Recently, in a detailed ruling on the scope of protection available to public servants under Section 218 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the Rajasthan High Court held that the recovery of unaccounted cash and gold from a government officer’s residence cannot be treated as an act done in discharge of official duty, thereby negating the need for prior sanction to prosecute under the Prevention of Money Laundering Act, 2002 (PMLA). Justice Anoop Kumar Dhand upheld the Special Judge, PMLA and CBI Cases, Jaipur Metro-I’s order, which had taken cognizance against the petitioner under Section 3 and Section 4 of the PMLA.
The case arose from a search conducted at the petitioner’s residence, during which enforcement officials reportedly found Rs. 2,31,15,000 in cash and a gold bar worth Rs. 61,00,000 stored inside an almirah. The petitioner, a serving public officer at the time, was booked under the PMLA, following which a charge sheet was filed. Challenging the proceedings, the petitioner argued that, being a public servant not removable from office except by government sanction, he could not be prosecuted without prior approval as mandated by Section 218 of the BNSS. It was contended that in the absence of such sanction, both the filing of the charge sheet and the trial court’s cognizance were invalid.
Appearing for the Petitioner, counsel argued that as the accused was a public servant not removable from service without government sanction, the absence of prior approval rendered the prosecution unsustainable under the law. The Enforcement Directorate, however, opposed this contention, maintaining that the alleged possession of disproportionate assets had no nexus with any official function or act performed in the course of duty, and therefore, the statutory protection under Section 218 of the BNSS was inapplicable.
The Court clarified that the provision applies only to acts done “while acting or purporting to act in the discharge of official duty.” Justice Anoop Kumar Dhand observed, “In the instant case, the allegation against the petitioner is that when a search was made, it was found that a sum of Rs.2,31,15,000/- in cash alongwith one gold bar amounting to Rs.61,00,000/- were found in a bag kept in the almirah of the petitioner’s residence and the same was found to be in possession of the petitioner. In the considered opinion of this Court, the aforesaid alleged act does not fall within the purview of ‘an act performed in official discharge of duties’.”
The Court further noted that since the alleged conduct bore no relation to any official function, no prior sanction was necessary before taking cognizance. While holding that “the judgments relied on by counsel for the petitioner are not applicable in the facts and circumstances of this case,” the Court dismissed the revision petition, concluding that no procedural infirmity tainted the cognizance order.
Justice Anoop Kumar Dhand clarified that the observations made were confined to examining the validity of cognizance and that the petitioner would remain at liberty to raise all defences during trial, stating, “It is expected from the trial Court to deal with available defence of the petitioner strictly in accordance with law, without being influenced by any of the observations made by this Court.”
Case Title: Ved Prakash Yadav Vs. Directorate Of Enforcement
Case No: S.B. Criminal Revision Petition No. 1927/2024
Coram: Hon’ble Justice Anoop Kumar Dhand
Advocate for Petitioner: Advs. Dheeraj Singhal, Pankaj Singhal, Bhawna Hadda
Advocate for Respondent: Advs. Akshay Bhardwaj, Jaivardhan Singh Shekhawat
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