Mehul Choksi Vs State Of Maharashtra (Bombay High Court)
Bombay High Court held that application of Enforcement Directorate u/s. 4 read with Section 12 of the Fugitive Economic Offenders Ordinance, 2018 praying that the Applicant (Mehul Choksi) be declared as a fugitive economic offender is acceptable as requirement of Section 4 duly complied.
Facts- An FIR was registered with BS & FC (CBI) Mumbai on 15.2.2018 u/s. 120-B read with 420 of IPC and under section 13 (2) read with 13(1)(d) of the Prevention of Corruption Act 1988. Pursuant to the FIR, the charge sheet was filed by the CBI before the learned Special CBI Judge on 15.5.2018. The learned judge took cognizance against the Applicant and the other accused on 22.5.2018. It was registered as Special CBI Case No.38/2018 and is pending before the Special Judge for CBI, Sessions Court, Greater Bombay. In pursuance to the registration of the FIR by the CBI, The Enforcement Directorate registered Enforcement Case Information Report. The ED filed a complaint u/s. 45 of the Prevention of Money Laundering Act, 2002 before the Special PMLA Court. That court took cognizance on 3.7.2018 against the Applicant (Mehul Choksi) and the other accused and the case is pending before that court at the stage of appearance.
On 10.7.2018, the ED filed an application u/s. 4 read with Section 12 of the Fugitive Economic Offenders Ordinance, 2018 praying that the Applicant (Mehul Choksi) be declared as a fugitive economic offender and his properties be confiscated under FEO Act.
The Applicant filed an application before the learned Special Judge praying for dismissal of the application filed under the FEO Act on the ground that the application u/s. 4 of the FEO Act was not accompanied by an affidavit as contemplated under section 297 of Cr.P.C. The same was rejected by the impugned order and hence the present application is filed.
Conclusion- Held that this is an Act to provide for measures to deter fugitive economic offenders from evading the process of law in India by staying outside the jurisdiction of Indian courts, to preserve the sanctity of the rule of law in India and for matters connected therewith or incidental thereto. Therefore, section 4 of the FEO Act and Rule 3 of the FEO Rules are made to further the objective of this Act and they cannot be bypassed by taking recourse to the other provisions of Cr.P.C. to contend that the affidavit was not proper.
Looking at all these aspects of this matter, firstly I do not find any infirmity in the verification and even otherwise I find that all the requirements under Section 4 of the FEO Act and under Rule 3 of the FEO Rules are properly complied with in this case. Therefore, I do not see any reason to interfere with the impugned order and hence the application is rejected. The interim relief stands vacated. In view of disposal of the main Application, nothing survives in the pending Interim Applications and same are also disposed of.
FULL TEXT OF THE JUDGMENT/ORDER OF BOMBAY HIGH COURT
1. Heard Shri Vijay Aggarwal, learned counsel for the Applicant in both Applications, Shri A.R. Patil, learned APP for the Respondent No.1-State and Shri H.S. Venegavkar, learned Special P.P. for the Respondent No.2.
2.The Applicant has challenged the order dated 30.8.2019 passed by the learned Special Judge, Greater Bombay below Exhibit-55 in Criminal M.A. No. 997/2018. Said application was filed by the Applicant before the learned Special Judge for directions to dismiss the application preferred under Section 4 of the Fugitive Economic Offenders Act 2018 (hereinafter referred to as the “FEO Act”). The learned Special Judge directed that the matter would proceed further for hearing of the arguments of learned counsel for the respondent before him (i.e the Applicant herein) and thereafter for rejoinder by learned SPP for the Applicant before him (the Respondent No2 in the present application before this Court) on the main application under Section 4 of FEO Act.
3. The brief background of the case is mentioned in the present application as follows:
i. An FIR No.RC02(E)/2018 was registered with BS & FC (CBI) Mumbai on 15.2.2018 under section 120-B read with 420 of IPC and under section 13 (2) read with 13(1)(d) of the Prevention of Corruption Act 1988. Pursuant to the FIR, the charge sheet was filed by the CBI before the learned Special CBI Judge on 15.5.2018. The learned judge took cognizance against the Applicant and the other accused on 22.5.2018. It was registered as Special CBI Case No.38/2018 and is pending before the Special Judge for CBI, Sessions Court, Greater Bombay. In pursuance to the registration of the FIR by the CBI, The Enforcement Directorate (for short, ‘ED’) registered Enforcement Case Information Report [ECIR] No. MBZO-I/04/2018. The ED filed a complaint under section 45 of the Prevention of Money Laundering Act, 2002 (for short, ‘PML Act’) before the Special PMLA Court. That court took cognizance on 3.7.2018 against the Applicant and the other accused and the case is pending before that court at the stage of appearance.
ii. On 10.7.2018, the ED filed an application under section 4 read with Section 12 of the Fugitive Economic Offenders Ordinance, 2018 praying that the Applicant be declared as a fugitive economic offender and his properties be confiscated under FEO Act.
iii. The Applicant filed an application before the learned Special Judge praying for dismissal of the application filed under the FEO Act on the ground that the application under section 4 of the FEO Act was not accompanied by an affidavit as contemplated under section 297 of Cr.P.C.. This application was filed below Exhibit-55 which was rejected by the impugned order and hence the present application is filed.
SUBMISSIONS ON BEHALF OF THE APPLICANT :
4. Learned counsel Shri Aggarwal appearing for the Applicant relied on various provisions of the FEO Act, the Code of Criminal Procedure 1973 and the PML Act. He made the following submissions:
i. Section 16 of the FEO Act puts the burden on the Director or the authorized person to establish that an individual is a fugitive economic offender or that the property in question was the proceeds of crime or any other property in which the individual, alleged to be an economic offender, has an interest. He therefore submitted that the averments in the application are important and they have to be supported by a proper affidavit. In the present case, the verification clause below the application under section 4 of the FEO Act is not proper. The requirements of section 297 of Cr.P.C. and the provisions of the Criminal Manual issued by the Bombay High Court for the guidance of the criminal courts are not complied with and hence the application was not maintainable.
ii. There are various averments in the application filed by the Deputy Director of ED which were not true and could not be true. Therefore, it was necessary that the application was supported by an affidavit so that the person who filed the application was bound by the averments in the application. As an example of one of the false statements, learned counsel referred to paragraph-9.5 of the said application, wherein it was mentioned that the Applicant had left the country under suspicious circumstances in the first week of January 2018, whereas the FIR was filed in February 2018 against him and the Applicant could not have imagined about the future registration of the FIR. He also disputed the averment that the Applicant was the prime conspirator and that he was the mastermind behind the scam. He submitted that all these averments were required to be supported by a proper affidavit. He submitted that this application is decided under the procedure mentioned in the FEO Act, which mainly depends on the averments in the application and therefore filing of this application in proper form was very important. Therefore, it was all the more necessary that the application was supported by an affidavit adhering to the necessary ingredients of section 297 of Cr.P.C., which is mandatory in nature as it uses the word ‘shall’. He submitted that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. The other methods of performance are necessarily forbidden. In support of this contention, he relied on a Division Bench judgment of this Court in the case of Euro School Education Trust vs. Divisional Fee Regulatory Committee, Pune and others1
iii. He submitted that Sub-section (2) of Section 4 of Cr.P.C. provides that all offences under any law, other than IPC, shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions of Cr.P.C., but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. He laid emphasis on Section 5 of Cr.P.C., which mentions that nothing contained in Cr.P.C., in the absence of a specific provision to the contrary, shall affect any special or local law or any special form of procedure prescribed by any other law. He submitted that unless there was inconsistency between the FEO Act and Cr.P.C., it cannot be said that the provisions of Cr.P.C., and in particular section 297 of Cr.P.C. were not applicable. According to Shri Aggarwal, there was no inconsistency between FEO Act and Cr.P.C. in respect of these provisions.
iv. His next submission was that, under section 21 of FEO Act it was mentioned that the provisions of the said Act shall have effect notwithstanding anything inconsistent therewith contained in any other law. Therefore, since there was no inconsistency with Cr.P.C., this overriding effect did not affect the provisions of Cr.P.C. He submitted that section 22 of FEO Act makes the position more clear as it is mentioned that the provisions of FEO Act shall be in addition to and not in derogation of any other law. Therefore, according to Shri Aggarwal, the provisions of the FEO Act will have to be read in addition to the provisions of Cr.P.C..
v. Shri Aggarwal referred to Rule 3 of the Declaration of Fugitive Economic Offender (Forms And Manner of Filing Application) Rules 2018 (hereinafter referred to as ‘FEO Rules’). He submitted that this Rule will have to be read with Section 297 of Cr.P.C.. In support of this submission, he relied on the judgment of a Single Judge Bench of this court in the case of M/s. Jaimin Jewelery Exports Pvt. Ltd. and others Vs. The State of Maharashtra and another2. In the said judgment, reference was made to paragraphs-3 to 5 of Chapter VII of the Criminal Manual.
