petitioner being a public servant and the commission of offence by him while being a public servant not being in dispute, the challenge to the legality of order taking cognizance and continuation of proceedings for want of sanction in light of allegations levelled in prosecution complaint(s), would require further consideration.
6. At this stage, bearing in mind the import of the aforesaid decision, it is deemed apposite to direct that till the next date of hearing, the proceedings before the trial court qua the present petitioner shall remain stayed.
7. Reply and additional documents, if any, be filed before the next date of hearing.
MANOJ KUMAR OHRI, J NOVEMBER 20, 2024 ga This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/11/2024 at 22:27:31