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TEAM CODE: 136

IN THE SUPREME COURT OF INDIA AT NEW DELHI

IN THE MATTER OF:

SHALINI MUKHERJEE & ORS. (PETITIONER) V CBI & ORS. (RESPONDENT)

(CRIMINAL APPEAL NO. 200 OF 2017)

clubbed with

DIBYOJYOTI BASU (PETITIONER) V CBI & ORS. (RESPONDENT)

(CRIMINAL APPEAL NO. 201 OF 2017)

and

SHALINI MUKHERJEE (PETITIONER) V DIRECTORATE OF ENFORCEMENT (RESPONDENT)

(CIVIL APPEAL NO. 170 OF 2017)

NLUD INTERNAL MOOT SELECTION 2017

MEMORIAL for RESPONDENT


2017
TABLE OF CONTENTS

LIST OF ABBREVIATIONS III


INDEX OF AUTHORITIES VI
STATEMENT OF JURISDICTION IX
STATEMENT OF FACTS X
ISSUES RAISED XII
SUMMARY OF ARGUMENTS XIII
ARGUMENTS ADVANCED 1
I. PROCEEDINGS ARISING OUT OF O.C. 240/2015 ARE NOT CONTRARY TO ARTICLE 20(1) OF
THE CONSTITUTION OF INDIA 1
A. THE PROCEEDINGS ARISING OUT OF O.C. 240/2015 ARE CIVIL IN NATURE. 1
B. SECTION 5 OF THE PMLA IS A PROCEDURAL LAW AND IS THUS UNAFFECTED BY ARTICLE
20(1) 2
C. THE DECISION IN MAHANIVESH IS PACED ON A MISPLACED ASSESSMENT OF LAW 3
II. THAT SECTION 50 OF THE PMLA IS NOT IN CONTRAVENTION TO THE ARTICLE 20(3) OF
THE CONSTITUTION OF INDIA. 4
A. PROCEEDINGS ARE JUDICIAL IN NATURE 4
B. THAT THE SAID PERSON WAS NOT IN THE CHARACTER OF AN ACCUSED DURING SUCH

QUESTIONING 4
C. THAT THERE WAS NO COMPULSION AGAINST THE SAID PERSON 5
D. THAT THE SAID PERSON WAS NOT MADE A WITNESS AGAINST HERSELF 7
III. THAT THE CENTRAL BUREAU OF INVESTIGATION HAS EXERCISED ITS POWERS RIGHTLY
SO AS TO FILE THE SUPPLEMENTARY REPORT AGAINST THE PRIVATE PERSONS. 8
A. THAT THE PREVENTION OF CORRUPTION ACT APPLIES TO PRIVATE PERSONS AS WELL 8
B. ARGUENDO, ACTION AGAINST MS. SHALINI MUKHERJEE IS WARRANTED FOR BECAUSE THE
OFFENCES FELL UNDER THE SAME TRANSACTION WITHIN THE CODE 10
IV. THE SUPPLEMENTARY REPORT FILING ALLEGATIONS UNDER SECTION 13(1)(D)(III) OF
THE PREVENTION OF CORRUPTION ACT IS NOT LIABLE TO BE SET ASIDE 12
A. A PRIMA FACIE CASE UNDER SECTION 13(1)(D)(III) OF THE PCA DOES NOT REQUIRE AN

ELEMENT OF MENS REA TO BE FULFILLED. 12


V. THE COGNIZANCE OF OFFENCES UNDER THE PC ACT AND IPC IS NTO LIABLE TO BE

HELD AS BAD IN LAW 14

I
A. PRIOR SANCTION IS NOT REQUIRED FOR PROSECUTION UNDER SECTION 405 AND 420 OF THE
IPC READ WITH SECTION 120-B 14
B. THE COGNIZANCE TAKEN BY THE SPECIAL JUDGE CANNOT BE CHALLENGED BY VIRTUE OF
SECTION 19(3) OF THE PCA ACT. 15
VI. THAT THE SUPPLEMENTARY COMPLAINT FILED IS JUST, LEGAL AND MUST BE SET AS

GOOD IN LAW 16
A. THAT THE ADJOURNMENT GRANTED IS CORRECT IN LAW 16
B. NO VIOLATION OF THE RESTRICTIONS SO IMPOSED UPON THE INVESTIGATIVE POWERS HAS
TAKEN PLACE 17
C. THE SUPPLEMENTARY COMPLAINT PERTAINS TO THE SAME TRANSACTION 18
PRAYER XX

II
LIST OF ABBREVIATIONS

Abbreviation Term

Acc. Accused
AIR All India Reporter

All. Allahabad

Anr. Another

Art. Article

BOMLR. Bombay Law Reporter

C.C. Criminal Complaint

CA/Crim. App. Criminal Appeal

CBI Central Bureau of Investigation

CLC . Criminal Law Cases

CLR Commonwealth Law Reports

Co. Company

CPC Code of Civil Procedure


Cri LJ. Criminal Law Journal

Crim. Criminal

CrPC Code of Criminal Procedure

Edn. Edition

GLH Gujarat Law Herald

HC High Court
Honble Court Honorable Court

ILR Indian Law Reports

Ind Cas Indian Cases

IPC Indian Penal Code, 1860

Kar. Karnataka
Ker. L T Kerala Law Times

III
Ltd. Limited

Mad. Madras

Mah. Maharashtra

Misc. Miscellaneous

MLJ Madras Law Journal


MP Madhya Pradesh

No.s Numbers

Ors. Others

OUP Oxford University Press

PAO Provisional Attachment Order

Para. Paragraph
Pat. Patna

PC Privy Council

PCA Prevention of Corruption Act, 1988

Pg. Page

PML Act, 2002/PMLA The Prevention of Money Laundering Act 2002

Pt. Part
Pvt. Private

QB Queens Bench

RCR Recent Criminal Reports

S. Section

SC Supreme Court

SCC Supreme Court Cases


SCL SEBI and Corporate Laws

SCR. Supreme Court Reports

SLR Service Law Reporter

Supp. Supplementary

the Directorate Directorate of Enforcement

IV
TLR Times Law Reporter

UoI Union of India

USA United States of America

V. /VS. Versus

W.P. Writ Petition

V
INDEX OF AUTHORITIES

INDIAN CASES
A.M. Kutty Sankaran Nair Vs. P.V. Kumara Nair 1963 Ker. L.T. 845. --------------------------- 9
Afroz Mohamad Hasanfatta v. Deputy Director & Othrs. R/CR.MA/17000/2014 ------------ 18
Alive Hospitality and Food Private Limited v. Union of India, 2014 (2) RCR (Crim.) 311 ---- 2
Amit Banerjee v. Shri Manoj Kumar, Assistant Director, Enforcement Directorate C.R.M.
No. 1209 of 2016.------------------------------------------------------------------------------------ 16
Amit Banerjee v. Shri Manoj Kumar, Assistant Director, Enforcement Directorate CRM. No.
1209 of 2016 ----------------------------------------------------------------------------------------- 18
B. Rama Raju v. Union of India, (2011) 108 SCL 491 ---------------------------------------------- 2
Babu Ram Verma Vs. State of U.P 1971(2) S.L.R. 649 ------------------------------------------- 10
Baijnath And Ors vs State Of Madhya Pradesh CRA No.1097 of 2016 ------------------------ 14
Balbir Singh v state of PunjabCrl.Misc. M No. 779 of 2010. -------------------------------------- 9
Bhagwandas Goenka v Union of India AIR 1961 Mad 47 ------------------------------------------ 5
Brend v Wood [1946] 62 T.L.R. 462 ---------------------------------------------------------------- 12
CBI, Bank Securities & Fraud Cell vs. Ramesh Gelli and Ors Criminal Appeal Nos. 1077-
1081 ----------------------------------------------------------------------------------------------------- 9
Chandra Babu v. State Rep. Inspector of Police (2015) 8 SCC 774. ---------------------------- 18
Confederation of Ex-serviceman Association v Union of India (2006) 8 SCC 399. ----------- 14
Dineshchandra Jamnadas Gandhi v. State of Gujarat (1989) 1 SCC 420. --------------------- 14
Emperor v. Kehsavlal Tribhuvandas (1944) 46 BOMLR 555 ------------------------------------ 11
G.A. Monterio v. State of Ajmer AIR 1957 SC 13. --------------------------------------------------- 9
Harshad S. Mehta vs Central Bureau Of Investigation 1992 (24) DRJ 392 -------------------- 16
Hitesh Nagpal vs State CRL.M.C. 646/2008 & Crl MA 2412/2008----------------------------- 11
Kathi Kalu Oghad v. The State of Bombay 1961 AIR 1808. ------------------------------- 5, 6, 7, 8
Kedar Nath Bajoria And Anr. vs The State Of West Bengal AIR 1954 SC 660. ----------------- 1
L.K Advani v. Central Bureau of Investigation 1997 Cri LJ 2559(Delhi). ------------------------ 9
Lily Thomas v Union of India (2000) 6 SCC 224 ---------------------------------------------------- 3
M. Krishna Reddy v State Deputy Superintendent of Police 1992 (4) SCC 45 ----------------- 13
M. Narayanan Nambiar vs State of Kerala 1963 AIR 1116 -------------------------------------- 13
M. Shobhana v. The Assistant Director, Directorate of Enforcement CDJ 2013 MHC 4134 -- 6
M.P. Sharma v. Satish Chandra 1954 AIR 300 --------------------------------------------------- 4, 7

VI
Mahanivesh Oils & Foods Pvt. Ltd. v Directorate of Enforcement, W.P.(C) 1925/2014------- 3
Murlidhar Meghraj Loya v. State of Maharashtra (1976) 3 SCC 684 -------------------------- 14
Nandini Satpathy v. P.L. Dani 1978 AIR 1025. --------------------------------------------------- 7, 8
Nathulal v. State of M.P. AIR 1966 SC 43 ---------------------------------------------------------- 12
Om Prakash Gupta vs State of U. P. 1957 SCR 423 ----------------------------------------------- 15
Paresha G. Shah v State of Gujarat 2016 GLH (1) -------------------------------------------------- 2
Parkash Singh Badal v. State of Punjab 2007 1 SCC(Cri) 193 ------------------------------------ 8
Percy Rustomji Basta v State of Maharashtra 1971 AIR 1087---------------------------------- 5, 7
Radhey Shyam Khemka v State of Bihar 1993 (3) SCC ------------------------------------------- 13
Ramesh Chandra Mehtra v. State of West Bengal 1970 AIR 940---------------------------------- 5
Ramraja Tevan v. Emperor 32 Cr LJ 30. ------------------------------------------------------------ 11
Ranjit D. Udeshi vs State Of Maharashtra 1965 AIR 881 ---------------------------------------- 13
Rattiram & Ors vs State Of M.P.Tr. Insp. of Police CRA No. 223 of 2008 -------------------- 15
Sajjan Singh v State of Punjab AIR 1964 SC 464---------------------------------------------------- 3
Shambhoo nath Misra v. State of U.P. (1997) 5 SCC 326 ---------------------------------------- 15
Shamsher Bahadur v. State of Bihar AIR 1956 Pat 404 ------------------------------------------- 11
Shankerlal v. Collector of Central Excise, AIR 1960 Mad 225 ------------------------------------ 5
Shiv Bahadur Singh Rao v. State of UP AIR 1953 SC 394 ----------------------------------------- 3
Shreekantiah Ramayya Munipalli vs The State Of Bombay 1955 AIR 287 --------------------- 15
Sivanmoorthy & Ors. v. State Rep. By Inspector of Police (2010) 12 SCC 29. ---------------- 17
Smt. Selvi & Ors. v. State of Karnataka (2010) 7 SCC ---------------------------------------------- 5
Standard Chartered Bank v. Directorate of Enforcement (2005) 4 SCC 530. ----------------- 14
State of Andhra Pradesh v. R Venku Reddy (2002) 7 SCC 631 ------------------------------------ 9
State of Karnataka v. Selvi (2010) 7 SCC ------------------------------------------------------------- 5
State of Madhya Pradesh v.Shri Ram SinghAIR 2000 SC 873 ------------------------------------- 8
State of Maharashtra Vs. Mayer Hans George 1965 AIR 722 ----------------------------------- 13
State of Punjab v Karmal Singh2008(9) SCC114. --------------------------------------------------- 9
State of West Bengal v S.K. Ghosh, 1963 AIR 255 ----------------------------------------------- 1, 2
State v. S. BangarappaAIR 2001 SC 222. --------------------------------------------------------- 10
The Joint Registrar/Administrator Vs P. Siva Kumar W.A. No. 1801 of 2013 ------------------ 8
The State Through Lokayuktha Police Vs. Sadashiva S. Yelagod Criminal Revision Petition
No. 659 of 2008, 200072 of 2015 ------------------------------------------------------------------- 9
Veera Ibrahim v. State of Maharashtra 1976 AIR 1167. ------------------------------------------- 7

VII
Vinay Tyagi v. Irshad Ali (2013) 5 SCC 762-------------------------------------------------------- 18
Vivek Gupta v. Central Bureau of Investigation 2004 SCC (Cri) 51 ---------------------------- 10
Y.S. Parmar v Shri. Hira Sikngh Paul 1959 Supp (1) SCR 213 ---------------------------------- 13
BOOKS
Constitution of India ----------------------------------------------------------------------------------- 10
Durga Das Basu, Commentary On the Constitution Of India------------------------------------ 1, 3
Eskridge, William N Eskridge, Philip P Frickey and Elizabeth Garrett, Dynamic Statutory
Interpretation (1st edn, Harvard University Press 1994 ---------------------------------------- 13
Leonard W. Levy, 'The Right Against Self-Incrimination: History and Judicial History'---4

FOREIGN CASES
Duplex Printing Press Co. v. Deering 254 U.S. 443 (1921). ------------------------------------- 13
EEOC v. Arabian American Oil Co. 499 U.S. 244 (1991) 251-256 ----------------------------- 13
The Prevention of Money Laundering Act 2002 ----------------------------------- 2, 3, 4, 6, 10, 17
Francis Hart Dyke, Esq. v. Henry William Elliot, (1872) LR 4 PC------------------------------ 12
R. v. Pitt (1762) 3 Burr 1335 -------------------------------------------------------------------------- 10
ARTICLES
Craies and Walter S Scott, A Treatise On Statute Law (7th edn, Sweet & Maxwell 1936) -- 12
G.P. Singh, Principles of Interpretation of Statutes, (9th edn, Lexis Nexis 2015) ------------ 12
John Frederick Archbold and others, Criminal Pleading, Evidence and Practice 2002 (35th
edn, Sweet & Maxwell 2002) ---------------------------------------------------------------------- 12
Mahabir Prashad Jain, Indian Constitutional Law --------------------------------------------------- 7
Sherras v De Rutzen [1895] 1 QB 918 --------------------------------------------------------------- 12
The Oxford Handbook of the Indian Constitution ---------------------------------------------------- 1
VN Shuklas Constitution of India (12th edn, Eastern Book Company 2013) ------------------- 3
William Oldnall Russell and J. W. Cecil Turner, Russell On Crime (1st edn, Sweet &
Maxwell 1986) --------------------------------------------------------------------------------------- 12

VIII
STATEMENT OF JURISDICTION

THE CRIMINAL APPELLATE JURISDICTION OF THE SUPREME COURT IS INVOKED UNDER

ARTICLE 136 OF THE CONSTITUTION OF INDIA BY FILING CRIMINAL APPEAL NO. 200 OF 2017
AND CRIMINAL APPEAL NO. 201 OF 2017 BY SHAILINI MUKHERJEE AND ORS, AND DIBYJYOTI
BASU RESPECTIVELY.

THE CIVIL APPELLATE JURISDICTION OF THE SUPREME COURT IS INVOKED UNDER ARTICLE 32
OF THE CONSTITUTION OF INDIA BY FILING A WRIT PETITION (CIVIL) NO. 130 OF 2017

THE PARTIES SHALL ACCEPT ANY JUDGMENT OF THE COURT AS FINAL AND BINDING UPON THEM
AND SHALL EXECUTE IT IN ITS ENTIRETY AND IN GOOD FAITH.

IX
STATEMENT OF FACTS

M/S Gladiator Pvt. Ltd. owned by Ms. Shalini Mukherjee became the first
2000-2004 private company to be awarded the license for hydel & air production as part
of the Looking Forward Policy of the Govt. of West Bengal.
Gladiator received a formal communication from M/S Energize India Ltd. - a
subsidiary of M/S Energize USA wherein all assets & shareholding would be
Mid 2004 sold to Energize India without selling the company itself. Gladiator had not
begun operations and only had a skeletal framework for a plant at a site &
fourteen licenses.
Energize India officially became 100% shareholder in Gladiator after
31.12.2004- meetings between State Govt. officials, managements of Gladiator & Energize
01.02.2005 USA took place. Shalini left West Bengal and bought a bungalow in New
Friends Colony (New Delhi) registered in her name.
Shalini was remunerated for her services even as Gladiator barely managed
any production throughout the decade. All projects hit one snag after another
with most land lying unused. New government began reviewing policies of
2004-2014 previous government. Several were prosecuted under the PC Act by the CBI in
the state. Govt. of West Bengal wanted something to stick against Mr.
Dibyojyoti Basu working as Secretary- Ministry of Tourism because his
decision to stop an entourage with the kin of the Chief Minister had irked CM.
Enforcement Directorate passed a Provisional Attachment Order under 5
PMLA as against Shalinis bungalow, stating reasons to believe that it was a
01.11.2015
proceeds of crime. A copy of said reasons was forwarded to the Adjudicating
Authority.
Shalini was asked for a statement explaining the source of funds behind her
bungalow, her relations with Dibyojyoti and officials at private companies.
10.11.2015 She made a statement under objection after Dy. Director informed her about
the provisions of 50 PMLA making her bound to state the truth, when she
objected citing Art.20 (3).
ED filed an Original Complaint No. 240/2015 seeking confirmation of PAO
01.12.2015 before Kolkata Sessions Court, where CBI sought more time to complete
further investigation into allegations against the public servants.

X
AA confirmed attachment directing ED against taking possession within three
months to enable Shalini to prefer an Appeal and also preferred Writ Petition
01.02.2016 before Delhi High Court relying on the Mahanivesh judgment by Ld. Single
Judge of Delhi High Court which was challenged in an Appeal before a
Division Bench.
ED filed complaint before Special Court in Delhi against all private entities for
offences punishable under 3 & 4 PMLA. Special Court did not take
28.02.2016
cognizance of offences because ED case against Shalini was pending, and
therefore proceedings adjourned.
CBI filed Supplementary Report under 173(8) Cr.P.C. against Dibyojyoti &
two other public servants stating that the decision taken by Dibyojyoti was
without any public interest and therefore all accused persons were part of a
01.03.2016
conspiracy to commit corruption. Separate allegation under 120B read with
406 IPC against Shalini, Energize India and Energize USA for causing a
criminal breach of trust was made.
Special Court took cognizance of all offences and next date for hearing was
01.04.2016 fixed to ensure presence of foreign parties and CBI was directed to ensure the
process well in advance.
Special Court took up PMLA proceedings, where ED sought an adjournment
to file a Supplementary Complaint with regards to Dibyojyoti. ED filed a
May-July
Supplementary Complaint naming him as co-accused, and the Court directed
2016
proceedings in Kolkata to be transferred to Delhi as per law and cognizance
was taken under 3 and 4 PMLA.
Division Bench reversed Mahanivesh case in appeal and thereafter Shalini
withdrew her writ petition, and instead filed a SLP under Art.136 and a
separate Writ Petition under Art.32 before the Supreme Court along with other
Late 2016
private persons. Dibyojyoti preferred a separate challenge but the Supreme
Court clubbed these petitions together and posted the question of law before an
unprecedented 15 judge bench.

XI
ISSUES RAISED

-I-

WHETHER THE PROCEEDINGS ARISING OUT OF O.C. 240/2015 ARE CONTRARY TO ARTICLE 20(1)
OFTHE CONSTITUTION OF INDIA.

-II-

WHETHER SECTION 50 OF THE PMLA IS CONTRARY TO ARTICLE 20(3) OF THE CONSTITUTION


OF INDIA.

-III-

WHETHER THE SUPPLEMENTARY REPORT FILED BY THE CBI, MAKING ALLEGATIONS UNDER
SECTIONS 406 IPC, AND THOSE OF SECTION 120-B READ WITH 13(1)(D) PC ACT AGAINST THE
PRIVATE PERSONS, MUST BE SET ASIDE AS BAD IN LAW.

-IV-

WHETHER SUPPLEMENTARY REPORT FILED BY THE CBI, MAKING ALLEGATIONS UNDER


SECTION 13(1)(D)(III) PC ACT IN ABSENCE OF ANY MENS REA, MUST BE SET ASIDE AS BAD IN
LAW;

-V-

WHETHER COGNIZANCE OF OFFENCES COULD NOT BE TAKEN BE TAKEN IN THE ABSENCE OF


SANCTION UNDER SECTION 19 PC ACT AND SECTION 197 CR.P.C.;

-VI-
WHETHER THE SUPPLEMENTARY COMPLAINT FILED BEFORE THE LD. SPECIAL COURT, DELHI,
WAS ILLEGAL AND MUST BE SET ASIDE AS BAD IN LAW

XII
SUMMARY OF ARGUMENTS

I. It is submitted before the Honourable Court that the provisions of Section 5 of the
PMLA are not violative of Article 20(1) due to the following reasons. 1. As
proceedings under Section 5 are civil in nature 2. Section 5 simply acts as procedural
law for retrieval of proceeds of crime 3. The Decision in Mahanivesh must be upheld.

II. It is submitted before the Honourable Court that the Respondents have not, by any
action of their officials violated Article 20(3) of the Constitution. On the other hand,
the Respondents have acted in consonance with their duties under Section 50 of PMLA.
There has been no breach in the guarantee against testimonial compulsion as enshrined
in the Constitution, by the authorities against the Petitioner. The arguments to
substantiate on the same are four-pronged. Firstly, that the proceedings are judicial in
nature and therefore admissible in Court. Secondly, that the Petitioner at the time of
such interrogation did not stand in the character of an accused. Thirdly, that there was
no compulsion on the said person. No inducement, threat or coercion to obtain such
statement was undertaken and instead the questioning was in consonance with the
procedure laid down by law. And fourthly, that the Petitioner was not made to be a
witness against herself as the statement can only be incriminatory following any
investigation that takes place.

III. It is submitted that the said individual is a private person who is covered under
the ambit of definition of a public servant in the PC Act and the legislative intent
is to be looked at for the same. There are two tests to prove whether the said individual
is a public servant or not, by understanding if the person is in the service or on the
payroll of the government and whether any entrustment of public duty has occurred for
the same. It has also been argued that the offences fall under the same transaction
within the Code.

IV. It is submitted that the Supplementary Report filed under Section 173(8) cannot
be considered bad in law as Section 13(1)(d)(iii) does not require an element of
mens rea to be fulfilled. A textual interpretation of the words and the intention of the
Parliament as well as the placement of the provisions does not allude to mens rea. The
intention of the Act also seeks to implicitly exclude mens rea.

XIII
V. It is submitted that the Cognizance taken by the Special Judge is legal and should
not be set aside as bad in law. Sanction is not a mandatory pre condition under both
Section 19 of the PCA and Section 197 of the CrPC as the office of a public officer is
vitiated on commission of criminal conspiracy and criminal breach of trust and there
was no false judgment in law.

VI. It has been argued that the Supplementary Complaint is legal and just in law, and
therefore must not be set aside. The arguments to substantiate upon the same are
three-fold. Firstly, that the adjournment granted is correct in law. Secondly, no violation
of restrictions that are imposed upon the investigative powers has taken place and
thirdly, that the Supplementary Complaint pertains to the same transaction.

XIV
ARGUMENTS ADVANCED

I. PROCEEDINGS ARISING OUT OF O.C. 240/2015 ARE NOT CONTRARY TO ARTICLE 20(1) OF
THE CONSTITUTION OF INDIA

1. Rajan Kappor filed the O.C. against Shalini before the Appropriate Adjudicating, on
01/12/2015. The Confirmation of the Provisional Attachment Order (PAO) was sought
on 1/11/2015. The Provisional attachment Order was considered a requirement as there
existed reasons to believe1 that the property might be disposed off by Shalini. The
property that was liable to be attached, was a proceed of crime, trial for which is pending
against the petitioners2 and not attachment of proceeds arising out of the crime would led
the proceedings against her being frustrated and ends of justice not being met.

2. It is thus submitted that proceedings under Section 5 of the PMLA and attachment of
the property against Shalini was not contrary to Article 20(1) and thus the proceedings
under O.C. 240//2015 can be sustained. It is submitted by the Respondents that 1. The
Proceedings arising out of O.C. 240/2015 are civil in nature 2. Section 5 of the PMLA is a
procedural law and is thus not affected by Article 20(1) 3. The decision in Mahanivesh
Oils and Foods Pvt Ltd. v Directorate of Enforcement (Mahanivesh) is based on a
misplaced assessment of law.

A. THE PROCEEDINGS ARISING OUT OF O.C. 240/2015 ARE CIVIL IN NATURE.


3. The protection that Article 20 accords as a fundamental right is two pronged in nature,
firstly from conviction under an offence which has been made criminal after commission
of the act and secondly punishment greater than that would have been levied at the time of
commission of the act.3 Thus a mandatory pre condition of attracting protection under
Article 20 is that, the law being challenged must be penal in nature.4 This is aptly illustrated
when the constitutional validity of a provision for forfeiture of property wherein
embezzlement involved usage of government funds.5 A Constitutional bench proceeded to

1
Moot Case Study, 14.
2
Moot Case Study, 13.
3
Chandra A and Satish M, 'Criminal Law and Constitution', The Oxford Handbook of the Indian Constitution (1st
edn, OUP 2016) 493; Durga Das Basu, Commentary On the Constitution Of India (1st edn, Sarkar 1968).
4
Kedar Nath Bajoria And Anr. vs The State Of West Bengal AIR 1954 SC 660.
5
State of West Bengal v S.K. Ghosh, 1963 AIR 255 [17].

1|Page
hold such a provision to be a mode of speedier recovery of money against a time barred
event and the forfeiture of property was considered to not be of the nature of a punishment
or a penalty as envisaged under Article 20.6

4. Further proceedings arising out of Section 5 were observed to be civil in nature in the
case of Paresha Shah v State of Gujarat.7 Strong reliance is placed on the fact that Section
6(15) of the PMLA, 2002 makes an explicit exclusion of the Civil procedure Code and
accord authorities to follow their own procedure with due regard to principles of natural
justice.8 It is thus submitted that the Prevention of Money Laundering Act would have
either made an explicit exclusion or inclusion of the Criminal procedure Code9 if the
proceedings under the Act were envisaged to be Criminal in nature.

5. The Constitution validity of Section 5 as regards to Article 20(1) and retrospective


applicability of punishment has also been upheld by the Andhra Pradesh High Court10, and
the same opinion has also been relied upon and affirmed by the Gujarat High Court.11 The
applicability of Section 5 was allowed with regard to property acquired prior to the
enactment of the provision. The Court based its reasoning on the fact that the Parliament
was accorded with the authority to assess harm cause by such economic offences and a
prescription of appropriate remedies were allowed for the same.12 Consequently Article 20
was not held to be prohibitive of laws which prescribe attachment or confiscation of
proceeds of crime.13

B. SECTION 5 OF THE PMLA IS A PROCEDURAL LAW AND IS THUS UNAFFECTED BY ARTICLE


20(1)
6. The placement of Section 5 in the broader structure of the Act, is under Chapter III,
titled Attachment, Adjudication and Confiscation14 and is not a part of Chapter II15 which

6
State of West Bengal v S.K. Ghosh, 1963 AIR 255 [13].
7
Paresha G. Shah v State of Gujarat 2016 GLH (1) 329.
8
The Prevention of Money Laundering Act 2002, s 6(15).
9
Paresha G. Shah v State of Gujarat 2016 GLH (1) 329 [31].
10
B. Rama Raju v. Union of India, (2011) 108 SCL 491 [53].
11
Alive Hospitality and Food Private Limited v. Union of India, 2014 (2) RCR (Crim.) 311.
12
B. Rama Raju v. Union of India, (2011) 108 SCL 491 [53].
13
Ibid [62].
14
The Prevention of Money Laundering Act 2002, ch 2.
15
Ibid ch 3.

2|Page
pertains to the substantive offences of money laundering that the act seeks to punish.16 Thus
it is submitted that the placement of the provision is an important indicator to deduce
legislative intent in categorizing Section 5 as a procedural provision.

7. It has been recognized extensively across jurisprudence of the Supreme Court and
various other legal systems across the world that a bar against ex post fact laws does not
extend to procedural laws.17 Thus a law, providing for trial by means of a new procedure is
not barred by Article 20(1).18

8. As forfeiture of property arising out of proceeds of crime may also be sought under
Section 451 of the CrPC19, Section 5 should be understood to merely introduce a new
procedure for orders of confiscation on specific conditions being met. In view of wider
public interest, procedural safeguards in the from of confirmation by the Adjudicating
Authority20 have also been built into the act to harmonize personal liberty and the goal of
frustration of money laundering proceedings by disposition of property.21

C. THE DECISION IN MAHANIVESH IS PACED ON A MISPLACED ASSESSMENT OF LAW


9. The Bench in Mahanivesh has erred in laying down the position of law that Section 5
and the offence of money laundering under Section 3 are inextricably linked and thus
retrospective applicability of Section 5 cannot be permitted.22 The overarching goal behind
Section 5 is to provide for a procedure for faster recovery of property and to avoid
frustration in proceeding, thus it is applicable to proceeds of crime arising out of
Scheduled Offences.23 The Scheduled Offences contain a diverse list of offences including
offences from under the arms act.24 Thus the nature of the Schedule indicates the intent of
legislature in creating a procedural law to prevent stagnation of proceedings.

16
The Prevention of Money Laundering Act 2002, s 3(4).
17
Lily Thomas v Union of India (2000) 6 SCC 224; Sajjan Singh v State of Punjab AIR 1964 SC 464; Calder v
Bull 3 US 386 (1798).
18
Shiv Bahadur Singh Rao v. State of UP AIR 1953 SC 394, 437.
19
The Code of Criminal Procedure, s 451.
20
The Prevention of Money Laundering Act 2002, s 8.
21
MP Singh, VN Shuklas Constitution of India (12th edn, Eastern Book Company 2013) 19596.
22
Mahanivesh Oils & Foods Pvt. Ltd. v Directorate of Enforcement, W.P.(C) 1925/2014 [21]-[24].
23
B. Rama Raju v. Union of India, (2011) 108 SCL 491 [53]-[59].
24
The Prevention of Money Laundering Act 2002, Schedule A.

3|Page
10. Thus it is submitted that the proceedings arising out O.C. 240/2015 are not liable to be
quashed on grounds of being in contravention of Article 20(1).

II. THAT SECTION 50 OF THE PMLA IS NOT IN CONTRAVENTION TO THE ARTICLE 20(3) OF
THE CONSTITUTION OF INDIA.

11. The right against self-incrimination has its origins in the maxim Nemo tenetur seipsum
prodere and the due process of law as laid in the Magna Carta.25 Though every accused
person has the constitutional guarantee of such a right, it has been widely interpreted by the
Honble Court in numerous judgments.26 It is submitted that the protection within Article
20(3) cannot be invoked in the particular case and the actions of the authorities is justified
and fair, and the arguments to substantiate upon the same are four-pronged. Firstly, that the
proceedings are judicial in nature. Secondly, that the person was not an accused during such
questioning. Thirdly, that there was no compulsion. Fourthly, that Ms. Shalini Mukherjee
was not made a witness against herself.

A. PROCEEDINGS ARE JUDICIAL IN NATURE


12. It is submitted that the questioning initiated by the Directorate falls under the scope of
a judicial proceeding as laid down in Sections 193 and 228 of the Indian Penal Code.27
Therefore, any statement recorded under the provisions of the Act is admissible in the
Court.

13. The proceeding may not take place before a Court, but the investigation directed by law
preliminary to such proceedings is also judicial in nature.28 The Respondent is an
investigative agency empowered to look into the aspect of the proceeds of crime and money
laundering, and the summons issued under the provision29 are merely to ensure the
cooperation of the Petitioner Ms. Shalini Mukherjee.30

B. THAT THE SAID PERSON WAS NOT IN THE CHARACTER OF AN ACCUSED DURING SUCH

QUESTIONING

25
Leonard W. Levy, 'The Right Against Self-Incrimination: History and Judicial History' (1969) 84 Political
Science Quarterly.
26
M.P. Sharma v. Satish Chandra 1954 AIR 300.
27
Prevention of Money Laundering Act 2002, s 50(4).
28
Indian Penal Code 1860, s 193.
29
Prevention of Money Laundering Act 2002, s 50(2).
30
Dalmia Cement (Bharat) Limited v. Assistant Director, Directorate of Enforcement WP. No.36838 of 2014.

4|Page
14. On numerous instance, the Honble Court has held that the protection of Article 20(3)
clearly applies when the person making a particular statement does so while standing as an
accused31 or in the character of an accused.32 To stand in the character of an accused, it is
essential that a formal accusation or complaint has taken place against the said person.33

15. In the particular case, it is submitted that the complaint filed before the Magistrate on
01.10.2015 was with regards to a different case from the one for which a summon was
issued by the Directorate of Enforcement34 and therefore Ms. Shalini Mukherjee did not
stand in the character of an accused during such questioning.

16. It is also submitted that the person was merely summoned to ensure cooperation in the
investigation of the case, and calling upon a person to make a statement by authorities
cannot be said to make them an accused of an offence.35

C. THAT THERE WAS NO COMPULSION AGAINST THE SAID PERSON

17. There is a constitutional guarantee against any form of testimonial compulsion, which
is said to have been breached when an accused person has been compelled to be a witness
against herself/himself.36 It is submitted before the Court that the essentials needed to prove
the same cannot be met in this case.

18. In previous instances, the Honble Court has established that any evidence put forth
cannot be admitted if the same has been obtained after any kind of compulsion.37 The Court
further observed that a positive act of volition that furnishes evidence is a testimony, and
any coercion to obtain such testimony renders it void.38

31
Percy Rustomji Basta v State of Maharashtra 1971 AIR 1087.
32
Kathi Kalu Oghad v. The State of Bombay 1961 AIR 1808.
33
Bhagwandas Goenka v Union of India AIR 1961 Mad 47.
34
Moot Case Study, para 14.
35
Ramesh Chandra Mehtra v. State of West Bengal 1970 AIR 940.
36
Kathi Kalu Oghad v. The State of Bombay, 1961 AIR 1808.
37
Smt. Selvi & Ors. v. State of Karnataka (2010) 7 SCC [88].
38
Shankerlal v. Collector of Central Excise, AIR 1960 Mad 225.

5|Page
19. It is submitted before the Honble Court that the action of authorities does not violate
Article 20(3), since the entire process of questioning was in consonance with the procedure
laid down by law and no threat, inducement or coercion took place to obtain the same.

1. That the act was conducted in consonance with the procedure as laid down by law
20. It is submitted that the provision39 authorises officials to summon any person whose
attendance is considered necessary for any investigation into the case. Further, the
provisions under the Act state that the person so summoned shall be bound to state the truth
and produce any documents as is required in cooperation with the matters of a case.40
Issuance of summons to initiate proceedings is self-contained and independent procedures
mainly to prevent the act of money laundering.41

21. In the past, Honble Court has laid great emphasis on the challenges posed to
investigative agencies in terms of the prevalent crime in society.42 Though it is important
that the agencies of law are granted enough powers so as to tackle crimes sufficiently, it is
equally necessary to maintain the protection to an accused person.

22. Provisions pertaining to the statement under PMLA state that the person is legally
bound to state the truth on any matter related to an offence and a refusal to answer it shall
attract a penalty.43 Therefore, the procedure established by law, which enables the
Directorate of Enforcement to summon and question any who would ordinarily aid in the
investigation of the crime which was the case with Ms. Shalini Mukherjee as well, has been
followed.

2. That there was no inducement, coercion or threat so as to obtain the statement


23. It is submitted before the Honble Court that there was no inducement, coercion or
threat that was used on Ms. Shalini Mukherjee to obtain a statement. Also, the legal perils
attached to a refusal to answer or answer truthfully a question does not qualify as
compulsion as laid down under Article 20(3).44

39
Prevention of Money Laundering Act 2002, s 50(2).
40
ibid 50(3).
41
M. Shobhana v. The Assistant Director, Directorate of Enforcement CDJ 2013 MHC 4134.
42
Kathi Kalu Oghad v. The State of Bombay 1961 AIR 1808.
43
Prevention of Money Laundering Act 2002, s 63(2)(a).
44
ibid

6|Page
24. On previous instances, the Honble Court has referred to a state of duress while
addressing the question of compulsion.45 It was established that mere asking by an official
investigating a crime to do a certain thing is not compulsion within the meaning of Article
20(3) and that compulsion was a physical objective act.46 Therefore, the fact that Ms.
Shalini Mukherjee was merely summoned or asked to submit a statement regarding the
source of funds behind the said house is not compulsion in the particular case.

25. Arguendo the summon so issued and the action of the official was a compulsion under
the law to state truth, the same is not derived from a person in authority but law itself.47
The compulsion only when derived from a person in authority qualifies under the meaning
of Article 20(3).48

D. THAT THE SAID PERSON WAS NOT MADE A WITNESS AGAINST HERSELF
26. Honble Court has clearly expressed that the term to be a witness under Article 20(3)
essentially refers to a person furnishing evidence, is substantially different from the term
appearing as a witness because such protection of Article 20(3) is not merely visualised
as limited to the person in courtroom.49

27. The benchmark to make a person witness against themselves essentially involves
imparting knowledge which is in respect to the facts of the case, by a person who has
personal knowledge of the same.50 Such testimony may well involve conveying such
information in oral or writing.51 However, the guarantee only applies to acts that are
incriminatory in nature.

28. Any such statement should by itself have the tendency to incriminate the said person
against an offence, or a potential to form some chain of evidence to an extent that it makes
the said case probable in nature.52 The necessary condition that ought to be fulfilled is the

45
Mahabir Prashad Jain, Indian Constitutional Law (5th edn, Wadhwa and Company 2003).
46
Kathi Kalu Oghad v. The State of Bombay, 1961 AIR 1808.
47
Veera Ibrahim v. State of Maharashtra 1976 AIR 1167.
48
Percy Rusom Basta v. State of Maharashtra 1971 AIR 1087.
49
M.P. Sharma v. Satish Chandra 1954 AIR 300.
50
Kathi Kalu Oghad v. The State of Bombay 1961 AIR 1808.
51
M.P. Sharma v. Satish Chandra, 1954 AIR 300.
52
Nandini Satpathy v. P.L. Dani 1978 AIR 1025.

7|Page
confirmation of all facts that could constitute the commission of an offence.53 The statement
regarding the relations with management authorities at Energise India and Energise USA54
do not by itself confirm the occurrence of an event incriminatory in nature but the same can
be admitted as evidence in the future.55

29. It is submitted that the statement so obtained does not imply any incrimination of the
person as it depends on the incriminatory evidence that the investigation would result in,
and therefore is not protected by Article 20(3).

III. THAT THE CENTRAL BUREAU OF INVESTIGATION HAS EXERCISED ITS POWERS RIGHTLY
SO AS TO FILE THE SUPPLEMENTARY REPORT AGAINST THE PRIVATE PERSONS.

30. Though the PC Act defines the term public servant56, it is to be noted that the Court
must also emphasize upon the legislative intent behind the provision.57 The objective
behind the Act is ensure that there is a framework within the criminal investigation system
with a fool proof mechanism to tackle crimes like money laundering, and the term public
servant is given the widest possible meaning to ensure that there is a check on corruption
in different spheres of administration.58

31. It is submitted that the CBI made all necessary determination in consonance with the
definitions of public servant and public duty in the Act.59 The arguments to substantiate
on the aforementioned are two-fold. (A) that the Prevention of Corruption Act applies to
private persons as well, and (B) Arguendo the action against Ms. Shalini Mukherjee is
warranted for because the offences fell under the same transaction within the Code.

A. THAT THE PREVENTION OF CORRUPTION ACT APPLIES TO PRIVATE PERSONS AS WELL


32. Definition of public duty and public servant was brought in as a means to root out
corruption from public administration.60 Previously, the Court has held that there is no such

53
Nandini Satpathy v. P.L. Dani 1978 AIR 1025.
54
Moot Case Study, para 15.
55
Kathi Kalu Oghad v. The State of Bombay 1961 AIR 1808.
56
Prevention of Corruption Act 2002, s2(c.)
57
Parkash Singh Badal v. State of Punjab 2007 1 SCC(Cri) 193.
58
State of Madhya Pradesh v.Shri Ram SinghAIR 2000 SC 873
59
Prevention of Corruption Act 2002, S.2
60
The Joint Registrar/Administrator Vs P. Siva Kumar W.A. No. 1801 of 2013

8|Page
stipulated limit to who all are placed under such a definition of public servant.61 Whether
a person falls under the same definition depends on the entrustment of public duty.62

33. Since the intent of the legislature is to essentially widen the ambit as much, it would be
appropriate not to limit the contents of definition clause. Therefore, there exists a wide
construction towards the definition of term public servant.63

34. It is submitted that Ms. Shalini Mukherjee in her capacity as the executive of Gladiator
was a public servant64 at the time of commission of such offence, since the provision
extends such status to any person who has been aided by the government.65 The Looking
Forward policy of the Government led to an allotment of land, tax exemptions and subsidy
granted to the private companies.66 Such exemptions and subsidies clearly amount to being
aided by the government as is stated under the provision.67 In addition, it has long been
held that the provision extends to the private sphere as well.68

35. The Honble Court while addressing the question whether the duty of a chaser in a
Railways carriage workshop was performing a public duty69 laid down two important tests
to establish whether a person qualifies as a public servant. (1) whether the person is in
service of on the payroll of the Government, and (2) whether the person is entrusted with
the performance of any public duty (ii.).

1. Granting of the necessary licenses for production of wind and hydel energy is an
entrustment of a public duty
36. It is submitted that the awarding of licenses70 by the Government to Ms. Shalini
Mukherjee is a clear entrustment of public duty.71 It is to be noted that Article 246 of the

61
State of Andhra Pradesh v. R Venku Reddy (2002) 7 SCC 631
62
A.M. Kutty Sankaran Nair Vs. P.V. Kumara Nair 1963 Ker. L.T. 845.
63
Balbir Singh v state of PunjabCrl.Misc. M No. 779 of 2010.
64
Prevention of Corruption Act 1988, s 2(c)(iii)
65
L.K Advani v. Central Bureau of Investigation 1997 Cri LJ 2559(Delhi).
66
Moot proposition Pg 1
67
State of Punjab v Karmal Singh2008(9) SCC114.
68
CBI, Bank Securities & Fraud Cell vs. Ramesh Gelli and Ors Criminal Appeal Nos. 1077- 1081 of 2013 para5
69
G.A. Monterio v. State of Ajmer AIR 1957 SC 13.
70
Moot Proposition, para 2.
71
The State Through Lokayuktha Police Vs. Sadashiva S. Yelagod Criminal Revision Petition No. 659 of 2008,
200072 of 2015

9|Page
Constitution of India72 under Entry 17 (List-II) delegates the power of managing water
supplies and hydel energy to state governments.

37. The Honble Court has created a distinction and a classification of public servants73
where the said person must either be appointed by a government or a semi-governmental
body and remain on the payroll of the same, or at least all duties and responsibilities to be
discharged must be in consonance with the regulations made by the Government.74

2. Temporary entrustment of public duty qualifies as being a public servant


38. It is submitted that Ms. Shalini Mukherjees licensee status as a private limited
company has no bearing on them being public servants and being entrusted with a public
duty.75

39. The period of holding such public duty has no bearing on the said person being
considered as a public servant or not, and licensees shall have the said status irrespective.76
There are cases of English jurisprudence77 dealing with a case of bribery in local elections
where private individuals on temporary public duty were held to be public servants under
the common law.78

B. ARGUENDO, ACTION AGAINST MS. SHALINI MUKHERJEE IS WARRANTED FOR BECAUSE


THE OFFENCES FELL UNDER THE SAME TRANSACTION WITHIN THE CODE

40. PC Act grants the power to the Court so as to try any offence, including those that fall
outside the ambit of Section 3 of PC Act.79 It has been held previously that there would be
a grave miscarriage of justice if out of a set of accused charged with the same offence, some
were put under the jurisdiction of the Special Court while others are tried under a regular
Court.80

72
Article 246 of Constitution of India
73
R.B. Kulkarni v State of Maharashtra AIR 1985 SC 1655 at pp1655-1656
74
Babu Ram Verma Vs. State of U.P 1971(2) S.L.R. 649 at p.659.
75
R.B. Kulkarni v State of Maharashtra AIR 1985 SC 1655 at pp1655-1656
76
State v. S. BangarappaAIR 2001 SC 222.
77
(1890) 16 Cox CC 737.
78
R. v. Pitt (1762) 3 Burr 1335.
79
Prevention of Money Laundering Act 2002, S.4(3).
80
Vivek Gupta v. Central Bureau of Investigation 2004 SCC (Cri) 51.

10 | P a g e
41. The Code of Criminal Procedure envisages a similar procedure of prescribing the
joinder of persons committing an offence in the same transaction to be tried together.81 It
is to be noted that the term 'transaction' has been used in the Code but lacks a particular
settled definition or classification.82 The interpretation of the provision reads as all acts of
all accused done in the course of carrying through the alleged wrongful act.83

42. There are two important test that have been laid down to determine the same: i. Whether
a community of purpose exists, and ii. Whether there is any continuity in action.84 In order
to determine whether certain acts constitute the same transaction, the same must be linked
together to present a continuous whole.85

1. There existed a Community of Purpose


43. It is clear that Ms. Shalini Mukherjees purpose was to shift to cleaner energy
production from the original family business of coal-based energy.86 It is also to be noted
that the Governments purpose is to promote the cause of cleaner fuel production.

44. It is submitted that the licenses so awarded to Gladiator is a result of patronage and
proximity of Ms. Shalini Mukherjees father towards the Communist government and Mr.
Dibyojyoti Basus intent to award the same to Gladiator.87 There is a clear overlapping of
interests between the two individuals, and therefore a community of purpose can be said to
exist.

2. That there exists a continuity of action


45. The term continuity of action suggests that the actions of the said individuals flow
from the wrongful act that was so committed initially.88 It is submitted that the Court must
take note of the fact that the Government awarded Gladiator prime real estate for two
completely unrelated projects at market price levels.89

81
Criminal Procedure Code 1973, s 114
82
Criminal Procedure Code 1973, s 223
83
Hitesh Nagpal vs State CRL.M.C. 646/2008 & Crl MA 2412/2008.
84
Shamsher Bahadur v. State of Bihar AIR 1956 Pat 404.
85
Emperor v. Kehsavlal Tribhuvandas (1944) 46 BOMLR 555.
86
Moot Proposition para 2.
87
ibid
88
Ramraja Tevan v. Emperor 32 Cr LJ 30.
89
Moot Proposition, para 2.

11 | P a g e
46. Furthermore, it is to be noted that Mr. Dibyojyoti Basu was present at all meetings and
internal discussions that took place between the Government, Gladiator and Energize.90
Therefore, it is clear that continuity in action does so exist. Therefore, they ought to have
been tried together.

IV. THE SUPPLEMENTARY REPORT FILING ALLEGATIONS UNDER SECTION 13(1)(D)(III) OF

THE PREVENTION OF CORRUPTION ACT IS NOT LIABLE TO BE SET ASIDE

A prima facie case under Section 13(1)(d)(iii)91 is established when 1) a public servant holding
office 2) obtains for someone any valuable thing or pecuniary advantage.92 3) without public
interest.93 It is submitted by the Respondent that a prima facie case under Section 13(1) (d) (iii)
of the Prevention of Corruption Act does not require an element of mens rea to be fulfilled.

A. A PRIMA FACIE CASE UNDER SECTION 13(1)(D)(III) OF THE PCA DOES NOT REQUIRE
AN ELEMENT OF MENS REA TO BE FULFILLED.

The concept of mens rea remains an integral aspect of every criminal offence, unless excluded
by (a) Express Words or (b) Necessary Implications.94 Questions pertaining to elements of the
offence mandate a true construction of the statute.95 A true construction of the statue, requires
careful assessment of both (a) Textual Interpretation of the Statue, and (b) Subject matter and
other relevant circumstances indicating the Parliaments intention behind creation of the
offence.96 Thus it is submitted that an element of mens rea cannot be inferred from i. A textual
interpretation of the statue and ii. Assessment of subject matter and circumstances.

1. Textual Interpretation of Section 13(1)(d)(iii)


i. Words

90
Moot Proposition, para 9.
91
Prevention of Corruption Act 1988, s 13(1)(d)(iii).
92
Moot Case Study, para 9.
93
Moot Case Study, para 21.
94
Brend v Wood [1946] 62 T.L.R. 462; Nathulal v. State of M.P. AIR 1966 SC 43; William Oldnall Russell and
J. W. Cecil Turner, Russell On Crime (1st edn, Sweet & Maxwell 1986); John Frederick Archbold and others,
Criminal Pleading, Evidence and Practice 2002 (35th edn, Sweet & Maxwell 2002); Sherras v De Rutzen [1895]
1 QB 918; Brend v Wood [1946] 175 LT 306.
95
G.P. Singh, Principles of Interpretation of Statutes, (9th edn, Lexis Nexis 2015) 779-780.
96
Francis Hart Dyke, Esq. v. Henry William Elliot, (1872) LR 4 PC 184-19; William Feilden Craies and Walter
S Scott, A Treatise On Statute Law (7th edn, Sweet & Maxwell 1936) 532; G.P. Singh, Principles of
Interpretation of Statutes, (9th edn, Lexis Nexis 2015) 779-780.

12 | P a g e
47. Section 13(1)(d)(iii) is cast completely differently from its predecessor Section 5(1)(d)
(of the 1947 Act).97 While the controlling clauses in both sections are pari material, Section
13(1)(d)(iii) differs in carving out an offence of similar character without a qualifying
adverb such as abuse of office, corrupt or illegal.98 The preceding subsections contain
qualifying adverbs indicating a presence of mens rea as an essential element, while the
legislators have deliberately chosen to omit it under Section 13(i) (d)(iii).99 A charge under
Section 5(1)(d) required an element of mens rea along with the other required elements.100
On the other hand a charge under Section 13(1)(d)(iii) dispenses the requirement of mens
rea as a sine qua non by exclusion of the qualifying verbs for the act.101 which displays the
intention of the Parliament. It is thus submitted that reading mens rea into the provision
would be defeating the purpose of the same.

ii. Setting of the provision

48. The placement of the provision in the scheme of the act is an important aspect to be
taken into account. Section 13(1)(d)(iii) is immediately succeeded by Section 13(1)(e),
which textually does not allude to mens rea.102 Thus under the conventional canons of
statutory interpretation reliance is placed on the placement of provisions, thus providing
greater meaning to the structure of the act.103

49. Thus it is submitted by the respondents that a textual interpretation of Section


13(1)(d)(iii) does not indicate an element of mens rea as being a sine qua non of the offence.

2. Assessment of subject matter and circumstance

97
Prevention of Corruption Act 1988, s 5(1)(d).
98
Radhey Shyam Khemka v State of Bihar 1993 (3) SCC 54-68; Y.S. Parmar v Shri. Hira Sikngh Paul 1959 Supp
(1) SCR 213; Gopaldas Udhavdas Ahuja v Union of India 2004 (7) SCC 33.
99
Prevention of Corruption Act 1988, s 13(1)(a) .
100
M. Narayanan Nambiar vs State of Kerala 1963 AIR 1116.
101
Ranjit D. Udeshi vs State Of Maharashtra 1965 AIR 881 [10]; Brent v Wood (1946) 62 T.L.R. 462; State of
Maharashtra Vs. Mayer Hans George 1965 AIR 722 [22].
102
M. Krishna Reddy v State Deputy Superintendent of Police 1992 (4) SCC 45
103
EEOC v. Arabian American Oil Co. 499 U.S. 244 (1991) 251-256; Eskridge, William N Eskridge, Philip P
Frickey and Elizabeth Garrett, Dynamic Statutory Interpretation (1st edn, Harvard University Press 1994);
Duplex Printing Press Co. v. Deering 254 U.S. 443 (1921).

13 | P a g e
50. The PCA is distinct from other penal provisions as it includes stringent presumption by
curtailing normally available remedies and by allowing the court to draw presumptions.104
The distinctive nature of the act mandates a purposive and an objective based
interoperation.105 It is thus submitted that a deviance from the doctrinal approach to
criminal law, of demanding a proof of intention is required, to prevent the scope of the act
from being limited, contrary to the intention of the legislators.106

51. Thus it us submitted by the respondents that a true construction of the statue does not
lead to an inference of mens rea being present as an element. Thus the Supplementary
Report is not liable to be quashed.

V. THE COGNIZANCE OF OFFENCES UNDER THE PC ACT AND IPC IS NTO LIABLE TO BE HELD
AS BAD IN LAW

52. It is submitted by the Respondents that the notions of due process are not absolute107 in
a welfare state and this is further evidenced by the stringent objectives of the Act.108 Thus
it is submitted that A. Prior sanction is not mandatory for prosecution of a public servant
for offences under 405, 420 read with Section 120B (B) Prior Sanction is also not a
mandatory pre condition under Section 19 of the PCA.

A. PRIOR SANCTION IS NOT REQUIRED FOR PROSECUTION UNDER SECTION 405 AND 420
OF THE IPC READ WITH SECTION 120-B

53. The Supreme Court in Baijnath v. State of M.P109 laid down that offences in the vein of
criminal breach of trust and cheating did not nor require a prior Sanction both under the
PCA and the CrPC. Thus the submissions in this regard are two fold i. The Act cannot be
considered in discharge of official duty ii. The Status of a public servant is vitiated thus
depriving the petitioner of the accorded protection.

1. The Act cannot be considered in discharge of official duty

104
Prevention of Corruption Act 1988, s 5; Statement of Objects, Para 3; Prevention of Corruption Act 1988, s
17.
105
Murlidhar Meghraj Loya v. State of Maharashtra (1976) 3 SCC 684; Dineshchandra Jamnadas Gandhi v.
State of Gujarat (1989) 1 SCC 420.
106
Standard Chartered Bank v. Directorate of Enforcement (2005) 4 SCC 530.
107
Confederation of Ex-serviceman Association v Union of India (2006) 8 SCC 399.
108
Prevention of Corruption Act 1988, preamble.
109
Baijnath And Ors vs State Of Madhya Pradesh CRA No.1097 of 2016.

14 | P a g e
54. Protection from prosecution is permitted only for actions of the public servant which
fall under a reasonable nexus of the duty of the public servant as defined under Section
197.110 However it is the act that is meant to be assessed and not the duty in question as
official acts are liable to be performed in deviation of the official duty, but they continue to
be done in official capacity.111

55. The burden of proof in the given case of establishing that there exists a reasonable nexus
between the scope of the duty and act in question is on the petitioner112 as CBI
investigationsdo not reveal a nexus between the two.113 Further it has been ruled by the
Courth offences such as breach of trust, cheating and criminal conspiracy by the very
character of the offences cannot be commited in an official capcity.114

2. Arguendo, the status of a public servant is vitiated thus depriving the petitioner of
accorded protection
56. The Supreme Court has time and again categorically ruled that provision of protection
under Section 197 to public servants committing criminal breach of trust is erroneous in
law115 as the office of the public servant stands vitiated and cannot be accorded protection
on the commission of certain offences.116

B. THE COGNIZANCE TAKEN BY THE SPECIAL JUDGE CANNOT BE CHALLENGED BY VIRTUE


OF SECTION 19(3) OF THE PCA ACT.

57. Section 19(3) of the Prevention of Corruption Act places an express bar on revision of
orders of the Special judge, except in cases of failure of Justice.117 The term failure of
justice has been interperterd to mean only a groos and blatant failure in the judicial
system.118 Thus it is submitted that given case is not on of failure of justice, especially in

110
Shreekantiah Ramayya Munipalli vs The State Of Bombay 1955 AIR 287 [34].
111
Sankarankutty Menon And Ors. vs Deputy Superintendent of Police AIR 1961 Ker 260
112
Matajog Dobey vs H. C. Bhari, 1956 AIR 44 1955 SCR (2) 925
113
Moot Case Study.
114
Moot Case Study, para 76.
115
Shambhoo nath Misra v. State of U.P. (1997) 5 SCC 326.
116
Om Prakash Gupta vs State of U. P. 1957 SCR 423.
117
PCA 1988, s 19(3).
118
Rattiram & Ors vs State Of M.P.Tr. Insp. of Police CRA No. 223 of 2008.

15 | P a g e
the light of objective of the act in punishing economic offences by dispensing with certain
stringent procedures and aiming for speedy justice.119

1. No failure of justice has been occasioned in the given case.


58. In the given case diverse government policies of the Communist government were
brought under investigation, especially construction tenders.120 The promises of the
populist government involved eradication of corrupt practices of the past governemetn and
thus there lie no allegations of failure of justice in the abscnec of sanction.121

59. Thus it is submitted that the Cognizance of offecnes by the Special judge in the abscene
of sanction is not liable to be held as bad in law.

VI. THAT THE SUPPLEMENTARY COMPLAINT FILED IS JUST, LEGAL AND MUST BE SET AS

GOOD IN LAW

60. It is submitted that the Supplementary Complaint dated 01.07.2016 is just, legal and
therefore must be set as good in law. The mandate accorded to the Directorate of
Enforcement under PMLA has not been breached, and the arguments to substantiate upon
the same are three-fold. Firstly, that the adjournment granted is correct in law (A), secondly,
no violation of the restrictions so imposed upon the investigative powers has taken place
(B) and thirdly, that the Supplementary Complaint pertains to the same transaction.

A. THAT THE ADJOURNMENT GRANTED IS CORRECT IN LAW


61. The ED sought time and moved for an adjournment as it was furthering its investigation
so as to find any additional evidence or information on the actions of Mr. Dibyojyoti Basu.

62. Though the Courts prescribe for further investigation only in situations where the
information or evidence so collected is not satisfactory in nature122 or where an aspect of
the case was not taken into account previously, the Honble Court has accepted that the
powers of such investigation that extend to any penal provision shall apply similarly in
cases under any special law or being investigated by a special agency.123 The term
investigation so used in the provisions of the Code provides for a wide interpretation or

119
Harshad S. Mehta vs Central Bureau Of Investigation 1992 (24) DRJ 392 [58].
120
Moot Case Study, para 7.
121
Moot Case Study, para 8.
122
Criminal Procedure Code, 1973 s. 173(8).
123
Amit Banerjee v. Shri Manoj Kumar, Assistant Director, Enforcement Directorate C.R.M. No. 1209 of 2016.

16 | P a g e
connotation to the same124. Therefore, it is submitted that the same includes all investigation
that is undertaken by a special agency as well.125

63. In the particular case, an adjournment was granted only after taking cognizance over
the initially filed offences to ensure any additional evidence could be collected pertaining
to the involvement of Mr. Dibyojyoti Basu.126

64. Any other restriction placed on the powers of the Special Court to take cognizance of
offences or order any further inquiry would result in unnecessary delays and complexity of
procedures in the process of justice.

B. NO VIOLATION OF THE RESTRICTIONS SO IMPOSED UPON THE INVESTIGATIVE POWERS


HAS TAKEN PLACE

65. It is submitted that the PMLA provides that the Cr.PC. shall apply with respect to
investigation so far as it is not inconsistent with the provisions listed under the Act.127
Though there is a requirement of filing a report after investigation without any delay, the
Code does not lay down a rule against the same or list out any stipulated time frame within
which such report ought to be filed.128

66. To consider the Supplementary Complaint so filed as bad in law, a provision restricting
the investigative powers of the ED after initial cognizance is taken by the Special Court
must be provided in the Act, in direct contrast to the established investigative powers under
the Code. Since there is no such provision with an over-riding character within the PMLA,
it is submitted that the Supplementary Complaint so filed is just and legal. The
Supplementary Complaint filed is in connection with the same case, and does not constitute
an independent complaint.

67. On numerous occasions, it has been held that any additional evidence so collected even
after completion of substantial trial can be relied upon.129 The criminal justice system
envisages that upon further investigation, a filing of some supplementary report would take

124
Code of Criminal Code 1973, s 2(h.)
125
Directorate of Enforcement v Deepak Mahajan 1994 AIR 1775.
126
Moot Proposition, para 25.
127
Prevention of Money Laundering Act 2002, s 65.
128
Code of Criminal Procedure 1973, s 173(1).
129
Sivanmoorthy & Ors. v. State Rep. By Inspector of Police (2010) 12 SCC 29.

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place.130 Such supplementary report is to be considered as part of the primary report of
investigation, so as to aid in the investigation undertaken by the empowered officer.131

68. Honble Court has relied upon the liberty of the State to reserve to file further complaint
as the investigation proceeds and held that supplementary complaints can be filed under the
PMLA after conducting further investigation to further the cause of justice.132 In the present
case, the stated Supplementary Complaint has been filed after granting of an adjournment
from the Special Court on similar grounds as stated during the proceedings before the
Special Court.133

C. THE SUPPLEMENTARY COMPLAINT PERTAINS TO THE SAME TRANSACTION


69. The Scheme of Criminal Justice in India recognises the concept of trying and
investigating several persons in connection with the same criminal activity or chain of
events. The Code provides for the offenders to be tried together where there are two or
more offenders who have indulged in committing an offence in the course of the same
transaction.134

70. Similarly, Further investigation is only recognised as a continuation of the original


investigation, especially in cases involving the same transaction and chain of events.135 The
Honble Court has, on occasion, dismissed procedural irregularities such as separate
numbering of the complaints to allow for a clubbing of charges and their trial together.136

71. It is submitted that the filing of the Supplementary Complaint by the Enforcement
Directorate is not a concept alien to law or prejudicial to the interest of the said persons and
essentially in place to ensure no multiplicity of proceedings and to meet ends of justice.137

130
Chandra Babu v. State Rep. Inspector of Police (2015) 8 SCC 774.
131
Vinay Tyagi v. Irshad Ali (2013) 5 SCC 762 [15].
132
Afroz Mohamad Hasanfatta v. Deputy Director & Othrs. R/CR.MA/17000/2014 [57].
133
Moot Proposition, para 24.
134
Code of Criminal Procedure 1973, s 223.
135
Vinay Tyagi v. Irshad Ali (2013) 5 SCC 762 [15].
136
Afroz Mohamad Hasanfatta v. Deputy Director & Othrs. R/CR.MA/17000/2014 [57].
137
Amit Banerjee v. Shri Manoj Kumar, Assistant Director, Enforcement Directorate CRM. No. 1209 of 2016.

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PRAYER

Wherefore, in the light of facts explained, issues raised, arguments advanced, reasons given
and authorities cited, this Honourable Court may be pleased to:

HOLD the proceedings arising out of O.C. 240/2015 as valid and not in contravention of
Article 20(1) of the Constitution of India;
TO UPHOLD the constitutionality of Section 50 of the PMLA with respect to Article 20(3);
TO NOT SET ASIDE the Supplementary Report filed by the CBI against petitioners 1,2 and
3 as bad in law.

The Honourable Court may also be pleased to:

TO NOT SET ASIDE Supplementary Report filed by CBI against Dibyojyoti Basu as bad in
law.
TO HOLD that the cognizance taken was valid.
TO HOLD the Supplementary Complaint before the Ld. Special Court, Delhi, as legally
sound.

And grant any other relief that this Honourable Court may be pleased to grant in the interest of
justice, equity and good conscience.

All of which is most respectfully submitted.

Counsel for Respondents

Sd/-

XX