Cognizance of offences against public servants under the PMLA requires prior sanction under Section 197 CrPC, as established by the Supreme Court.

Judgment :

(Arvind Kumar Verma, J.)

1. The instant revision has been filed under Section 438 read with Section 422 BNSS, 2023 against the order dated 05/10/2024 passed by the learned Special Judge (PMLA), Raipur, C.G. whereby the cognizance has been taken in prosecution complaint dated 28/06/2024 filed in ECIR/RPZO/04/2023 dated 14/10/2023 againstthe petitioner under Section 3 read with Section 4 of the Prevention of Money Laundering Act, 2002.

2. The brief facts of this case are that:-

- On 16.01.2024, the ACB/ EOW, Raipur registered an FIR bearing no. 01/2024 for commission of offences u/S 120B and 409 IPC and Section 13(1)(a) and Section 13(2) read with Section 11 of the Prevention of Corruption Act, 2018 (as amended) inter alia arraigning the Petitioner as an accused.

- On 19.04.2024, the ED registered an addendum ECIR based on the FIR No. 01/2024 registered by ACB/EOW, which in turn was registered on the ED's own complaint/ letter dated 09.01.2024. On 28.06.2024, after completion of investigation, the ED filed its prosecution complaint in the Subject ECIR before the Ld. Trial Court, arraigning the Petitioner as Accused No. 1.

- On 05.10.2024, Ld. Special Judge passed the order thereby taking cognizance of the offence u/s 3 r/w Sec. 4 of the PMLA in relation to the Prosecution Complaint dated 28.06.2024 filed in the Subject ECIR inter alia against the Petitioner, and directed that a case be registered. Hence this petition.

3. Learned counsel for the petitioner would contend that:-

(a) at the time of passing the order on 05.10.2024 where cognizance of the offence of money laundering was taken, no sanction u/s 197(1) CrPC or u/s 218(1) BNSS was obtained by the Respondent/ED for prosecution of the Petitioner, despite the fact that the petitioner was a Public Servant at the time of the commission of the alleged offence and despite the mandatory requirement for obtaining such a sanction in terms of Section 197(1) CrPC read with Section 65 PMLA. He would next contend that even as on date, no sanction u/s 218 BNSS has been obtained by the Respondent/ED for prosecution of the Petitioner. He would next contend that Section 218(1) BNSS having been obtained by the Respondent/ED for prosecution of the Petitioner herein, despite the fact that the Petitioner was a public servant at the time the alleged commission of the alleged offence.

(b) He would next contend that a sanction from the concerned government, as envisaged under Section 197 Cr.P.C. or Section 218 BNSS, is a necessary precondition for a Court to take cognizance of any offence alleged to have been committed by a public servant. Without such sanction from the concerned government, the competent Court does not have the jurisdiction to take further proceedings in the matter, including taking cognizance of the alleged offences. He would next contend that the Hon'ble Supreme Court has recently held in the case of Enforcement Directorate v. Bibhu Prasad Acharya, 2024 SCC OnLine SC 3181 and declared the law that the Sanction under Section 197(1), CrPC for prosecution of inter alia a Public Servant must have been obtained prior to taking cognizance of the offence of money laundering u/s 3 of the PMLA as well.

(c) He would also contend that by virtue of the above position of law as settled and clarified by the Hon'ble Supreme Court in Bibhu Prasad Acharya (supra), it is therefore abundantly clear that the provisions of Section 197(1), CrPC are applicable to a Complaint u/s 44 of the PMLA. Thus, the previous Sanction u/s 197(1) CrPC is a pre- requisite for prosecution of a Public Servant, i.e., the Petitioner herein in the Subject Case, for the offence u/s 3, PMLA, and cognizance cannot be taken in the absence thereof. He would next contend that in the Prosecution Complaint dated 28.06.2024, the Respondent/ ED has alleged that the Petitioner, who was the MD, MARKFED at the time of commission of the alleged offences, had issued directions to DMOs and employees of MARKFED to clear bills of only