Case Note & Summary
The Bombay High Court at Goa disposed of two Criminal Revision Applications filed by Digambar Vasant Kamat and Churchil Alemao, who were co-accused in a complaint filed by the Enforcement Directorate (ED) under Section 44(1)(b) of the Prevention of Money Laundering Act, 2002 (PMLA) pending before the Special Court at Mapusa, Goa. The applicants challenged the common order dated 21.07.2018 by which the Special Court took cognizance of the offence under PMLA and issued process against them. The foundational predicate offence was an FIR registered on 21.07.2015, based on which an ECIR was registered on 07.08.2015. The complaint under PMLA was instituted on 12.07.2018, and the Special Court took cognizance on 21.07.2018. On 22.07.2021, charges under Section 3 of PMLA were framed against the applicants. The applicants limited their challenge to the cognizance order on the ground that prior sanction under Section 197 of the Code of Criminal Procedure, 1973 (CrPC) was not obtained before taking cognizance. The court noted that both revision applications raised identical grounds and were disposed of by a common order. The court examined the applicability of Section 197 CrPC, which requires prior sanction for prosecution of public servants for offences committed while acting in the discharge of official duties. The court observed that the protection under Section 197 CrPC is available only to public servants who are not removable from service except by or with the sanction of the State Government or Central Government. The court found that the applicants were not public servants at the time of the alleged offence, and therefore, the question of sanction did not arise at the stage of cognizance. The court further held that even if the applicants were public servants, the issue of sanction could be considered at the stage of framing of charges or trial, and not at the stage of taking cognizance. The court dismissed both revision applications, upholding the order of the Special Court taking cognizance and issuing process.
Headnote
A) Criminal Procedure Code - Sanction for Prosecution - Section 197 CrPC - Applicability to PMLA Proceedings - The court considered whether prior sanction under Section 197 CrPC is mandatory before taking cognizance of an offence under the Prevention of Money Laundering Act, 2002 (PMLA) against a public servant. The court held that the protection under Section 197 CrPC is available only to public servants who are not removable from service except by or with the sanction of the State Government or Central Government. Since the applicants were not public servants at the time of the alleged offence, the question of sanction does not arise at the stage of cognizance. The court further held that the issue of sanction can be considered at the stage of framing of charges or trial, if applicable. (Paras 4-10) B) Prevention of Money Laundering Act, 2002 - Cognizance of Offence - Section 44(1)(b) PMLA - Requirement of Sanction - The court examined whether the Special Court's order taking cognizance under Section 44(1)(b) PMLA was invalid for lack of prior sanction under Section 197 CrPC. The court held that the complaint under PMLA is filed by the Enforcement Directorate (ED) and not by a police officer, and the provisions of CrPC apply subject to the PMLA. Since the applicants were not public servants at the time of the offence, no sanction was required. The court dismissed the revision applications, upholding the cognizance order. (Paras 1-11)
Issue of Consideration
Whether the order of taking cognizance and issuing process by the Special Court under PMLA is vitiated for want of prior sanction under Section 197 of the Code of Criminal Procedure, 1973 (CrPC)?
Final Decision
Both Criminal Revision Applications are dismissed. The order of the Special Court taking cognizance and issuing process is upheld.
Law Points
- Prior sanction under Section 197 CrPC is not required for taking cognizance of offence under PMLA when the accused is not a public servant at the time of commission of offence
- Sanction under Section 197 CrPC is not a condition precedent for filing complaint under PMLA
- The protection under Section 197 CrPC is available only to public servants who are removable from service by the State Government or Central Government
- The question of sanction can be considered at the stage of framing of charges or trial
- not at the stage of taking cognizance
