Order on Board

07/02/2025

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 filed in ECIR/RPZO/04/2024 against the applicant under Section 3 read with Section 4 of the Prevention of Money Laundering Act, 2002.

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

Digitally signed by ASHUTOSH ASHUTOSHMISHRA MISHRA Date:

2025.02.14 +0530  On 04.07.2023, a Prosecution Complaint u/s 45 r/w Sec. 44 PMLA was filed by the ED against inter alia the Applicant.

 On 11.07.2023, ED addressed a letter u/s 66 PMLA to ACB, Raipur seeking registration of an FIR with the aim of creating a scheduled offence for itself.

 On 30.07.2023, an FIR bearing No. 196/2023 u/s 420, 468, 471, 473, 484, 120-B IPC ("UP FIR") was registered at PS Kasna Police, Greater Noida, Uttar Pradesh on the basis of a letter dated 28.07.2023 sent by the ED u/s 66 PMLA.

 On 17.01.2024 the ED has caused the registration of another FIR bearing No. 04/2024 dated 17.01.2024 u/s 420, 467, 468, 471, 120-B IPC r/w Sec. 7 & 12 Prevention of Corruption Act, 1988 ("Chhattisgarh FIR").

 On 10.04.2024, in view of the above facts and circumstances, the Applicant filed a Petition seeking quashing of the Chhattisgarh FIR which was subsequently numbered as CRMP/936/2024. Along with the said Writ Petition, the Applicant had also sought interim relief similar to the relief granted to the co-accused of the Applicant by this court on 01.04.2024. Thereafter, the Applicant was arrested on 12.04.2024 by the ACB, Raipur. The Applicant was been remanded to a total of 14 days of Police custody and has been in judicial custody in relation to the Chhattisgarh FIR ever since.

 On 11.04.2024, within 3 days after quashing of the Prosecution Complaint in relation to ECIR 11, ED registered a second ECIR, being ECIR/RPZO/04/2024 ("2nd ECIR") by again treating the Chhattisgarh FIR as the alleged scheduled offence and again making allegations of a fictitious liquor scam in the State of Chhattisgarh.

 On 05/10/2024 respondent Enforcement Directorate filed prosecution complaint against the present applicant and the learned Special Judge passed the order thereby taking cognizance of the offence under Section 3 read with Section 4 of the PMLA in relation to the Prosecution Complaint filed in the subject ECIR against the applicant.

Hence this petition.

3. Learned counsel for the applicant 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