- (1.) A complaint bearing complaint case No. 9 of 2009 was lodged in the Court of Special Judge (Vigilance)-cum-Additional Judicial Commissioner, Ranchi by the complainant Rajiv Sharma alleging therein that the then Chief Minister Shri Madhu Koda, on being elected from one of the Assembly Constituencies, held office of the Minister, Mines and Co-operative, from February, 2005 to September, 2006 and then the office of the Chief Minister from September, 2006 to August, 2008. During the aforesaid period he amassed huge properties movable as well as immovable by indulging in corrupt practices for embezzlement of the public fund in collusion with Vinod Sinha and Sanjay Kumar Choudhary (petitioner). While holding the said offices, he entered into an agreement (M.O.U) with 44 big Industrial Houses to set up the industries in the State of Jharkhand and thereby he received bribe through Vinod Sinha and this petitioner. Having acquired ill-gotten money in crores in connivance with Vinod Sinha and this petitioner, they purchased/invested money in number of companies not only in India but also at abroad including Dubai where crores of rupees were transferred through Hawala. That apart, money was also invested in crores in purchasing land and also in purchasing mines in a foreign country, namely, Liberia. The complainant has also alleged that other Ministers named in the complaint petition also amassed huge properties by illegal means.
(2.) LEARNED court below on receiving the said complaint forwarded it to the Officer-in-Charge, Vigilance Police Station, Ranchi under Section 156(3) of the Code of Criminal Procedure for its institution and investigation. Accordingly, it was registered as Vigilance P. S. Case No. 9 of 2009 under Sections 420, 423, 424, 465 read with Section 120B of the Indian Penal Code and also under Sections 7, 10,11 and 13 of the Prevention of Corruption Act, 1988. Subsequently, on the basis of the allegation made in the vigilance case, Enforcement Directorate lodged Enforcement Case Information Report (ECIR) against Shri Madhu Koda and other Ministers including this petitioner and other persons alleging therein that there has been reasons to believe from the facts disclosed in the vigilance case that the accused persons under criminal conspiracy acquired huge assets both in India and outside India by indulging themselves in criminal act under the Indian Penal Code and also under the Prevention of Corruption Act and as such, prima facie, materials to form an opinion that the offence of money laundering has been committed which is punishable under Section 4 of the Prevention of Money Laundering Act, 2002 (hereinafter referred to as 'the Act'). Being aggrieved with the lodgment of the said Enforcement Case Information Report (ECIR) the instant application has been filed on behalf of the petitioner praying therein to quash the entire criminal proceeding of Enforcement Case Information Report No. ECIR/0/PAT/09/AD. The said prosecution has been sought to be quashed on the ground that unless and until it is established that accused persons acquired properties by committing an offence under Sections 420,423,424 read with Section 120B of the Indian Penal Code, one in terms of Section 3 of Act cannot be said to have acquired property with the proceeds of crime and projected it as untainted property. Thus, it was submitted that the instant prosecution by the Enforcement Directorate under Section 4 of the Act is pre-matured and is liable to be quashed.
(3.) LEARNED counsel appearing for the petitioner in this respect submits that one can be held liable for an offence under Section 4 of the Act, if he is involved in any process or activities with the proceeds of Schedule Offence and not any other offence but surprisingly, the petitioner and others are being prosecuted on the premise that the properties acquired by the money are proceeds of the crime committed under Sections 420, 423, 424 of the Indian Penal Code but those Offences were declared to be the Scheduled offences under the Prevention of Money Laundering (Amendment) Act, 2009 which came into force with effect from 6-3-2009 whereas Shri Madhu Koda did hold post of Chief Ministership from September, 2006 to August, 2008 and, therefore, the petitioner or any other accused cannot be said to have acquired properties in connivance with other accused with the proceeds of the crime and as such, the prosecution under Section 4 of the Act is quite bad. Learned counsel further submits that before proceeding with the prosecution under Section 4 of the Act, the prosecuting agency needs to establish that Scheduled crime/crimes have been committed and out of proceeds of such crime properties have been acquired which have been projected as untainted properties which stand gets substantiated from the provision of the Act relating to attachment as proviso to Section 5 does stipulate that unless report in terms of Section 173 of the Code of Criminal Procedure in relation to Scheduled Offence is submitted, provision of attachment needs not be resorted to. Thus, when such restriction has been put under the statute in the matter of attachment of the property acquired by the tainted money, one can easily comprehend that the Legislature would not have intended to get the prosecution launched under the Act unless it is established first that any Scheduled Offence has been committed. But, surprisingly, instant prosecution has been launched only on the vague allegations that too nastily on newspaper reportings about the indulgence of the accused persons in the Schedule Offence and hence, the instant proceeding is nothing but an abuse of the process of law and hence, it be quashed.;