The division bench of Justice V. Ramasubramanian and Justice Pankaj Mithal of the Apex court in the case of KA Rauf Sherif Vs Directorate of Enforcement & Ors held that the lack of jurisdiction of a Court to entertain a complaint can be no ground to order its transfer.
Brief facts:
The factual matrix of the case is that the Petitioner was the general secretary of the campus front of India, which got banned as an unlawful association by the Union of India, Ministry of Home Affairs under Section 3 of the Unlawful Activities (Prevention) Act, 1967.
The Petition was filed seeking transfer of the case from the court of Special Judge, PMLA, Lucknow to the Special Judge, PMLA at Ernakulam, Kerala.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the Petitioner contended that the proceedings before the Special Judge bench, Lucknow is without jurisdiction. Furthermore, 7 out of 10 accused are residents of Kerala. It was also contended that the filing of the prosecution complaint at Lucknow is therefore unlawful because the petitioner was properly remanded to custody by learned Special Court, Ernakulam under Section 167(2) of the Code.
Contentions of the Respondent:
The learned counsel appearing on behalf of the Respondent contended that the question of territorial jurisdiction is already settled by this court by way of a judgment titled Rana Ayyub vs. Directorate of Enforcement through its Assistant Director. It was further contended that it is an abuse of the legal system as the petition for transfer was submitted after the commencement of PW-1's chief examination and after the dismissal of the discharge application of one of the co-accused.
Observations of the court:
The Hon’ble Court observed that the question of the territorial jurisdiction of a Special Court to take cognizance of a complaint under the PMLA should be decided with reference to the place or places where any of the activities or processes that constitute the offence under Section 3 took place, regardless of where the FIR relating to the scheduled offence was filed and regardless of which Court took cognizance of the scheduled offence.
It was also observed that the Special Court, PMLA, Lucknow does not lack territorial jurisdiction to hear the matter. In any case, a court's lack of jurisdiction to hear a complaint cannot be a reason to compel its transfer. A congenital defect of lack of jurisdiction, assuming it exists, benefits the accused and so does not need to be corrected at the accused's request to his detriment.
It was noted that the ground on which transfer is sought is that 7 out of 10 accused persons are residents of Kerala cannot be considered a valid reason to transfer the case.
It was also noted that:“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 he has or has not jurisdiction to try the case”. Therefore, the argument revolving around Section 167(2) of the Code also fails.”
Based on these considerations, the Hon’ble Court was of the view that there exist no legal and valid points to transfer the case.
The decision of the court:
With the above direction, the Hon’ble Court dismissed the transfer petition.
Case Title: KA Rauf Sherif Vs Directorate of Enforcement & Ors
Coram: Hon’ble Mr. Justice V. Ramasubramanian and Hon’ble Mr. Justice Pankaj Mithal
Case No: Transfer Petition (Crl.) No. 89 of 2023
Citation: 2023 Latest Caselaw 294 SC
Advocates for the Appellant: Ms. Devina Sehgal, AOR, Mr. Abdul Shukoor Mondambra, Adv., Mr. Shaikh S.Dastgir, Adv., Mr. Shaikh Nikali Barsha, Adv., Mr. A.K. Kaul, Adv.
Advocates for the Respondent: Mr. K.M. Nataraj, ASG, Mr. V. Joshi, Adv., Mr. Sharath Nambiar, Adv., Mr. Vinayak Sharma, Adv., Mr. Indira Bhakar, Adv., Mr. Anuj, Adv., Mr. Nakul Chengappa K.K. Adv., Mr. Chitransh Sharma, Adv., Mr. Mukesh Kumar Maroria, AOR
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