Brief Facts
- A search and seizure action under Section 132 of Income Tax Act, 1961 was carried out against a person named Suryakant Tiwari and FIR was lodged against him for the offenses under Sections 186, 204, 120-B and 353, 384 of IPC. Subsequently, the Appellant was arrested in the said FIR. Thereafter, the ED sought judicial custody of her. The Appellant filed a Bail application under Section 437 of CrPC along with Section 45 and 46 of PMLA Act before the Special Court. The Special Court rejected the bail application. Thereafter the Appellant approached the High Court. However, the high court also rejected the bail application.
- The Bail application was heard by the High Court on 17.04.2023 and the judgment was delivered on 23.06.2023. In the meantime the charge sheet was filed by the police in the predicate offence on 08.06.2023 and the cognizance was taken on 16.06.2023 for the offence under section 204 and 353 IPC. The charge sheet was filed for the offence under section 204 and 353 of the IPC clarifying therein that “accused found to have committed offence under Section 384 of IPC with his henchmen at Chhattisgarh State for which the report would be prayed to Chhattisgarh Police 16.06.2023 through proper channel……..”.
- However, these developments were not placed on record before the High Court. Before the Supreme Court these documents were placed on record and it was also informed to the Supreme Court that these documents were made available to the High Court.
- Thereafter being aggrieved with the order of High Court, the Appellant filed appeal before the Apex Court on the ground that scheduled offences under the Prevention of Money Laundering Act, 2002 had been dropped from the chargesheet. The Appellant also submitted that the high court had perused a chargesheet and a cognisance order, but had refused to recognise the absence of scheduled offences against her.
Issues
- Whether the women accused under PMLA Act be granted the benefit of the first proviso to Section 45 of the PMLA Act while considering bail?
- Whether the proceedings under the PMLA would not be maintainable when the FIR was filed for the offences including the Scheduled Offence, however, the charge sheet was not filed in respect to the Scheduled Offence?
- Whether it is the obligation on the advocate to verify facts from records before drafting a petition and before arguing in the court?
- Whether the facts and documents not presented in the original proceedings be placed on record while filing the SLP, that too without disclosing this fact that the documents were not part of the original record?
Held
- The Apex Court dismissed the Appeal and cost of Rs. 1,00,000/- was imposed. The use of the expression “may be” in the first proviso to Section 45 clearly indicates that is not mandatory rather discretionary.
Proviso to section 45 not mandatory but discretionary.
- No doubt the courts need to be more sensitive and sympathetic towards the category of persons included in the first proviso to Section 45 and similar provisions in the other Acts, as the persons of tender age and women who are likely to be more vulnerable, may sometimes be misused by the unscrupulous elements and made scapegoats for committing such Crimes, nonetheless, the courts also should not be oblivious to the fact that nowadays the educated and well placed women in the society engage themselves in the commercial ventures and enterprises, and advertently or inadvertently engage themselves in the illegal activities. In essence, the courts should exercise the discretion judiciously using their prudence, while granting the benefit of the first proviso to Section 45 PMLA to the category of persons mentioned therein. The extent of involvement of the persons falling in such category in the alleged offences, the nature of evidence collected by the investigating agency etc., would be material considerations.
Proceedings under the PMLA are maintainable
- It is very much pertinent to note that when the FIR is registered under particular offences which include the offences mentioned in the Schedule to the PMLA, it is the court of competent jurisdiction, which would decide whether the Charge is required to be framed against the accused for the scheduled offence or not. The offences mentioned in the chargesheet by the I.O. could never be said to be the final conclusion as to whether the offences scheduled in PMLA existed or not, more particularly when the same were mentioned in the FIR registered against the accused. As held by the Three-Judge Bench in Vijay Madanlal (SLP(Crl.) No. 4634 of 2014), it is only in the event the person named in the criminal activity relating to a scheduled offence is finally absolved by a Court of competent jurisdiction owing to an order of discharge, acquittal or because of quashing of the criminal case (scheduled offence) against him/ her, there can be no action for money laundering against such a person or person claiming through him in relation to the property linked to the stated scheduled offence.
- In the instant case, there is neither discharge nor acquittal nor quashing of the criminal case by the court of competent jurisdiction against Suryakant Tiwari in the predicate/ scheduled offence.
Duty of advocate to verify pleadings
- It cannot be gainsaid that every party approaching the court seeking justice is expected to make full and correct disclosure of material facts and that every advocate being an officer of the court, though appearing for a particular party, is expected to assist the court fairly in carrying out its function to administer the justice. It hardly needs to be emphasized that a very high standard of professionalism and legal acumen is expected from the advocates particularly designated Senior advocates appearing in the highest court of the country so that their professionalism may be followed and emulated by the advocates practicing in the High Courts and the District Courts.
- Though it is true that the advocates would settle the pleadings and argue in the courts on instructions given by their clients, however their duty to diligently verify the facts from the record of the case, using their legal acumen for which they are engaged, cannot be obliviated.
Relevant Para No.
14, 18, 19, 24, 28, 29