Madras High Court
Dr.P.Vijayan vs Deputy Director on 1 October, 2021
Crl.O.P.No.18139 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.10.2021
Coram
The Honourable Mr. Justice P.N.PRAKASH
and
The Honourable Mrs. Justice R.HEMALATHA
Crl.O.P.No.18139 of 2021
and Crl.M.P.No.9959 of 2021
1.Dr.P.Vijayan
2.V.Anitha .. Petitioners
Vs.
Deputy Director,
Directorate of Enforcement,
Government of India,
Ministry of Finance,
Department of Revenue,
2nd and 3rd Floor, No.84,
Murugesan Naickar Office Complex,
Greams road, Thousand Lights,
Chennai 600 061. .. Respondent
Petition filed under Section 482 Cr.P.C. to set aside the rejection order
dated 13.09.2021 in Crl.M.P.SR.No.12726 of 2021 in C.C.No.37 of 2015 on
Page 1 of 10
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Crl.O.P.No.18139 of 2021
the file of the Principal Sessions Court, Chennai, with further direction to
the learned Principal Sessions Judge, Chennai, to take the discharge petition
on file and decide the same on merits.
For Petitioners : Mr.N.Baaskaran
For Respondent : Mr.Rajnish Pathiyil
Special Public Prosecutor
for Enforcement Directorate
ORDER
[Made by P.N.PRAKASH, J.]
This criminal original petition has been filed seeking to set aside the
rejection order dated 13.09.2021 in Crl.M.P.SR.No.12726 of 2021 in
C.C.No.37 of 2015 on the file of the Principal Sessions Court, (Special
Court under the Prevention of Money Laundering Act, 2002, [for brevity
“the PML Act”] ), Chennai, with further direction to the learned Principal
Sessions Judge, Chennai, to take the discharge petition on file and decide
the same on merits.
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Crl.O.P.No.18139 of 2021
2. The petitioners are facing a prosecution in C.C.No.37 of 2015
under Section 3 r/w 4 of the PML Act before the Principal Sessions Court,
(Special Court for PML Act Cases), Chennai.
3. Earlier, the petitioners filed a quash petition under Section 482
Cr.P.C. in Crl.O.P.No.22222 of 2016, for quashing the prosecution against
them on various grounds. The said quash petition was heard in detail by a
Division Bench of this Court and by order dated 01.02.2021, dismissed the
quash petition, the operative portion of which, reads as under:
“11. In view of the reverse burden under Section 24 of
the PML Act, we cannot decide this issue in a quash petition
under Section 482 Cr.P.C.
In fine, this criminal original petition is dismissed as
being devoid of merits. Liberty to given to the accused to
raise all the points before the trial Court after the charges
are framed as there are prima facie materials to frame
charges. The trial Court shall proceed with the trial
uninfluenced by the observations made in this case.
Connected Crl.M.Ps. are closed.”
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Crl.O.P.No.18139 of 2021
4. After the dismissal of the quash petition, the petitioners filed a
discharge petition before the trial Court raising certain grounds and the trial
Court refused to take the discharge petition on file by impugned order dated
13.09.2021, aggrieved by which, the petitioners are before this Court.
5. Heard Mr.N.Baaskaran, learned counsel for the petitioners and
Mr.Rajnish Pathiyil, learned Special Public Prosecutor appearing for the
respondent/Enforcement Directorate.
6. To appreciate the contentions of Mr.N.Baaskaran, learned
counsel for the petitioners, it may be necessary to briefly state the
allegations against the petitioners culled out from the order dated
01.02.2021 that was passed by this Court in the quash petition in
Crl.O.P.No.22222 of 2016:
“2. The Central Bureau of Investigation (for brevity
“the CBI”) registered a case in Crime No.RCMAI1 2011 A
0003 on 12.01.2011 against P.Vijayan and his wife V.Anitha,
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Crl.O.P.No.18139 of 2021
for the offence under Section 13(2) r/w 13(1)(e) of the
Prevention of Corruption Act, 1988 (for brevity “the PC
Act”). After completing the investigation, the CBI filed a
final report in C.C.No.15 of 2014 for the said offence against
P.Vijayan and his wife V.Anitha before the Special Court for
the CBI Cases, Chennai.
3. It is the case of the CBI that P.Vijayan was the
Vice-Chancellor of the Indian Maritime University, Chennai,
from 01.03.1995 to 13.01.2011 and he has acquired assets
disproportionate to his known sources of income and that his
wife has abetted the said offence.
4. On coming to know of the registration of the
case under the PC Act, the Enforcement Directorate
registered a case in E.C.I.R.No.09 of 2014 on 31.12.2014
under the Prevention of Money Laundering Act, 2002 (for
brevity “the PML Act”). After completing the investigation,
the Enforcement Directorate filed a complaint in C.C.No.37
of 2015 in the Principal Sessions Court, (Special Court for
PML Act Cases), Chennai, against P.Vijayan and V.Anitha,
on the ground that they are projecting the proceeds of crime
as untainted money, for quashing which, this petition has
been filed under Section 482 Cr.P.C.”
7. Mr.N.Baaskaran, learned counsel for the petitioners contended
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Crl.O.P.No.18139 of 2021
that in the light of the judgment of the Supreme Court in Harish Dahiya @
Harish and Another Vs. State of Punjab and Others 1, even if a quash
petition is dismissed, a discharge petition could be maintained.
8. We carefully perused the judgment of the Supreme Court in
Harish Dahiya (supra). It is seen that the appellants in that case prayed for
discharge from the prosecution before the trial Court in the light of a
compromise petition. When the trial Court refused to discharge the accused
on the ground that on an earlier occasion, a petition under Section 482
Cr.P.C. has been dismissed, the Supreme Court held that such a stand is
untenable.
9. On facts, in this case, the Division Bench in Crl.O.P.No.22222
of 2016, had gone into all the aspects of the case and found that there are
prima facie materials for the trial Court to frame charges and had further
permitted the petitioners to raise all their defences after the charges are
framed. The petitioners are not permitting the trial Court to proceed with the
framing of charges and instead, they have filed a fresh petition before the
1 (2019) 18 SCC 69
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Crl.O.P.No.18139 of 2021
trial Court for discharge contending that the order dated 25.05.2015 that
was passed by the adjudicating authority under Section 5 of the PML Act
ordering interim attachment of the proceeds of a crime has been set aside by
the appellate authority on 07.10.2015 and therefore, the complaint filed by
the Enforcement Directorate before the Special Court on 30.11.2015 stands
vitiated.
10. We are unable to persuade ourselves to agree with the
submission made by the learned counsel for the petitioners, because, the
appellate authority has only remanded the adjudication proceedings to the
adjudicating authority for fresh disposal as under:
“13. In the facts and circumstances, the appeal is
allowed by way of remand without expressing any opinion
as to the merits of the case. We direct the Adjudicating
Authority to pass fresh adjudication order within six
months from the date of this order after giving reasonable
opportunity to the appellants to present their case/defence.
The appellants shall file their pleadings and documents
before the Adjudicating Authority within a period of 30
days from the date of this order or on a date as may be
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Crl.O.P.No.18139 of 2021
fixed by the Adjudicating Authority. During the pendency of
proceedings before the Adjudicating Authority the
provisional attachment order shall continue, but all the
parties shall maintain status quo in respect of properties
attached vide Provisional Attachment Order No.03/2015
dated 12th March, 2015 issued under Section 5(1) of PMLA.
The appellants shall not transfer, commit waste, alienate or
create any third party rights in the attached properties or
transfer possession of the attached properties to any third
party. Parties to bear their own cost.”
11. In our considered opinion, Sections 3 and 4 of the PML Act are
penal provisions and action taken thereunder is for punishment of the
offender for projecting the proceeds of a crime as untainted property. Thus,
the prosecution under Section 3 / 4 of the PML Act is an action in
personam, whereas, the action taken by the adjudicating authority under
Section 5 of the PML Act is independent of the prosecution under Section 3
r/w 4 of the PML Act, inasmuch as, the adjudicating authority is empowered
to ensure that the proceeds of the crime do not disappear and are available
for the trial Court to confiscate the same at the end of the trial, depending
upon the outcome of the trial.
12. In other words, the adjudication proceedings are step-in-aid.
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Crl.O.P.No.18139 of 2021
The Enforcement Directorate would have to prove the offence under Section
3 of the PML Act before the Special Court in accordance with the rules of
evidence, coupled with various presumptions envisaged under the PML Act.
Therefore, the order of the appellate authority setting aside the adjudication
order and remanding the matter to the adjudicating authority for fresh
disposal, can, by no stretch of imagination, vitiate the criminal prosecution
before the Special Court under the Code of Criminal Procedure.
13. Therefore, we do not find any infirmity in the order of the
Principal Sessions Judge, (Special Court for PML Act Cases), Chennai,
declining to take up the discharge petition, as it was only a dilatory tactic
that was being adopted by the petitioners to protract the trial.
In the result, this criminal original petition stands dismissed.
Connected Crl.M.P. is closed.
(P.N.P.,J.) (R.H.,J.)
01.10.2021
nsd
P.N.PRAKASH,J.
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Crl.O.P.No.18139 of 2021
and
R.HEMALATHA,J.
nsd
To
1.The Principal Sessions Judge,
(Special Court under the Prevention of
Money Laundering Act, 2002,
Chennai.
2.The Deputy Director,
Directorate of Enforcement,
Government of India,
Ministry of Finance,
Department of Revenue,
2nd and 3rd Floor, No.84,
Murugesan Naickar Office Complex,
Greams road, Thousand Lights,
Chennai 600 061.
3.The Special Public Prosecutor,
Madras High Court,
Chennai – 600 104.
Crl.O.P.No.18139 of 2021
01.10.2021
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