In a very significant development, we saw how as recently as on October 17, 2022, the Karnataka High Court in an extremely relevant, robust, remarkable, refreshing and rational judgment titled Harsha D vs State in Writ Petition No. 19042 of 2022 (GM-RES) has very rightly quashed a Magistrate court’s order permitting the Enforcement Directorate (ED) to question the five undertrials who are in the judicial custody in a Special Court case.
The Single Judge Bench of Hon’ble Mr Justice M Nagaprasanna minced just no words to hold very clearly that:
In the light of the statutory frame work of the PMLA and the application filed under Section 50 of the Act, this Court is of the considered view that the application was not maintainable before the learned Magistrate, since the Court did not have the power to direct recording of statements for it to become a record under the PMLA, the order which is passed by the Court which did not have a jurisdiction to even consider any application under the PMLA, is rendered unsustainable.
This is exactly what all the Magistrates must definitely pay heed to and act accordingly whenever they face similar such cases before them so that they are not later made to face the reprimand of the High Court for not adhering to the rule of law as stipulated. It must be certainly mentioned here that this leading case pertains to Harsha D who is a first divisional clerk who was arrested in the police sub-inspector recruitment scam earlier this year.
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench of Hon’ble Mr Justice M Nagaprasanna of Karnataka High Court sets the pitch in motion by first and foremost putting forth precisely in para 1 that:
The petitioner is before this Court calling in question order dated 14-09-2022 passed by the I Additional Chief Metropolitan Magistrate, Bengaluru in C.C.No.25035 of 2022 in a case concerning offences punishable under Sections 34, 120B, 420, 465, 468 and 471 of the IPC.
Briefly stated, the Bench then discloses in para 3 that:
Shorn of details, the facts in brief, are as follows:-
A crime comes to be registered in Crime No.48 of 2022 before the Chowk Police Station, Kalaburagi in which the petitioner is one of the accused. The same is transferred to the 2nd respondent, the Investigating Agency. Another crime comes to be registered in Crime No.60 of 2022 before the High Grounds Police Station against 34 persons in which petitioner is accused No.29. The latter crime was registered during the time when the earlier crime was under investigation. On 26.07.2022 the police filed charge sheet in Crime No.60 of 2022. The petitioner throughout has been in prison either concerning crime No.48 of 2022 or crime No.60 of 2022.
To put things in perspective, the Bench then envisages in para 4 that:
The issue in the case at hand is not with regard to merits of the matter concerning either of the crimes. What drives the petitioner to this Court is that on 30-08-2022 the 3rd respondent/ Directorate of Enforcement (‘ED’ for short) files an application under Section 50(3) of the Prevention of Money Laundering Act, 2002 (‘the PMLA’ for short) before the concerned Court i.e., the learned Magistrate in C.C.No.25035 of 2022 seeking permission to record written statement of five accused including the petitioner who are in judicial custody and to allow two officers of the ED with a laptop and a printer for the purpose of recording the statements and also sought a direction to the Jail Authorities to cooperate for recording of such statements. The petitioner filed his objections to the said application on 05-09-2022. The learned Magistrate considering both the application and the objection filed, allows the application and permits the ED to record the statements as was sought for in the application. It is this order of the learned Magistrate that drives the petitioner to this Court.
To be sure, the Bench then states in para 5 that:
The learned senior counsel Sri Sandesh J.Chouta, appearing for the petitioner would contend that once an Enforcement Case Information Report in ECIR No.ECIR/BGZO/68/2022 (for short ‘ECIR’) is registered all actions and any permission that is to be sought has to be before the Sessions Court as the competent Court or the designated Court to permit such application would only be the Special Court and the Special Court is the Sessions Court. The learned Magistrate could not have permitted recording of statement by his order, as the order is one without jurisdiction.
He would place reliance upon the judgment of the Co-ordinate Bench of this Court in DR. MADHUKAR G. ANGUR v. ENFORCEMENT OF DIRECTORATE – Criminal Petition No.1189 of 2022 decided on 30th March, 2022, the judgment of the Apex Court in the case of HARSHAD S. MEHTA v. STATE OF MAHARASHTRA – (2001) 8 SCC 257 and the judgment of the Apex Court in A.R. ANTULAY v. R.S. NAYAK – AIR 1988 SC 1531 to buttress his submission.
Most significantly, it must be noted that what forms the cornerstone of this notable judgment is then encapsulated in para 10 wherein it is postulated that, If the ED wants to invoke the provisions of the PMLA to discern the offence under Section 3 of the PMLA, the designated Court is the Court of Session alone which had the power to even consider any application emanating from the provisions of the PMLA as the offence supra, Section 43 supra and Section 71 clearly mean that the designate Court to try anything emanating from the PMLA is the Special Court and the Special Court is the Court of Session. Section 71 has overriding effect on any law. The petitioner may have been in custody concerning C.C.No.25035 of 2022 and the said custody is ordered by the learned Magistrate.
Merely because custody is ordered by the learned Magistrate, he cannot be clothed with the powers of a Court of Session, which alone has the power to consider any application of the kind that was made before the learned Magistrate. The learned Magistrate was dealing with an application filed under Section 50 of the PMLA. It was completely without jurisdiction for the learned Magistrate to have considered the application filed under Section 50 of the PMLA. It ought to have been placed before the concerned Court for taking permission to record the statements as it is trite that the Special Court can always have the power of the Magistrate and not the other way round since it touches upon the jurisdiction. PMLA mandates that anything emanating from the PMLA shall be considered only by the Special Court.
In short, it is worth noting that the Bench then succinctly states in para 11 that:
The answer to a question concerning jurisdiction, can be either a ‘yes’ or a ‘no’ and never be ‘may be’. Since the unequivocal interpretation of the PMLA is that everything shall be placed before the Special Court, the application so filed under Section 50 of the PMLA could not have been placed before the learned Magistrate, notwithstanding the fact that the petitioner is in judicial custody concerning a case and the said custody is ordered by the learned Magistrate. The acts of the accused may result in several proceedings under the IPC, under special enactments or under any other law that would govern such accused and those enactments may require the accused to be tried before a Special Court.
If the offence alleged is amalgam of the offences under the IPC which is to be tried before a Magistrate and the other offences to be tried before a Special Judge, any proceedings that the prosecution wants to initiate under special enactment it shall be only before the Special Court. Reference being made to the judgments of the Apex Court in the cases of HARSHAD S.MEHTA (supra), A.R.ANTULAY (supra) and VIJAY MADANLAL CHOUDHARY AND OTHERS v. UNION OF INDIA AND OTHERS 2022 SCC OnLine SC 929 in the circumstances becomes apposite.
Broadly speaking, the key point of para 12 is that what is then stated in the concluding part so very clearly that:
A Three Judge Bench of the Apex Court in the case of HARSHAD S.MEHTA followed the judgment in the case of A.R.ANTULAY (supra) to hold, if a Special Court is created under the provisions of a special enactment, the proceedings falling under that enactment shall be held only before the Special Court. For this purpose the Apex Court holds that the Special Court enjoys all the powers of the court of original jurisdiction and it holds a dual capacity and powers of both the Magistrate and the Court of Session depending upon the stage of the case.
Most forthrightly, the Bench then minces no words to hold most unambiguously in para 13 that:
In the light of the statutory frame work of the PMLA and the application filed under Section 50 of the Act, this Court is of the considered view that the application was not maintainable before the learned Magistrate, since the Court did not have the power to direct recording of statements for it to become a record under the PMLA, the order which is passed by the Court which did not have a jurisdiction to even consider any application under the PMLA, is rendered unsustainable.
There can be no qualm about the principles laid down in the judgment rendered in the case of NIRANJAN SINGH (supra) relied on by the learned counsel representing the ED to mean what is custody, but the judgment is inapplicable to the facts of the case at hand as it does not deal with issues concerning jurisdiction. Therefore, in view of the preceding analysis, the order passed on the application by the learned Magistrate requires appropriate interference and is to be consequently obliterated.
Finally, the Bench then concludes by holding in para 14 that:
For the aforesaid reasons, I pass the following:
O R D E R
- The Writ Petition is allowed.
- The impugned order dated 14.09.2022 passed by the I Additional Chief Metropolitan Magistrate, Bengaluru in C.C.No.25035 of 2022 stands quashed.
- The 3rd respondent - Enforcement Directorate is reserved liberty to file an application of the kind that it has filed before the learned Magistrate, before the Special Court, which shall deal with it in accordance with law.
In sum, what is quite ostensible is what is the real intent of this notable judgment: Magistrate can’t permit questioning of an accused who is being tried by a Special Court. So it thus quite naturally merits no reiteration that all the Magistrates must definitely comply in totality with what the Karnataka High Court has held so very commendably, cogently and convincingly in this leading case! No denying it!
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh
