Final Order 14

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF SH. JITENDRA SINGH,
SPECIAL JUDGE (PC ACT) (CBI)-23,
(MPs/ MLAs CASES),
ROUSE AVENUE COURT COMPLEX: NEW DELHI.
Revision Petition No. 39/2024
CNR No. DLCT11-001095-2024
Sh. Arvind Kejriwal vs. Directorate of Enforcement
and
Revision Petition No. 38/2024
CNR No. DLCT11-001076-2024
Sh. Arvind Kejriwal vs. Directorate of Enforcement
(a) Date of institution of revision petition:-
(i) In Revision Petition No. 39/2024 : 13.11.2024
(ii) In Revision Petition No. 38/2024 : 12.11.2024
(b) Date on which order reserved : 03.12.2024
(c) Date on which order pronounced : 20.12.2024
O R D E R
1. This order shall decide the following Criminal Revision
Petitions :-
(i) Criminal Revision Petition No. 39/2024 u/s 438 r/w Sections
Revision Petition Nos. 39/2024 & 38/2024
Arvind Kejriwal vs. Directorate of Enforcement
Page no. 1 of 27
-- 1 of 27 --
440 and 441 of Bhartiya Nagarik Suraksha Sanhita, 2023 (hereinafter,
referred to as ‘BNSS, 2023’) {erstwhile Section 397 r/w 399 of Code of
Criminal Procedure, 1973 (hereinafter, referred to as ‘Cr.P.C’)} , filed
by revisionist Arvind Kejriwal, against order, dated 24.10.2024
(hereinafter, referred to as ‘impugned order’) passed by the Ld.
Additional Chief Judicial Magistrate-01, Rouse Avenue District Court,
New Delhi (hereinafter, referred to as ‘ACJM’), in Complaint Case
Number 02/2024 (hereinafter, referred to as ‘CC No. 02/2024’), in case
titled,
‘Directorate of Enforcement vs. Arvind Kejriwal’; vide which
application under Sections 213/362 BNSS, 2023 r/w Section 44 of
Prevention of Money Laundering Act, 2002 (hereinafter, referred to as
‘PMLA’) was dismissed.
(ii) Criminal Revision Petition No. 38/2024, u/s 438 r/w Section
440, 441 and 442 of BNSS, 2023, filed by revisionist Arvind Kejriwal,
against the impugned order, dated 24.10.2024, passed by the Ld.
ACJM-01, RACC, New Delhi in Complaint Case Number. 04/2024
(hereinafter, referred to as, ‘CC No. 04/2024’) u/s 200 Cr.P.C. r/w
Section 174 of Indian Penal Code, 1860 (hereinafter referred to as
‘IPC’) in case titled, ‘
Directorate of Enforcement vs. Arvind Kejriwal’,
vide which application under Sections 213/362 of BNSS, 2023 r/w
Section 44 of PMLA was dismissed.
The aforesaid Criminal Revision Petitions are based on similar
facts, which have arisen during investigation in Enforcement Case
Information Report (hereinafter referred to as ‘ECIR’) No. HIU-
Revision Petition Nos. 39/2024 & 38/2024
Arvind Kejriwal vs. Directorate of Enforcement
Page no. 2 of 27
-- 2 of 27 --
II-14/2022, dated 22.08.2022, and are thus being decided together.
BRIEF FACTS
2. Central Bureau of Investigation (hereinafter referred to as
‘CBI’) has registered RC No. 0032022A0053 dated 17.08.2022, u/s 120 B
r/w Section 477 A of IPC and Section 7 of the Prevention of Corruption
Act, 1988 (hereinafter referred to as the ‘PC Act’). It is alleged that Delhi
Excise Policy, 2021-22 was formulated as a part of criminal conspiracy by
the leaders of Aam Aadmi Party (hereinafter referred to as ‘AAP’),
including Sh. Manish Sisodia, the then Minister of Excise and others to
continuously generate and channel illegal funds to themselves and the
AAP. Since the above offfences are scheduled offences under the PMLA,
the Directorate of Enforcement (hereinafter referred to as ‘ED’), registered
ECIR No. HIU-II-14/2022 and carried out investigation. The ED has filed
Prosecution complaint on 26.11.2022. Five Supplementary Complaints
were also filed on 06.01.2024, 06.04.2023, 27.04.2023, 04.05.2023 and
02.12.2023 respectively, against Sh. Manish Sisodia and others.
3. Further investigation was conducted in order to unearth the
role of others, including that of the revisionist, who was serving as Chief
Minister of the Government of NCT of Delhi, and to trace further
proceeds of crime. During investigation, summons dated 30.10.2023,
18.12.2023, 22.12.2023, 12.01.2024, 31.01.2024, 14.02.2024, 21.02.2024
and 26.02.2024 were issued to the revisionist to appear before the
Investigating Officer and to give evidence in connection with the
investigation under PMLA. However, the revisionist did not appear before
Revision Petition Nos. 39/2024 & 38/2024
Arvind Kejriwal vs. Directorate of Enforcement
Page no. 3 of 27
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the Investigating Officer although he sent replies, dated 02.11.2023,
20.12.2023, 03.01.2024, 18.01.2024, 02.02.2024, 19.02.2024, 26.02.2024
and 04.03.2024, to the above summons. It is alleged that by intentionally
disobeying the above summons, the revisionist has committed offences u/s
174 of IPC. Accordingly
, CC No. 02/2024, ED vs. Arvind Kejriwal, in
respect of disobedience of summonses dated 30.10.2023, 18.12.2023 and
22.12.2023 and
CC No. 04/2024, ED vs. Arvind Kejriwal, in respect of
disobedience of summonses dated 12.01.2024, 31.01.2024 and 14.02.2024
were filed by the ED on 02.02.2024 and 05.03.2024, respectively.
CRIMINAL REVISION PETITION NO. 39/2024 WITH RESPECT TO
CC No. 02/2024
4. The brief facts leading to filing of the revision petition are
that the complaint in the present matter was filed by ED u/s 190 (1) (a)
Cr.P.C. r/w Section 200 Cr.P.C. r/w Section 63 (4) of PMLA for alleged
offence u/s 174 of the IPC claiming non-attendance to summons dated
30.10.2023, 18.12.2023 and 22.12.2023 issued u/s 50 of PMLA.
Proceedings before the Ld. ACJM in CC No. 02/2024
5. The said complaint was filed on 02.02.2024. Ld. Trial
Court took cognizance and summoned the revisionist herein vide order
dated 07.02.2024. Being aggrieved, the revisionist challenged the same
before the Ld. Predecessor of this court in the matter titled as “
Arvind
Kejriwal v. Directorate of Enforcement” bearing Criminal Revision No.
05 of 2024 and the same was dismissed vide order dated 17.09.2024.
Revision Petition Nos. 39/2024 & 38/2024
Arvind Kejriwal vs. Directorate of Enforcement
Page no. 4 of 27
-- 4 of 27 --
6. In the meanwhile, the revisionist on 21.08.2024, filed an
application to transfer the present case from Ld. ACJM to Ld. Special
Court under Sections 213/362 of BNSS, 2023 (erstwhile Section
193/323 of Cr.P.C.) r/w Section 44 of PMLA. On 30.08.2024, ED filed
its reply to the said application. On 24.10.2024, Ld. Trial Court passed
the impugned order, thereby, dismissing the abovesaid application. By
way of instant revision petition, the revisionist is challenging impugned
order dated 24.10.2024 passed by the Ld. Trial Court.
Grounds
7. As per Section 2 (1) (z) of PMLA, a Special Court means a
Court of Sessions designated as Special Court under sub-section (1) of
Section 43 of PMLA. In terms of Section 43 of PMLA, the designated
Court which is the Court of Session shall try the offence punishable
under PMLA. The Ld. Trial Court has erroneously dismissed the
application vide impugned order by holding that present case is distinct
from the offence pending trial under Section 4 of PMLA, as there is no
proximity of time, or continuity of action or commonality of purpose or
design. The Ld. Trial Court has failed to appreciate the fact that the
outcome of the present matter will prejudice the revisionist before the
Court of Ld. Special Judge where trial under Section 4 of PMLA is
being proceeded. The primary allegations against the revisionist is that
he allegedly disobeyed summons issued by the ED, which is the subject
matter of the present case.
8. ED has relied upon the alleged disobedience of summons
Revision Petition Nos. 39/2024 & 38/2024
Arvind Kejriwal vs. Directorate of Enforcement
Page no. 5 of 27
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in its 7th Supplementary Complaint filed before the Ld. Special Judge,
hence, order passed by the Ld. Trial Court is
ex-facie unsustainable
inasmuch the facts of the present case are part of same transaction for
attracting Section 220 (1) of Cr.P.C. It is further stated that this
supplementary prosecution complaint and the present complaint is
sufficient to reveal that both the complaints are part and parcel of same
transaction. The alleged disobedience, being integral to the offense of
money laundering, qualifies as part of the same transaction. The Ld.
Trial Court has failed to consider the fact that under the provisions of
Cr.P.C., any person accused of any offence alleged to have been
committed as part of "same transaction" can be charged at the same
trial.
9. It is settled law that in order to ascertain whether offences
alleged form part of the same transaction is whether the other set of
offences, even though distinct and separate, have been committed for
facilitating the commission of the main offence which shows continuity
of action. Moreover, if counter cases are relating to same incident, then
they should be tried by one and the same court. The main complaint
case bearing number 31 of 2022 is pending before the Special Court.
Hence, the present case is required to be committed to the said court,
even if the offences are not exclusively triable by the Court of Ld.
Special Judge. Therefore, by the virtue of Section 323 Cr.P.C. (or
Section 362 of BNSS, 2023) the Ld. Trial Court should have committed
the complaint case to the Ld. Special Court.
Revision Petition Nos. 39/2024 & 38/2024
Arvind Kejriwal vs. Directorate of Enforcement
Page no. 6 of 27
-- 6 of 27 --
10. The Ld. Counsel for the revisionist has placed reliance
upon the judgment of
State of NCT of Delhi vs. Proclaimed Offenders,
Crl. M C 594/2014, of the Hon’ble High Court of Delhi and submitted
that the Ld. Trial Court has failed to record any finding on the fact as to
whether an offence u/s 174 of IPC can be tried together with the offence
u/s 4 of PMLA or not. It is settled law that if a case triable my
Magistrate relates to a transaction with respect to cross-case being tried
by the Court of Session, the Magistrate ought to commit it before the
Court of Sessions in order to avoid conflicting findings. In support of
this proposition, reliance is placed upon the judgment of the Hon’ble
High Court of Allahabad in
Achchey Lal v. State of U.P., 1982 SCC
OnLine All 566 and the judgment of the Hon’ble Supreme Court of
India in
Dullah Pal vs. Bahar Husain, 1985 SCC OnLine All 252.
11. Further, Section 436 (2) of the Companies Act, 2013
Section 4 (2) of PC Act is
pari materia with Section 43 (2) of PMLA.
All these provisions deal with the concurrent jurisdiction of Special
Courts within the framework of Special Act, along with any related
offence arising under the Cr.P.C. Offences revealed during an
investigation under a primary Act (such as PMLA) should not be split
into separate proceedings under different laws unless expressly provided
for. Thus, pursuant to Section 43 (2) of PMLA, the present
interconnected offence should be tried by the same Special Court
handling the PMLA offence u/s 4 of the Act, thereby avoiding separate
proceedings. Section 44 of PMLA, deals with offenses triable by Ld.
Special Court, which has to be Court of Sessions. Therefore, Section 44
Revision Petition Nos. 39/2024 & 38/2024
Arvind Kejriwal vs. Directorate of Enforcement
Page no. 7 of 27
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(1) (c) of PMLA mandates that if the Court which has taken cognizance
is other than the Ld. Special Court, it shall immediately commit the
same to Ld. Special Court.
12. Once an ECIR is registered, all actions and any permission
has to be sought from the Special Court. The present case u/s 174 IPC
has been filed by ED and it is well settled that if ED wants to invoke the
provisions of PMLA, the designated court is the Court of Session,
which only had the power to consider any application emanating from
the provisions of said Act. Sections 43 and 71 of PMLA clearly
envisage that the designated court has to try any complaint emanating
from PMLA. Section 71 of PMLA has overriding effect over any other
law for the time being in force. The alleged offence u/s 63 of PMLA Act
is related to powers conferred u/s 50 of PMLA. The provisions of
Section 174 IPC is made applicable only because of provisions of
Section 63 (4) of PMLA. Ld. Counsel for the revisionist has relied upon
following judgments;
Chandini Srivastava vs. Central Bureau of
Investigation, 2016 SCC OnLine Del 860, Sudhir & Others vs. State of
M.P., 2001 Cri LJ 1072, Karan Sunil Ingole vs. The State of
Maharashtra and Anr, WP/3409/2014, decided by the Hon’ble High
Court of Judicature at Bombay on 26.02.2016 and
R.K. Gupta vs. Union
of India, Through Ministry of Corporate Affairs & Anr., W.P. (Crl.)
1891/2023, decided by the Hon’ble High Court of Delhi on 21.12.2023.
Therefore, it is prayed that the impugned order may be set aside and CC
No. 02/2024 be tried by the Special Court constituted under PMLA.
Revision Petition Nos. 39/2024 & 38/2024
Arvind Kejriwal vs. Directorate of Enforcement
Page no. 8 of 27
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Reply filed by the ED with respect to Criminal Revision Petition No.
39/2024
13. ED has filed the reply to the instant revision petition and
has stated that the impugned order is correct in the eyes of law as
offence u/s 174 of IPC is independent and standalone which should be
tried by the competent court of Magistrate having jurisdiction. It is
further stated that the offence u/s 174 IPC has been attracted as the
revisionist has intentionally disobeyed the summons issued u/s 50 of
PMLA. Moreover, there is no proximity of time and place forming part
of same transaction to try the accused in one trial. It is further stated that
the grounds taken by the revisionist has already been dealt by this court
at the time when the order wherein the cognizance and summoning of
the revisionist was challenged. The revisionist cannot be allowed to
invoke same grounds again and again. There is no infirmity in the
impugned order and thus the revision petition may be dismissed.
CRIMINAL REVISION PETITION NO. 38/2024 WITH RESPECT TO
CC NO. 04/2024
14. The brief facts leading to filing of Revision Petition No.
38/2024 are that the complaint in this matter was filed by the ED u/s 190
(1) (a) Cr.P.C. r/w Section 200 Cr.P.C. r/w Section 63 (4) of PMLA for
alleged offence u/s 174 of the IPC claiming non-attendance of summons
dated 12.01.2024, 31.01.2024 and 14.02.2024 issued u/s 50 of PMLA.
Proceedings before the Ld. ACJM in CC No. 04/2024
Revision Petition Nos. 39/2024 & 38/2024
Arvind Kejriwal vs. Directorate of Enforcement
Page no. 9 of 27
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15. The said complaint was filed on 05.03.2024. Ld. Trial
Court took cognizance and summoned the revisionist herein vide order
dated 07.03.2024. The revisionist herein challenged the said order before
the Ld. Predecessor of this court in the matter titled, ‘Arvind Kejriwal vs.
Directorate of Enforcement’ bearing Criminal Revision Petition No.
04/2024, which was dismissed by vide order dated 17.09.2024.
16. In the meanwhile, the revisionist on 21.08.2024, filed an
application to transfer the present case from the Ld. ACJM to the Ld.
Special Court under Sections 213/362 of BNSS, 2023 (erstwhile Section
193/323 of Cr.P.C.) r/w Section 44 of PMLA. On 30.08.2024, ED filed
its reply to the said application. On 24.10.2024, the Ld. Trial Court
passed the impugned order, thereby, dismissing the above application
filed by the revisionist. By way of instant revision petition, the revisionist
is challenging impugned order dated 24.10.2024 passed in CC No. 04/2024
by Ld. ACJM-01, Rouse Avenue District Court, New Delhi.
Grounds
17. The Ld. Trial Court has failed to appreciate that the
complaint was filed by the ED u/s 190(1)(a) Cr.P.C r/w 200 Cr.P.C r/w
63 (4) of PMLA, for an offence u/s 174 of the IPC, for non-attendance
in obedience to summons from public servant u/s 50 of PMLA. Section
2(1)(z) defines a 'Special Court' to mean a Court of Session designated
as Special Court under sub-section (1) of Section 43. Further, Section 43
directs constitution of a Special Court or a designated Court for trying
the offence punishable under the PMLA. Moreover, Section 43(2) of
Revision Petition Nos. 39/2024 & 38/2024
Arvind Kejriwal vs. Directorate of Enforcement
Page no. 10 of 27
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PMLA specifically empowers special Court to try an offence other than
an offence punishable u/s 4 of PMLA with which accused under the
scheme of Cr.P.C be charged at the same trial.
18. Offence u/s 174 of IPC is the offence which can be tried at
same trial alongwith offence u/s 4 of PMLA as the same was committed
in the course of same transaction. Once an ECIR is registered, all
actions and any permission that is to be sought has to be from the
designated court. It is well settled that if ED wants to invoke the
provisions of the PMLA, the designated Court is the Court of Session
alone which is competent to consider application emanating from the
provisions of PMLA. Section 43 r/w Section 71 of PMLA lays down
that any complaint emanating from PMLA has to be filed before the
Special Court. The provisions of Section 43(2) which states that ‘While
trying an offence under this Act, a Special Court shall also try an
offence other than an offence referred to in sub-section (1), with which
the accused may, under the Cr.P.C., be charged at the same trial’. The
Hon'ble High Court of Delhi in
State of NCT of Delhi vs. Proclaimed
Offenders, (Supra) has stated that ‘
In the Considered opinion of this
Court, there is no dispute that Section 174-A of the IPC is a separated
offence but the same can be tried together with other offences for which
chargesheet already stands filed.’
19. In the judgment of Hon’ble Supreme Court in case
A.R.
Antulay vs. Ramdas Sriniwas Nayak and Another, 1984 AIR 718, it was
held that, if a Special Court is created under the provisions of a special
Revision Petition Nos. 39/2024 & 38/2024
Arvind Kejriwal vs. Directorate of Enforcement
Page no. 11 of 27
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enactment, the proceedings falling under that enactment shall be held
only before the Special Court. For this purpose, the Special Court
enjoys Court of original jurisdiction as it holds a dual capacity and
powers of both the Magistrate and the Court of Sessions depending
upon the stage of the case. The offence as described u/s 63 of PMLA
Act is related to powers conferred u/s 50 of PMLA. The provisions of
Section 174 IPC is made applicable only because of provisions of
Section 63 (4) of PMLA. Therefore, the revisionist has to be tried
together with the offence of money laundering by the Special Court.
Reply filed by the ED with respect to Criminal Revision Petition No.
38/2024
20. ED has filed reply to the instant revision petition and has
raised the similar grounds as discussed in para no. 13. ED has prayed
that the revision petition may be dismissed as there is no infirmity in the
impugned order.
SUBMISSIONS BY LD. COUNSEL FOR THE REVISIONIST IN
REVISION PETITION NO. 39/2024
21. Sh. Ramesh Gupta, Ld. Counsel for the revisionist has
argued on the lines of the revision petition. It is submitted that the
impugned order is not interlocutory in nature as if the application
of the revisionist was allowed then the Ld. Trial Court had to
commit the matter to the Special Court and the proceedings before
the Ld. Trial Court would have terminated. He argued that the order is
Revision Petition Nos. 39/2024 & 38/2024
Arvind Kejriwal vs. Directorate of Enforcement
Page no. 12 of 27
-- 12 of 27 --
not temporary in nature as it will amount to termination of proceedings
before the Ld. ACJM and shall affect the rights of the parties. On merits,
it is submitted that if the offence u/s 174 of IPC is not tried jointly by
the Special Court, it will certainly cause prejudice to him as his defence
will be disclosed. It is further submitted that according to Section 43 (2)
of PMLA, offences which can be tried together under Cr.P.C. should be
jointly tried by the Special Court. Moreover, as per Section 323 of
Cr.P.C., this is a fit case which ought to be tried by the Special Court
where the offence of money laundering is being tried. It is further
submitted that it would be the interest of both the parties if the case is
tried by the Special Court and therefore it is difficult to comprehend as
to why the ED is opposing the prayer for transfer. Ld. Counsel for the
revisionist has placed reliance upon
Amar Nath v. State of Haryana,
(1977) 4 SCC 137, Banwarilal Jhunjhunwala v. Union of India, 1962
SCC OnLine SC 100, Chandini Srivastava Petitioner v. CBI & Ors, 2016
SCC Online Del 860, Pradeep S. Wodeyar v. State of Karnataka, (2021)
19 SCC 62, A.E. Pinto v. CBI, 2002 SCC OnLine Del 638, Raja
Dayanand v. State, 2004 SCC OnLine Del 866, State of Kerala v.
Ayyappan, (2006) 13 SCC 320, Kanaklata v. State (NCT of Delhi),
(2015) 6 SCC 617, Vivek Gupta v. CBI, (2003) 8 SCC 628, R.K Gupta
v. Union Of India Through Ministry Of Corporate Affairs & Anr., W.P.
(CRL) 1891/2023, and
Sudhir And Others v. State Of M.P, 2001 CRI LJ
1072.
SUBMISSIONS BY LD. COUNSEL FOR THE REVISIONIST IN
REVISION PETITION NO. 38/2024
Revision Petition Nos. 39/2024 & 38/2024
Arvind Kejriwal vs. Directorate of Enforcement
Page no. 13 of 27
-- 13 of 27 --
22. Sh. Rajiv Mohan, Ld. Counsel for the revisionist has
argued that Section 63 (4) of PMLA, which allows prosecution for the
offence u/s 174 of IPC, is only an enabling provision and does not state
the place of trial or the jurisdiction of the court; that the Act is silent on
the point whether Section 174 of IPC is triable by the Special Court or
the ordinary Court; that offence u/s 174 IPC is to be considered as
having been committed as part of the “same transaction” as the offence
for which ECIR has been recorded; that as per Section 43 (2) of PMLA,
while trying an offence under the PMLA, the Special Court also has to
try that offence with which the accused may under the Cr.P.C. be
charged at the same trial and therefore, it is the Court of
Sessions/Special Court designated u/s 43 PMLA and seized with the
prosecution complaint with respect to the said ECIR which is competent
to try the offence in question.
SUBMISSIONS BY LD. SPECIAL COUNSEL FOR THE ED
23. Mr. Zoheb Hossain, Ld. Special Counsel for the ED
submits that the contention of the revisionist that the complaint case
should jointly be tried by the Special Court as per Section 43 (2) has
already been declined in the previous revision petition wherein, the
order of cognizance was challenged. Ld. Special Counsel submits that
the revision petition may be dismissed as there is no infirmity in the
impugned order. Ld. Special Counsel has placed reliance upon
Piara
Singh vs. State of Punjab (1969) 1 SCC 379 (Para 7 and 8), Bhagat Ram
vs. State of Rajasthan, (1972) 2 SCC 466 (Para 13 & 14), State of
Revision Petition Nos. 39/2024 & 38/2024
Arvind Kejriwal vs. Directorate of Enforcement
Page no. 14 of 27
-- 14 of 27 --
Rajasthan vs. Tarachand Jain (1974) 3 SCC 72 (Para 13), P.
Reghuthaman vs. State of Kerala, 2016 SCC OnLine Ker 23889,
Sasikala Menon vs. State of Kerala, 2023 SCC OnLine Ker 475 (Para 13
& 17) and
Mary Pushpam vs. Telvi Curusumary, (2024) 3 SCC 224
(Para 1, 2o to 22)
24. I have heard Sh. Ramesh Gupta, Ld. Counsel for the
revisionist in Revision Petition No. 39/2024, Sh. Rajiv Mohan, Ld.
Counsel for the revisionist in Revision Petition No. 38/2024 and Mr.
Zoheb Hossain, Ld. Special Counsel for ED and also perused the record.
FINDINGS
Interlocutory Order
25. The interlocutory order are not revisable in nature due to
the bar contained in Section 397 (2) Cr.P.C. {analogous provision 438
(2) of BNSS, 2023}. Therefore in order to find out as to whether any
order is interlocutory in nature or not, the nature of the order has to be
subjected to strict evaluation. The Hon’ble Supreme Court had the
occasion to define and explain ‘interlocutory order’ in
Amar Nath
(Supra), wherein it has been held that the order which are interim or
temporary in nature and which do not decide or touch upon the rights or
the liabilities of party is considered to be interlocutory in nature. The
relevant extract of the said judgment is reproduced below for ready
reference:-
“6. Let us now proceed to interpret the provisions of s.
397 against the historical background of these facts. Sub-
section (2) of s. 397 of the 1973 Code may be extracted thus :
Revision Petition Nos. 39/2024 & 38/2024
Arvind Kejriwal vs. Directorate of Enforcement
Page no. 15 of 27
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"The powers of revision conferred by Sub- section (1)
shall not be exercised in relation to any interlocutory order
passed ;in any appeal, inquiry, trial or other proceeding."
The main question which falls for determination in this
appeal is as to, the what is the connotation of the term
"interlocutory order" as appearing in sub-s. (2) of s. 397 which
bars any revision of such an order by the High Court. The term
"interlocutory order" is a term of well-known legal significance
and does not present any serious diffident. It has been used in
various statutes including the Codeof Civil Procedure, Letters
Patent of the High Courts and other like statutes. In Webster's
New World Dictionary "interlocutory" has been defined as an
order other than final decision. Decided cases have laid down
that interlocutory orders to be appealable must be those which
decide 'the rights and liabilities of the parties concerning a
particular aspect. It seems to, us thatthe term "interlocutory
order" in s. 397(2) of the 1973 Code has beenused in a restricted
sense and not in any broad or artistic sense.It merely denotes
orders of a purely interim or temporary nature which do not
decide or touch the important rights, or the liabilities of the
parties. Any order which substantially affects the, right of the
accused, or decides certain rights of the parties cannot be said to
be an interlocutory order so as to bar a revision to the High
Court against that order, because that would be against the very
object which formed the basis for insertion of this particular
provision in s. 397 of the, 1973 Code. Thus, for instance, orders
summoning witnesses, adjourning cases, passing orders for bail,
calling for reports and such other steps in aid of the pending
proceeding, may no doubt amount to interlocutory orders against
which no revision would lie under s. 397 (2) of the 1973 Code.
But orders which are matters of moment and which affect or
adjudicate the rights of the accused or a particular aspect of the
trial cannot be said to be interlocutory order so as to be. outside
the purview of the revisional jurisdiction of the High Court.”
26. This court finds force in the submission of the revisionist
that if the impugned order had been decided otherwise i.e. the Ld.
ACJM had allowed the transfer application of the revisionist, case
against the revisionist would have been finally disposed of in the court
Revision Petition Nos. 39/2024 & 38/2024
Arvind Kejriwal vs. Directorate of Enforcement
Page no. 16 of 27
-- 16 of 27 --
of Ld. ACJM by way of commitment to the case to the Special Court
and therefore, in view of the same, impugned order is not an interim
order but a final order. In other words, an order capable of putting an
end to the proceedings pending in a court cannot be termed as interim
order especially when the order in question concerns with the
jurisdiction of the court and affects the rights of the parties.
JOINT TRIAL
27. The short issue involved is whether the complaint case filed
for offence u/s 174 of IPC has to be tried with the offence of money
laundering by the Special Court constituted u/s 44 of PMLA or it can be
tried separately by the court of Ld. ACJM. It is contended by the
revisionist that as per Section 43 (2) of PMLA, while trying an offence
under this Act, a Special Court shall also try an offence, other than an
offence referred to in sub-section (1), with which the accused may,
under the Cr.P.C. (2 of 1974), be charged at the same trial.
28. The question further arises as to what kind of offences and
under which circumstance they can be tried jointly with the trial of
offence of money laundering. To find out the answer to this query, the
scheme of Cr.P.C. regarding the joinder of charges as contained in
Chapter XVII has to be analysed.
29. Section 218 Cr.P.C. embodies the general rule as to trial of
accused, first, that there shall be a separate charge for each distinct
offence; and secondly, that there should be a separate trial for every
Revision Petition Nos. 39/2024 & 38/2024
Arvind Kejriwal vs. Directorate of Enforcement
Page no. 17 of 27
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such charge. This is based upon the fundamental principle of criminal
law that the accused must have notice of the charge which he has to
defend. It is intended that the separate charge has to be tried separately.
The exception to the said rule is covered under Sections 219, 220, 221
and 223 of the Cr.P.C. Moreover, Section 218 to Section 222 Cr.P.C.
provide for joinder of charges in one trial of the same accused person.
The trial of the accused for both the set of distinct offences in one and
the same trial is not permissible under the general rule contained in
Section 218 (1). The question is whether such a course is permissible
under any of the exceptions contained in proviso to Sections 218, 219,
220 and 221 of the Cr.P.C. The accused can be charged and tried in one
trial under the following circumstances:-
a) Three offences of same kind within a year may be charged
together.
b) One series of act so connected together to form the same
transaction can be charged at one trial.
c) Same act following under different definitions of offences such
offences may be tried at one trial.
d) Acts forming an offence, also constituting different offences
when taken separately or in groups.
e) Where it is doubtful what offence has been committed.
30. Apparently, the case of the revisionist does not remotely fall in
the exceptions as contained in Sections 218, 219 and 221 of the Cr.P.C.
However, it has to be analysed as to whether exception as contained in
Section 220 (1) of Cr.P.C. can be invoked in the instant matter. The
Revision Petition Nos. 39/2024 & 38/2024
Arvind Kejriwal vs. Directorate of Enforcement
Page no. 18 of 27
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revisionist can be charged and tried at one trial for the offences which
occur in one series of acts so connected together to form the same
transaction meaning thereby, where several offences are committed in
the course of the same transaction they may be tried jointly and it is
immaterial whether the offences are of the same kind or not, or whether
their number exceeds three or not, and whether the offences are
committed within a period of one year or not. Further, a court having
jurisdiction to try certain offence committed in the course of a
transaction, can hold an inquiry or trial even in respect of an offence
committed in the course of the same transaction but beyond its
jurisdiction.
31. Way back in the year 1943 in case titled as
Becharam
Mukherjee vs. Emperor and Anr., AIR 1944 CAL 224, it has been held
that ‘one series of acts so connected together to form the same
transaction’ is purely question of fact depending on proximity of time
and place, continuity of action and unity of purpose and design.
Similarly, the Hon’ble Supreme Court in case titled as
State of Andhra
Pradesh vs. Cheemalapati Ganeshwara Rao and Ors.
MANU/SC/0070/1963, has held that,
“25. .......Section 235(1), while pro- viding for the joint trial
for more than one offence, indicates that there must be connection
between the acts and the transaction. According to this provision
there must thus be a connection between a series of acts before,
they could be regarded as forming the same transaction. What is
meant by "same transaction" is not defined anywhere in the Code.
Indeed, it would always be difficult to define precisely what the
expression means. Whether a transaction can be regarded as the
same would necessarily depend upon the particular facts of each
case and it seems to us to be a difficult task to undertake a
Revision Petition Nos. 39/2024 & 38/2024
Arvind Kejriwal vs. Directorate of Enforcement
Page no. 19 of 27
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definition of that which the Legislature has deliberately left
undefined. We have not come across a single decision of any Court
which has embarked upon the difficult task of defining the
expression. But it is generally thought that where there is proximity
of time or place or unity of purpose and design or continuity of
action in respect of a series of acts, it may be possible to infer that
they form part of the same transaction. It is, however, not
necessary that every one of these elements should co-exist for a
transaction to be regarded as the same. But if several acts
committed by a person show a unity of purpose or design that
would be a strong circumstance to indicate that those acts form part
of the same transaction. The connection between a series of acts
seems to us to be an essential ingredient for those acts to constitute
the same transaction.......”
32. The Hon’ble High Court of Calcutta in
K. P. Sudarson and
Ors. vs. D.K. Bhattacharjee & Ors. MANU/WB/0524/1987, has held
that,
“ 5. …….
However, the law relating to joinder of charges
is well settled and it can be summarised by stating that when
series of acts are so connected together as to form the same
transaction, all the offences may be tried together. The question
whether the acts are so connected has to be decided considering
the proximity of time, and place, continuity of action and unity
of purpose and design. IT has been so held by a chain of
Emperor and another MANU/WB/0091/1943 : 45 Cr.L.J 1944,
666. the view taken by this Division Bench is consistent with the
view taken by another Division Bench in an earlier case in Ram
Chadra Kongo. Sawkar and Ors. vs. Emperor {1939 (40) Cr.L.J.
579}. If this test is applied in the instant case it will at once
follow that the alleged defaults by reason of proximity of time,
and place as well as by reason of unity of purpose and design are
so connected as to form part of the same transaction and,
therefore, a single complaint in respect of non-payment of
provident fund and family pension contribution in both
employee’s and the employer’s share for a particular period is
quite sustainable…..”
33. The Hon’ble Supreme Court in
Nasib Singh vs. State of
Revision Petition Nos. 39/2024 & 38/2024
Arvind Kejriwal vs. Directorate of Enforcement
Page no. 20 of 27
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Punjab, Crl. Appeal Nos. 1051-1054 of 2021 has formulated the
principles governing the joint trial and separate trials of the accused
persons. The said principles are reproduced below for ready reference:-
“38. From the decisions of this Court on joint trial and
separate trials, the following principles can be formulated:
(i) Section 218 provides that separate trials shall be conducted
for distinct offences alleged to be committed by a person.
Sections 219 - 221 provide exceptions to this general rule. If a
person falls under these exceptions, then a joint trial for the
offences which a person is charged with may be conducted.
Similarly, under Section 223, a joint trial may be held for
persons charged with different offences if any of the clauses in
the provision are separately or on a combination satisfied;
(ii) While applying the principles enunciated in Sections 218 -
223 on conducting joint and separate trials, the trial court should
apply a two-pronged test, namely, (i) whether conducting a
joint/separate trial will prejudice the defence of the accused;
and/or (ii) whether conducting a joint/separate trial would cause
judicial delay.
(iii) The possibility of conducting a joint trial will have to be
determined at the beginning of the trial and not after the trial
based on the result of the trial. The Appellate Court may
determine the validity of the argument that there ought to have
been a separate/joint trial only based on whether the trial had
prejudiced the right of accused or the prosecutrix;
(iv) Since the provisions which engraft an exception use the
phrase ‘may’ with reference to conducting a joint trial, a
separate trial is usually not contrary to law even if a joint trial
could be conducted, unless proven to cause a miscarriage of
justice; and
(v) A conviction or acquittal of the accused cannot be set aside
on the mere ground that there was a possibility of a joint or a
separate trial. To set aside the order of conviction or acquittal, it
must be proved that the rights of the parties were prejudiced
because of the joint or separate trial, as the case may be.”
34. Recently, the Hon’ble Supreme Court in case titled
Ms. P
Revision Petition Nos. 39/2024 & 38/2024
Arvind Kejriwal vs. Directorate of Enforcement
Page no. 21 of 27
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xxx vs. State of Uttrakhand & Anr., 2022 LiveLaw (SC) 554, explained
the expression ‘same transaction’ while placing reliance upon the
Judgments of
Mohan Baitha and Ors. vs. State of Bihar and Anr., (2001)
4 SCC 350 and
Anju Chaudhary vs. State of Uttar Pradesh and Anr.,
(2013) 6 SCC 384. The relevant extract of the same is reproduced below
for ready reference:-
“20.3 Thus, in the aforesaid decisions in Mohan Baitha
and Anju Chaudhary, this Court has underscored that the
expression ‘same transaction’ seems to be having vague
underpinnings; and this Court has also pointed out that no
formula of universal application could be enunciated for
determining as to whether two or more acts constitute the same
transaction. However, even while pointing out that the question
as to whether a series of acts are so connected together as to
form the same transaction is purely a question of fact, this Court
has indicated the core elements like proximity of time, unity or
proximity of place, continuity of action and community of
purpose or design, which are of relevant considerations and
when these factors are applied to common sense and ordinary
use of language, the vexed question of ‘same transaction’ could
be reasonably determined. …….”
35. What follows from the authorities, as discussed above, may
briefly be summarised thus;
(a) Whether one series of acts are so connected together as to form
the same transaction is purely a question of fact and therefore it is
not possible to enunciate any comprehensive formula of universal
application for the purpose of determining whether two or more
acts constitute the same transaction.
(b) A series of acts so connected together to form the same
transaction depends on proximity of time and place or continuity
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of action in respect of series of acts possibly be inferred as part
of the same transaction.
(c) If several acts committed by a person show a unity of purpose or
design, it would be a strong circumstance to indicate that those
acts form part of the same transaction.
d) While, applying the principles, enunciated in Sections 218 – 223
of Cr.P.C., on conducting joint and separate trials, the trial court
should apply a two-pronged test, namely, (i) whether conducting
a joint/separate trial will prejudice the defence of the accused;
and/or (ii) whether conducting a joint/separate trial would cause
judicial delay.
36. Keeping, the aforesaid principles, in mind, it is to be
examined as to whether one series of acts as alleged in the present case
could be said to be so connected together as to form the same
transaction.
37. In the instant matter, there were two sets of charges. The
offence u/s 174 of IPC is invoked as allegedly the revisionist has
intentionally disobeyed the direction issued u/s 50 of PMLA for joining
the investigation. The essential ingredients to attract offence of 174 of
IPC are :-
(i) that there was issuance of a summons,
(ii) that the accused was legally bound to attend in obedience to the
order as passed by the public servant and
Revision Petition Nos. 39/2024 & 38/2024
Arvind Kejriwal vs. Directorate of Enforcement
Page no. 23 of 27
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(iii) that the accused intentionally omitted to attend in compliance with
the above process.
The purpose for invoking Section 174 of IPC is to secure
the presence of a person so that there is no intentional disobedience to
the summons issued u/s 50 of PMLA.
38. On the other hand, the offence of money laundering
defined u/s 3 and punishable u/s 4 of PMLA is invoked when the
accused is involved in any process or activity connected with the
proceeds of crime. The essential ingredients to attract Section 3 of
PMLA are:-
Whoever
(a) acquires, owns, possesses or transfers any proceeds of crime; or
(b) knowingly enters into any transaction which is related to proceeds of
crime either directly or indirectly; or
(c) conceals or aids in the concealment of the proceeds of crime.
39. In the case in hand, each set contains two distinct charges
of two distinct offences under two distinct sections; one in the IPC and
the other under PMLA. The offence of intentional disobedience of
summons has arisen for the summons which are issued for the
investigation of offence of money laundering, however, there is no direct
or indirect connection with the main offence for which summons has
been issued.
40. Similarly, in case
Ms. P xxx (Supra) the question before
Revision Petition Nos. 39/2024 & 38/2024
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the Hon’ble Supreme Court was as to whether the offence of rape and
criminal intimidation can be tried together against the same accused in
one trial. The alleged acts of sexual relationship took place in the month
of February and March, 2016 at Delhi and the other alleged acts of
criminal intimidation took place in the month of November, 2016 over
telephone at the time when the complainant was present in her village. It
has been held that the acts in question were neither proximate in time
nor proximate in place. There was no continuity of actions and
community of purpose or design. While, relying on the judgment of
Mohan Baitha (Supra) and
Anju Chaudhary (Supra) has categorically
held that the allegations cannot be termed as part of same transaction as
there was no proximity of time. The relevant extract of the order is
reproduced below for ready reference :-
“22.1 …...However, the alleged acts of sexual
relationship took place at Delhi in the months of February and
March, 2016. The other alleged acts had been of the respondent
No. 2 hurling abuses and extending threats in or around the
month of November, 2016, which the appellant received over
telephone at her village. The acts in question were neither
proximate in time nor proximate in place; they were not of
continuity either. Significantly, while the appellant had alleged
that she submitted to the sexual acts because of the threat by the
respondent No.2 to snap the proposed alliance but it had not
been her case that the respondent No. 2 attempted to coerce her
into the same physical relationship while hurling abuses or
threatening to kill at the later part of time. Thus, it is difficult to
find continuity of actions and community of purpose or design
in two different acts leading to two different set of offences, i.e.,
one under Section 376 IPC and the other under Sections 504/506
IPC. Putting it differently, so far as the act leading to the offence
of rape under Section 376 IPC is concerned, even as per the
allegations of the appellant, that particular act was a completed
one and the original design of subjecting the appellant to
Revision Petition Nos. 39/2024 & 38/2024
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physical relations was accomplished at Delhi in the months of
February and March, 2016. As noticed, there is no allegation of
such an activity having continued later or having taken place at
Chamoli or even any threat having been extended to the
appellant to again submit to such an activity. Viewed from this
angle too, 16the completed act concerning one offence (Section
376 IPC) could not have been connected with the other acts
leading to other offences.”
“25. Upshot of the foregoing discussion is that on the
facts and in the circumstances of this case, the alleged offence
under Section 376 IPC and the other offences under Sections
504 and 506 IPC do not fall within the ambit of ‘one series of
acts so connected together as to form the same transaction’ for
the purpose of trial together in terms of Section 220 CrPC…….”
41. Apparently, the offence of intentional disobedience of
summons and the offence of money laundering operates in altogether
different sphere having no nexus with each other. Moreover, there is no
proximity of time and place or continuity of action in respect of series of
acts which could possibly be inferred as part of the same transaction. In
view of the above discussion, this court is of the considered opinion that
the offence of intentional disobedience of summons cannot be said to be
‘so connected together’ for the purpose and design of money laundering.
There is no infirmity in the impugned order. This court is in complete
agreement with the observations and findings of the Ld. Trial Court.
42. As noted above, the revisionist has challenged the
impugned orders on the grounds, inter alia, that as per Section 43(2) of
PMLA, it is the Special Court which ought to try the offence being tried
by the Court of Ld. ACJM. Here it is pertinent to mention that the said
ground had previously been taken by the revisionist in another revision
Revision Petition Nos. 39/2024 & 38/2024
Arvind Kejriwal vs. Directorate of Enforcement
Page no. 26 of 27
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petition challenging the cognizance orders which had been dismissed by
this Court vide order dated 17.09.2024. Apparently, same ground
appears to have been agitated by the revisionist twice - once for
challenging the orders vide which cognizance was taken by the Ld.
ACJM and subsequently, in this petition for challenging the impugned
orders vide which transfer application was rejected by the Ld. ACJM
Thus, it appears that this petition is nothing but a veiled attempt on the
part of the revisionist to delay the proceedings in the court of Ld. ACJM
by reagitating the same ground which had been rejected previously by
this court.
43. Accordingly, the revision petitions bearing nos. 39/2024
and 38/2024 stand dismissed.
Announced in the open court
on 20.12.2024
(Jitendra Singh)
Special Judge (PC Act) CBI-23
(MPs/MLAs Cases)
Rouse Avenue Court Complex,
New Delhi; 20.12.2024
Revision Petition Nos. 39/2024 & 38/2024
Arvind Kejriwal vs. Directorate of Enforcement
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