Applying Section 41A CrPC Will Defeat PMLA's Objective : Solicitor General Tells Supreme Court

The Solicitor General of India Tushar Mehta continued his arguments in the Supreme Court on Thursday defending the provisions of the Prevention of Money Laundering Act.The top law officer of the Union emphasised that the PMLA was a "complete code" in itself and the provisions of the Code of Criminal Procedure, such as the notice under Section 41A CrPC, or the FIR procedure under Section 154, do not apply to money laundering offences. Highlighting that the PMLA has higher threshold and safeguards for arrest, the SG argued that applying Section 41A CrPC to money laundering offences can defeat the purpose of PMLA.During the hearing, the bench orally remarked that section 154, Cr. P. C. (registration of FIR) has no place in the Prevention of Money Laundering Act regime because the latter envisages a "complaint procedure".The Court was hearing Solicitor General Tushar Mehta's response to the argument of the petitioners that all Cr. P. C. provisions, as contained in its Chapter 12, including registration of FIR, giving a copy of the same to the accused, intimation to magistrate etc, would apply to PMLA offences. It has been his case that in case of an investigation by police officers under Cr. P. C., the Court takes cognisance on a police report filing under section 173[2] while in case of investigation by "authorities" under PMLA, the Court takes cognisance upon a complaint made by an authority; that the PMLA is a complete Code to the extent it provides for the investigative process till the stage of filing of the complaint. PMLA Section 44, under which the Special Court is empowered to take cognisance of the offence of money-laundering under Section 4 or any scheduled offence connected thereto, in terms of Section 44(1)(b), upon a complaint by the competent authority (specified under Section 45), was indicated as the judicial act of taking cognisance as under Cr. P. C. Section 190(1)(a). It was the SG's case that under the scheme of the PMLA, the recording of the Enforcement Case Information Report (ECIR) is the start of the investigative process; that the said recording is not to be equated with the registration of FIR; that ECIR is a term given for the purpose of administrative convenience for identification of each case and does not have any statutory sanction as in the case of FIR.It was the SG's case that the fundamental misconception on which the argument of the Petitioners is premised is the Petitioners' understanding that the method, mode and manner of investigation of all criminal offences in the country is to be carried out only and only as per the provisions of the Cr. P. C. It was submitted that while Cr. P. C. represents a constitutional compliant substantive but generic procedural law with regard to criminal offences, the Cr. P. C. is not the only mode in which criminal offences in the country can be investigated/tried except the offences under the IPC. It was submitted that the same is clear from the Cr. P. C. itself in its sections 4 and 5. It is submitted that this legislative intent reflected in Section 4 and 5 of the Cr. P. C. is clearly manifested in the PMLA in sections 65 and 71 of the PMLA. It was submitted that the Cr. P. C. is merely one of the means of investigation of criminal offences as is clear from a bare perusal of Section 5 Cr. P. C. It is, therefore, open for the Legislature, while enacting substantive penal provisions, to provide for a procedure that may differ from the procedure provided under the Cr. P. C. Admittedly, such procedure ought to entail sufficient constitutional safeguards; however, it would be open to make requisite departures from the procedure provided in the Cr. P. C. if the nature of the offence being dealt with so justifies. It was submitted that the Cr. P. C. itself envisages this departure by enacting Section 5 which itself puts restrictions on applicability of Cr. P. C. if special procedure is provided. It was submitted that further, a special criminal law procedure is wrongly portrayed by the Petitioners that procedure of all offences shall have to be Cr. P. C. compliant. It was submitted that such special procedure only ought to be constitutionally compliant and not necessarily Cr. P. C. compliant as sought to be canvassed by the Petitioners. It was submitted that the constitutional protections of non-arbitrariness [Article 14, Article 20, Article 21) (which is fair and reasonable procedure and other constitutional principles enshrined under Part III)] will form the basis of testing the validity of any special procedure prescribed by law. It was submitted that such procedure cannot be tested on the anvil of the procedure enshrined in Cr. P. C. It was submitted that the Cr. P. C. has a detailed procedure for registration, investigation, arrest by "Police officers" and subsequent trial for both, cognisable and non-cognisable offences. It was submitted that the legislature has, in order to specifically tackle a particular malaise/crime and considering the ...

Applying Section 41A CrPC Will Defeat PMLA's Objective : Solicitor General Tells Supreme Court

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