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2023 Supreme(Bom) 2229
IN THE HIGH COURT OF BOMBAY
Sarang V. Kotwal, J.
Mehul Choksi - Appellant
Versus
State of Maharashtra - Respondent
Criminal Application No. 1505 of 2019, Interim Application No. 2733, 2736 of 2021
Decided On : 21-09-2023
Vijay Aggarwal, Advocate, Rahul Agarwal, Advocate, Yash Agrawal, Advocate, Abhiraj Rai, Advocate, Jasmin Purani, Advocate, Rohit Kaul, Advocate, Yashwardhan Tiwari, Advocate, A.R.Patil, Advocate, H.S.Venegavkar, Advocate, Aayush Kedia, Advocate
IMPORTANT POINT
The Fugitive Economic Offenders Act has an overriding effect over other laws, and compliance with its specific procedural requirements is mandatory, including the adequacy of verification in applications.
Headnote:
FUGITIVE ECONOMIC OFFENDERS - Fugitive Economic Offenders Act, 2018 - Sections 4, 5, 11, 16, 21, 22; Code of Criminal Procedure, 1973 - Sections 5, 297 - The court discussed the provisions of the Fugitive Economic Offenders Act (FEO Act) and the Code of Criminal Procedure (Cr.P.C.), emphasizing the importance of compliance with procedural requirements. It highlighted that the FEO Act has an overriding effect over other laws, and the specific procedures outlined in the FEO Act and its rules must be followed. The court interpreted the necessity of affidavits in applications under the FEO Act, concluding that the verification provided was adequate and met the statutory requirements, thus influencing its decision to reject the application for dismissal of the proceedings under the FEO Act.
Fact of the Case:
The Applicant challenged an order from the Special Judge regarding an application filed under Section 4 of the Fugitive Economic Offenders Act, 2018, which sought to declare him a fugitive economic offender. The application was contested on the grounds of improper verification and lack of an accompanying affidavit as required by the Code of Criminal Procedure.
Finding of the Court:
The court found that the application under the FEO Act was properly filed and complied with the necessary procedural requirements. It ruled that the verification clause was sufficient and that the provisions of the FEO Act take precedence over the Cr.P.C. in this context.
Issues: Whether the application under Section 4 of the FEO Act was maintainable without an affidavit, and whether the verification provided was adequate under the law.
Ratio Decidendi: The court held that the FEO Act's provisions, particularly regarding the application process and verification, must be adhered to strictly. It concluded that the FEO Act has an overriding effect and that the specific procedures outlined in the Act and its rules were followed, thus validating the application.
Final Decision: The court rejected the Applicant's plea to dismiss the application under the FEO Act, affirming the validity of the proceedings and vacating the interim relief previously granted.
JUDGMENT/ORDER
SARANG V.KOTWAL, J. - Heard Shri Vijay Aggarwal, learned counsel for the Applicant in both Applications, Shri A.R. Patil, learned APP for the Respondent No.1-State and Shri H.S. Venegavkar, learned Special P.P. for the Respondent No.2.
2. The Applicant has challenged the order dtd. 30/8/2019 passed by the learned Special Judge, Greater Bombay below Exhibit-55 in Criminal M.A. No. 997/2018. Said application was filed by the Applicant before the learned Special Judge for directions to dismiss the application preferred under Sec. 4 of the Fugitive Economic Offenders Act 2018 (hereinafter referred to as the 'FEO Act'). The learned Special Judge directed that the matter would proceed further for hearing of the arguments of learned counsel for the respondent before him (i.e the Applicant herein) and thereafter for rejoinder by learned SPP for the Applicant before him (the Respondent No2 in the present application before this Court) on the main application under Sec. 4 of FEO Act.
3. The brief background of the case is mentioned in the present application as follows:
i. An FIR No.RC02(E)/2018 was registered with BS and FC (CBI) Mumbai on 15/2/2018 under Sec. 120-B read with 420 of IPC and under Sec. 13 (2) read with 13(1)(d) of the Prevention of Corruption Act 1988. Pursuant to the FIR, the charge sheet was filed by the CBI before the learned Special CBI Judge on 15/5/2018. The learned judge took cognizance against the Applicant and the other accused on 22/5/2018. It was registered as Special CBI Case No.38/2018 and is pending before the Special Judge for CBI, Sessions Court, Greater Bombay. In pursuance to the registration of the FIR by the CBI, The Enforcement Directorate (for short, 'ED') registered Enforcement Case Information Report [ECIR] No. MBZO-I/04/2018. The ED filed a complaint under Sec. 45 of the Prevention of Money Laundering Act, 2002 (for short, 'PML Act') before the Special PMLA Court. That court took cognizance on 3/7/2018 against the Applicant and the other accused and the case is pending before that court at the stage of appearance.
ii. On 10/7/2018, the ED filed an application under Sec. 4 read with Sec. 12 of the Fugitive Economic Offenders Ordinance, 2018 praying that the Applicant be declared as a fugitive economic offender and his properties be confiscated under FEO Act.
iii. The Applicant filed an application before the learned Special Judge praying for dismissal of the application filed under the FEO Act on the ground that the application under Sec. 4 of the FEO Act was not accompanied by an affidavit as contemplated under Sec. 297 of Cr.P.C.. This application was filed below Exhibit-55 which was rejected by the impugned order and hence the present application is filed.
SUBMISSIONS ON BEHALF OF THE APPLICANT :
4. Learned counsel Shri Aggarwal appearing for the Applicant relied on various provisions of the FEO Act, the Code of Criminal Procedure 1973 and the PML Act. He made the following submissions:
i. Sec. 16 of the FEO Act puts the burden on the Director or the authorized person to establish that an individual is a fugitive economic offender or that the property in question was the proceeds of crime or any other property in which the individual, alleged to be an economic offender, has an interest. He therefore submitted that the averments in the application are important and they have to be supported by a proper affidavit. In the present case, the verification clause below the application under Sec. 4 of the FEO Act is not proper. The requirements of Sec. 297 of Cr.P.C. and the provisions of the Criminal Manual issued by the Bombay High Court for the guidance of the criminal courts are not complied with and hence the application was not maintainable.
ii. There are various averments in the application filed by the Deputy Director of ED which were not true and could not be true. Therefore, it was necessary that the application was supported by an affidavit so that the person who filed the applicatio
