Brief Facts
- The petition was filed by a person arrayed as Accused No.1 in a complaint filed by the Enforcement Directorate, under Section 406 of the Cr.P.C., 1973 read with Section 65 of the Prevention of Money-laundering Act, 2002, seeking transfer of Sessions Case No.1004/2021 arising out of ECIR/02/HIU/2018, from the Court of the Special Judge, PMLA, Lucknow to the Court of the Special Judge, PMLA at Ernakulam, Kerala.
- The petitioner claims that he was the General Secretary of Campus Front of India, which is now banned as an unlawful association, vide Notification issued by the Union of India, Ministry of Home Affairs dated 27.09.2021 under Section 3 of the Unlawful Activities (Prevention) Act, 1967.
Issues
- Whether the case can be transferred on the ground of lack of jurisdiction of a Court to entertain a complaint?
- Whether a case can be transferred to another state on the ground that most of the accused & witnesses are from that state?
- Whether the trial for the offence of money laundering should follow the trial of the scheduled/predicate offence or vice versa?
- Whether the territorial jurisdiction would automatically vest with the Court which has passed the order for remand under Section 167 of the CrPC?
Held
- The Transfer Petition was dismissed.
- Irrespective of where the FIR relating to the scheduled offence was filed and irrespective of which Court took cognizance of the scheduled offence, the question of territorial jurisdiction of a Special Court to take cognizance of a compliant under PMLA should be decided with reference to the place/places where anyone of the activities/processes which constitute the offence under Section 3 took place.
- Therefore, the Special Court, PMLA, Lucknow cannot be said to be lacking in territorial jurisdiction to entertain the complaint. In any case, the lack of jurisdiction of a Court to entertain a complaint can be no ground to order its transfer. A congenital defect of lack of jurisdiction, assuming that it exists, inures to the benefit of the accused and hence it need not be cured at the instance of the accused to his detriment. Therefore, the first ground on which transfer is sought, is liable to be rejected.
- The second ground on which transfer is sought is that 7 out of 10 accused persons are residents of Kerala. But this can hardly be a ground for ordering the transfer of investigation. Similarly, the third ground that a majority of witnesses are also from Kerala/ South India is also no ground to order the transfer of the complaint
- The Hon’ble Court relied on its judgement passed in the case of Rana Ayyub vs. Directorate of Enforcement through its Assistant Director, 2023 SCC OnLine SC 109 wherein the Supreme Court considered the interplay between Sections 43 and 44 of PMLA on the one hand and the provisions of Sections 177 to 184 of the Code on the other hand and held that Special Court constituted under the PMLA would have jurisdiction to try even the scheduled offence and also that the Special Court will have the jurisdiction if any part of the money laundering has been committed within its jurisdiction.
- An order under Section 167(2) of the Code had to be passed necessarily by the Magistrate “to whom an accused person is forwarded”. In fact, Section 167(2) contains the words “whether 11 he has or has not jurisdiction to try the case”. Therefore, the argument revolving around Section 167(2) of the Code also fails.
Relevant Para No.
8, 9, 10, 11, 12