Stating that the order “suffers from the vice of judicial legislation”, the ED said the court has “erroneously declined” taking cognisance of the money laundering offence.
The ED said that the verdict declining the cognisance is an attempt “to amend or rewrite the statute” especially Section 2(1)(u) (proceeds of crime means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property) and Section 2(1)(y) (scheduled offence means) of the Prevention of Money Laundering Act, 2002.
The plea also said that adding words to the expression ‘scheduled offence’ to mean ‘scheduled offence only registered by a law enforcement agency’ is “impermissible” and amounts to “judicial legislation”.
The petition said that the sole ground given for declining cognisance is that a prosecution complaint filed by an authorized officer under the PMLA cannot come from a private complaint by a private individual (Swamy in this case), and such a scheduled offence must be registered only by a law enforcement agency either through an FIR by the police or a complaint by a person authorized to investigate the scheduled offence.
Alleging that Judge Gogne failed to appreciate that cognisance taken by a competent court on a private complaint (by Swamy) stands on a much higher footing than a mere FIR registered by police in which there is a possibility that cognisance may be declined after filing of a chargesheet by police.
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The ED also said that in the present case, cognisance of the private complaint constituting the scheduled offence had already been taken by the competent court and upheld all the way up to the apex court.
“Hence, the scheduled offence stood on a much higher pedestal than a mere FIR lodged by police,” the agency said in the plea.
Further stating that the court failed to take note that the investigation and the prosecution complaint under the PMLA was based on scheduled offences of section 420 (fraud) and 120B (criminal conspiracy) of the IPC of which cognisance had already been taken by the concerned magistrate and was upheld by the Delhi High Court and the Supreme Court too.
Citing these developments, the ED said that since cognisance of the scheduled offence has been taken by the competent court, which is why Judge Gogne could not have held that the ED cannot take note of a scheduled offence based on a private complaint by a private individual.
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The judgment fails to consider that the CrPC provides for two distinct modes for proceeding with regard to various offences, either under the Indian Penal Code or other special legislations, the plea added.
Furthermore, the agency said that the judgment seeks to draw “an artificial distinction” between a scheduled offence being investigated by the police and a scheduled offence reported to a magistrate by way of a complaint, when the law makes no such distinction.
The judge, through his order, created “two impermissible classes of scheduled offences” leading to complete “manifest arbitrariness” in which a person who commits a scheduled offence will not be prosecuted for generation and laundering of proceeds of crime, only because it is based on a private complaint to a magistrate, ED said.
Legal teams
Senior advocates Abhishek M Singhvi, R S Cheema, and advocate Tarannum Cheema, Sushil Bajaj and other lawyers represented the proposed accused persons.
Additional solicitor general S V Raju represented the ED.
