M.Y Eqbal, J. By this application under Section 482 of the Code of Criminal Procedure, the petitioner has prayed for quashing the order dated 22.12.2009 passed by the Addl. Judicial Commissioner, Ranchi being Special Court under the Prevention of Money Laundering Act, 2002, whereby he has rejected the application of the petitioner filed under Section 167(2)of the Code of Criminal Procedure and further for a direction to the Special Court to grant bail to the petitioner under the provision of Section 167(2) of the Code of Criminal Procedure.
2. It appears that on the basis of complaint from one Shri Kumar Vinod, a vigilance case was registered by the Vigilance Department being Vigilance Case No. 26 of 2008 corresponding to Special Case No. 32 of 2008 for contravention of Sections 406, 409, 420, 423, 424, 465, 120-B of the Indian Penal Code and Section 11/13 of the Prevention of Corruption Act against the petitioner and others. On the basis of the said complaint, the Director of Vigilance has drawn up an Enforcement Case being ECIR No. ECIR/01.PAT/09.AD against the petitioner and others under Section 3 read with Section 4 of the Prevention of Money Laundering Act, 2002 and a copy of the same was forwarded to the Addl. Judicial Commissioner (Special Court), Ranchi. It appears that the abovementioned case under Section 3 and 4 of the Prevention of Money Laundering Act, 2002 was lodged on 4.9.2009 by the Assistant Director-II, the Directorate of Enforcement and he took up the investigation as an Investigating Officer of the case. In the meantime, the petitioner was remanded to judicial custody on 13.10.2009 On 22.12.2009, a petition was filed by the petitioner before the Special Court in the aforesaid ECIR case praying therein to release the petitioner on bail on the ground that the petitioner was remanded to judicial custody on 13.10.2009 and 60 days expired on 12.12.2009 and still the Investigating Officer of the case has not submitted police report as required under Section 173(2) of the Cr.P.C against the petitioner. The said petition was rejected by the Special Court holding that the Investigating Officer after completion of the investigation filed a complaint against the petitioner with a prayer to take cognizance on 11.12.2009 i.e within 60 days from the date of first remand of the petitioner.
3. Mr. Biren Poddar, learned counsel appearing for the petitioner, has assailed the impugned order as being illegal and wholly without jurisdiction. Learned counsel submitted that the petitioner was remanded to judicial custody on 13.10.2009 and inspite of expiry of 60 days i.e 12.12.2009, the Investigating Officer has not submitted police report as required under Section 173(2) of the Cr.P.C and as such, the petitioner is entitled to be released on bail under the proviso (a) of sub-section (2) of Section 167 Cr.P.C Learned counsel submitted that a separate complaint filed by the Investigating Officer being Complaint Case No. 01 of 2009 cannot and shall not be treated as a police report as required under Section 173(2) of the Code. According to the learned counsel, police report and complaint are not synonymous to each other, inasmuch as a police report as defined under the Code means report forwarded by the Police Officer to a Magistrate under sub-section (2) of Section 173 of the Code, whereas a complaint as defined in sub-section 2(d) of Section 173 means any allegations made to a Magistrate with a view of his taking action under the Code. Lastly, learned counsel submitted that admittedly no police report/final form has been submitted till today by the Investigating Officer and as such, the petitioner is entitled to be release on bail under Section 167(2) of the Code.
4. On the other hand, Mr. A.K Kashayp and Mr. A.K Das, learned counsels appearing for the State Vigilance and the Enforcement Directorate, submitted that the Special Court rightly rejected the petition on the ground that the Investigating Agency after completion of investigation filed the complaint within 60 days from the date of first remand. Learned counsels submitted that the word “investigation” used under the provision of Section 167 Cr.P.C does not mean a police report only. A complaint filed after completion of investigation fulfils the requirement of law.
5. Before adverting to the rival contentions made by the parties, I would first like to refer some of the relevant provisions of the Prevention of Money Laundering Act, 2002.
6. Prevention of Money Laundering Act 2002 which came into force in 2005 was enacted by the Parliament to prevent money laundering and to provide for confiscation of property derived from and also for matters connected therewith or incidental thereto. The Act undergone amendment in 2005 and lastly in 2009. The Act is a special statute enacted by the Parliament to implement political declaration adopted by special Session of United Nations in General Assembly held in the year 1999.
7. Section 2 defines various words including adjudicating authority, Assistant Director, investigation, offence of cross border implication etc. Section 2(na) defines the word “investigation” as under :
“(na)” investigation” includes all the proceeding under this Act conducted by the Director or by an authority authorized by the Central Government under this Act for the collection of evidence”.
8. Section 3 and 4 deals with the offence of money laundering which reads as under:-
“3. Offence of money-laundering-whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds or crime and projecting it as untainted property shall be guilty of offence of money-laundering.”
4. Punishment for money-laundering - Whoever commits the offence of money-laundering shall be punishable with rigorous imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine which may extend to five lakh rupees:
Provided that where the proceeds of crime involved in money-laundering relates to any offence specified in paragraph 2 of Part A of the Schedule, the provisions of this section shall have effect as if for the words “which may extend to seven years”, the words “which may extend to ten years” had been substituted.
9. Chapter III (Sections 5 to 11) lays down the provisions with regard to attachment, adjudication and confiscation.
10. Chapter IV deals with the Obligations of Banking Companies, Financial Institutions and Intermediaries. Section 16 to 24 in Chapter V lays down the provisions with regard to procedure of summons, searches, seizures, etc. Chapter VI prescribes different authorities and Tribunal which shall be notified by the Central Government. Chapter VII is relevant for the purpose of instant case which lays down the procedures of constitution of special courts and the nature of the offences. Section 43 confers power upon the Central Government to designate by notification in consultation with the Chief Justice of the High Court one or more courts of Sessions or special courts for such area or for such class or group of cases and may be notified in the notification. Section 44 confers power to the special Courts only to try offences punishable under Section 4 of the Act. Section 44 reads as under: -
“44. Offences triable by Special Courts - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-
(a) the schedule offence and the offence punishable under section 4 shall be triable only by the Special Court constituted for the area in which the offence has been committed;
Provided that the Special Court, trying a schedule offence before the commencement of this Act, shall continue to try such scheduled offence, or
(b) a Special Court may, upon a complaint made by an authority authorised in this behalf under this Act take cognizance of the offence for which the accused is committed to it for trial
(2) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under section 439 of the Code of Criminal Procedure, 1973 (2 of 1974) and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to “Magistrate” in that section includes also a reference to a “Special Court” designated under section 43.”
11. Section 45 deals with offences which are cognizable and nonbailable. It is very relevant and important provision which is worth to be quoted herein below: -
“45. Offences to be cognizable and non-bailable.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule shall be released on bail or on his own bond unless-
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and
(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail:
Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm, may be released on bail, if the Special Court so directs:
Provided further that the Special Court shall not take cognizance of any offence punishable under section 4 except upon a complaint in writing made by-
(i) the Director; or
(ii) any officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government by a general or special order made in this behalf by that Government.
(1-A) Notwithstanding anything contained in theCode of Criminal procedure, 1973 (2 of 1974), or any other provision of this Act, no police officer shall investigate into an offence under this Act unless specifically authorized, by the Central Government by a general or special order, and subject to such conditions as may be prescribed;
(2) The limitation on granting of bail specified in sub-section
(1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.”
12. Last but not the least, Sections 65 and 71 are two provisions which inter alia provide that provision of this Act shall have overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. It further provides that the provisions of the Code of Criminal Procedure shall apply in so far as they are not inconsistent with provisions of this Act. For better appreciation Sections 65 and 71 are worth to be quoted herein below: -
“65. Code of Criminal Procedure, 1973 to apply. - The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply, in so far as they are not inconsistent with the provisions of this Act, to arrest, search and seizure, attachment, confiscation, investigation, prosecution and all other proceedings under this Act.
71. Act to have overriding effect. - The provisions of this Act shall have effect notwithstanding inconsistent therewith contained in any other law for the time being in force.”
13. From reading the Act as a whole it is manifestly clear that the Prevention of Money Laundering Act being a special statute, the procedure for dealing with the offences are regulated by the provisions contained in the said Act. Section 44(1b) clearly provides that cognizance for the offence punishable under the Act shall be taken only upon a complaint made by an authority authorized in that behalf under the Act. Further Section 45 of the Act put restrictions in the release of the persons on bail unless conditions mentioned therein are fulfilled. It further provides that special Court shall not take cognizance of any offence under section 4 except on a complaint made by the Director or any Officer authorized by the Central Government or the State Government. Sub-Section (1-A) of Section 45 specifically provides that notwithstanding the provisions contained in the Code of Criminal Procedure, no police officer shall investigate into an offence under the Act unless specifically authorized by the Central Government by a general or special order. The provisions of the Act has been given over-riding effect upon any other law and further categorically mentioned that any provision of Code of Criminal Procedure which are inconsistent with the provision of the this Act which deals with attachment, confiscation, investigation and prosecution etc. shall not apply. There is no provision in the Act which is a special statute for filing of police report. It could file a complaint only after completion of investigation by the authorized authority, which shall be the basis of taking cognizance.
14. As noticed above, the word “investigation” as defined in Section 2(na) has been inserted by virtue of Amendment Act 20 of 2005. According to the definition the word “investigation” includes all the proceedings under the Act conducted by the Director or by an authority authorized by the Central Government under the Act for the collection of evidence.
15. The provision contained in Sections 44 and 45 of the Act prohibits taking of cognizance except on a complaint made by the appropriate authority who can file a complaint only after completion of investigation. In my considered opinion, therefore, in view of nonobstante clause contained in various provisions of the Act, which has overriding effect, the provision contained in section 167(2) of the Cr.P.C will not apply.
16. In the instant case, as noticed above, a case under the said Act was lodged on 4.9.2009 and the petitioner was remanded to custody in this case on 13.10.2009 Even assuming that the provisions contained in section 167(2) was to be complied with, admittedly, the authorized authority after completion of investigation filed the complaint on 11.12.2009 i.e well within 60 days, hence, the petitioner could not get the benefit of the provisions contained in section 167(2) of the Code.
17. In the facts and circumstances of the case and having regard to the discussions made above, the impugned order needs no interference. Hence, there is no merit in this application, which is, accordingly, dismissed.