The main legal point established in the judgment is that the power of further investigation can be directed until trial commences and can be exercised suo motu by the Magistrate. The court also clarified the definition of 'proceeds of crime' under PMLA.

JUDGMENT :

1. Heard Mr. R. Dhar, learned counsel for the petitioner, Enforcement Directorate, Department of Revenue, Govt. of India represented by the Assistant Director, Guwahati Zonal Office, who has filed an application under Section 397/401 read with 482 of the Code of Criminal Procedure, 1973 as amended up to date (Cr.P.C for short) against the order dated 20.04.2022 passed by learned Special Judge, Assam, Guwahati in Special (PMLA) Case No. 18/2018 in F. No. ECIR/GWZO/03/2014 rejecting the petition No. 363/2022 and prayer of the petitioner, seeking permission to enter into the jail premises along with the Laptop and other documents to interrogate and record statements of Shri Gautam Kundu and Shri Shibamoy Dutta who are arrayed as respondent nos. 1 and 2 in connection with this case.

2. The order dated 20.04.2022, reflects that the Assistant Director of ED, (Niraj Kr. Singh) vide petition no. 363/2022 dated 10.03.2022 had prayed for interrogation of the respondents lodged in the Presidency Correctional Home, Kolkata, in pursuance of the investigation of the aforementioned case. The defence had raised objection stating that the case was already been fixed for evidence and the intention of the I/O to interrogate in furtherance of investigation could not be accepted.

3. On the contrary, the learned Special P.P. for the E.D had submitted that the prosecution had a prayer for filing additional/supplementary complaint and during the course of further investigation, some properties have been identified by the I/O, which are proceeds of the crime. It was held by the trial Court that on 12.07.2018, the ED had filed a complaint against the accused persons/respondents and therefore, cognizance was taken under Section 4 of the Prevention of Money Laundering Act, 2002, (PMLA for short). On 29.12.2021, a formal charge was framed and this case was posted for evidence. As trial had already commenced, petition with prayer for further investigation was rejected by the learned trial Court.

4. It is submitted on behalf of the petitioner that on the basis of the FIRs registered by the Assam Police, which was later transferred to the Central Bureau Investigation, Guwahati, and re-registered by CBI, vide FIRs bearing No. RC 0172015A0007 and RC 0172015A0008, under Sections 120B & 420 of IPC, 1860, and ECIR bearing No. ECIR/GWZO/03/2014 was recorded on 16.12.2014, as the Sections incorporated in the FIRs are Scheduled Offences within the meaning of Section 2(1)(y) of PMLA, 2002 for investigating the said matter under the Provisions of PMLA, 2002. After recording of ECIR, several properties worth Rs. 4.63 Crores were attached to the State of Assam. The prosecution complaint was filed before the learned Court of Special Judge, Assam, Guwahati on 12.07.2018, as per the statutory mandates, with rider that “the investigation in this case is still continuing”.

5. Meanwhile, the CBI had completed its investigation and filed charge-sheets bearing No. 02/2020 dated 10.02.2020 in RC 0172015A0007 and C.S. No. 03/2020 dated 09.03.2020 in RC 0172015A0008. An application under Section 44(1) (c) of PMLA, 2002 was filed before the CBI Court for committal of CBI’s case before the Special PMLA Court.

6. The respondent No. 1, Shri Gautam Kundu was involved in the process of acquisition, utilization & possession of proceeds of crime and the other respondent No. 2, Shri Shibomay Dutta, intentionally assisted in the process of acquisition, utilization & possession of proceeds of crime. Both the respondents were charged under Section 3 of the PLMA, 2002.

7. The charge-sheet reflects that an amount of Rs. 1723,96,95,525/-was collected from the investors in Assam (except Jorhat Division) in the name of fake and fabricated schemes and out of the said collection an amount of Rs. 1186,13,19,855/-was refunded to the investors. It is alleged that the proceeds of crime amounting to Rs. 537,83,75,670/-appears to have been misappropriated by the present respondents and the co-accused