Point of Law : Application was not maintainable before learned Magistrate, since 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 Court which did not have a jurisdiction to even consider any application under PMLA, is rendered unsustainable. [Para 13]

ORDER :

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.

2. Heard Sri Sandesh J.Chouta, learned senior counsel appearing for the petitioner, K.S. Abhijith, learned High Court Government Pleader for respondents 1 and 2 and Sri Madhukar Deshpande, learned Special Public Prosecutor appearing for respondent No.3.

3. 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.

4. 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.

5. 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.

6. On the other hand, the learned counsel representing ED Mr. Madhukar Deshpande would refute the submissions to contend that no doubt proceedings or trial will have to be conducted by the designated Court, but the petitioner could not have been summoned by the ED for recording of the statement after registration of the crime as he is in judicial custody in C.C.No.25035 of 2022. Once he is in custody of the Court, an application has to be moved before the Court concerned which has passed order of judicial custody. Therefore, no fault can be found in the order passed by the learned Magistrate in permitting the ED to record statement of the petitioner and would rely on a judgment i