Madras High Court: In a petition filed by V. Senthil Balaji, Minister for Electricity, Prohibition & Excise, Tamil Nadu, under Section 482 of Code of Criminal Procedure Code, 1973 (‘CrPC’) to set aside the return docket order passed by Principal District and Sessions Judge, Special Court (‘PDSJ’) constituted under Section 43(1) of the Prevention of Money Laundering Act, 2002, and consequently direct the PDSJ for the trial of cases relating to MP and MLA , the division bench of R. Suresh Kumar* and K. Kumaresh Babu, JJ. while setting aside the impugned order, has directed the PDSJ to withdraw the transfer and entertain the bail application by numbering the same, if it is otherwise in order, and decide the said application after hearing both sides, at the earliest. Further, it directed the Registry to return the original bail application case papers filed along with this original petition to Senthil Balaji with acknowledgement after retaining the photocopy of the same.
Background:
Senthil Balaji is a sitting MLA, against whom Enforcement Case Information Report (‘ECIR’) has been registered by the prosecution and a complaint was lodged under Section 44(1)(b) and 45(1) read with Section 3 and 4 of Prevention of Money Laundering Act, 2002 (‘PMLA Act’) on 12-08-2023. On 14-06-2023, Senthil Balaji was arrested relating to the money laundering case and during his judicial custody, as he had to undergo a major surgery, that surgery also he had undergone on 21-06-2023. Thereafter, on the request of the Directorate of Enforcement (‘ED’), police custody was given between 07-08-2023 and 12-08-2023 (six days), and he had been in the custody of ED. Thereafter, a final report had been filed by ED on 12-08-2023.
Therefore, it was the case of Senthil Balaji that, since the investigation is over, no more interrogation is required, and since final report is filed, therefore his judicial custody which has already crossed 78 days is no longer required. Further, as per the recent report of the doctors, he has to take medication as he has developed some more ancillary complaints. Therefore, on medical grounds also, he is entitled to bail. Thus, he had moved a bail application on 28-08-2023 before the Special Court, which has already been designated as a Special Court to try the cases against MLAs and MPs.
The aforesaid case, though had been initially pending before the PDSJ, who, by virtue of the Special Court has been constituted to try the cases against MLAs and MPs, has decided to make over the case to the said Special Court and accordingly an order has been passed on 14-08-2023 , wherein the PDSJ has transferred the case papers to the Special Court for trying the cases exclusively against MLAs and MPs. Therefore, as of now the case is pending before the Special Court. Thus, Senthil Balaji filed a bail application before the Special Court on 28-08-2023.
However, the Special Court returned the bail application, by stating that the bail application has to be filed before the PDSJ. Thereafter, Senthil Balaji re-presented the papers before the PDSJ wherein, the Court also returned the bail application. Again, after re-presentation before the Special Court, the Court orally returned the bail application. Thus, Senthil Balaji filed the present petition.
Analysis:
The Court said that an offence punishable under Section 4 of the PMLA Act, has to be tried only by Special Courts designated under Section 43(1) of the PMLA Act by virtue of the notification of the Central Government issued in consultation with the Chief Justice of the High Court concerned, where the proposed Court is located. Further, the Court noted that under Section 43(1) of the PMLA Act, it is only the Central Government that is empowered to designate such Courts. Therefore, by virtue of the notification dated 05-02-2016, the Central Government already exercised such powers in consultation with the Chief Justice of the High Court and Courts have been designated as Special Courts.
The Court said that since the territorial jurisdiction of the present case is in Chennai, and as Chennai, under the notification issued by the Central Government, comes under the jurisdiction of the PDSJ, Chennai, the said case has to be tried in the same Court, since the alleged offence is to be punished only under Section 4 of the PMLA Act.
Thus, the Court held that the transfer of the case or made over made by the PDSJ by transferring the case papers to the Special Court for trial of cases exclusively against MLAs and MPs, is not in consonance with Section 43(1) of the PMLA Act vis-à-vis the notification issued by the Central Government. Therefore, the Court opined that the bail application filed by the Senthil Balaji has to be heard and disposed only by the Principal Judge, Chennai.
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[V. Senthil Balaji v Deputy Director, 2023 SCC OnLine Mad 6024, Order dated 04-09-2023]
Advocates who appeared in this case :
For Petitioner: Senior Counsel N.R. Elango
For Respondent: Special Public Prosecutor for Enforcement Directorate N. Ramesh
Buy Code of Criminal Procedure, 1973 HERE
