The Kerala High Court (Ernakulam Bench) has clarified that the power granted to the prosecuting authority under Section 44(1)(c) of the Prevention of Money Laundering Act, 2002 (PMLA) to request the committal of a scheduled offence case to the PMLA Court does not operate as a bar on an accused person’s right to seek a transfer of the case by invoking the provisions of the BNSS.
The Court held that the procedural requirement under the proviso to Section 447 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which mandates that a transfer application within the same sessions division must first be filed before the Sessions Judge, is not applicable to transfers between Special Courts constituted under special statutes that exercise exclusive jurisdiction.
Hence, in the interest of justice, a High Court can exercise its power under Section 447 of the BNSS to transfer a scheduled offence case to a Special Court where the corresponding PMLA case is pending, provided both courts are duly notified to try offences under both relevant statutes, to allow for both cases to be handled by the same Judge, added the Court.
Accordingly, the Court allowed the Transfer Petition, and ordered that the case pending before the Special CBI Court-I, Ernakulam, be transferred to the Special CBI Court-II, Ernakulam, where the related case is pending, so that both cases may be considered by the same Judge in accordance with the law. The Special CBI Court-I, Ernakulam, was directed to transfer the entire case records to the Special CBI Court-II, Ernakulam, forthwith.
A Single Judge Bench of Justice A. Badharudeen observed that Section 65 of the PMLA allows for the application of the BNSS to proceedings under the PMLA, so long as they are not inconsistent. The Bench viewed Section 44(1)(c) of the PMLA as an “enabling provision” for the prosecuting authority, which does not exclude the right of any other aggrieved person, including the accused, to file a transfer petition under the BNSS for valid reasons.
Further, the Bench observed that the procedural bar under the proviso to Section 447 of the BNSS does not apply in this instance. It reasoned that Special Courts created under special statutes like the PC Act and the PML Act exercise exclusive jurisdiction and cannot be roped into within the ambit of proviso to Section 447 of BNSS. Therefore, a party seeking to transfer a case from one Special Court to another can directly approach the High Court.
While acknowledging that a joint trial is an ‘outright impossibility’, the Bench noted that both courts involved are Special Courts notified under both the PC Act and the PML Act, and thus found no harm in permitting trial of both the cases by the same Judge.
Briefly, the petitioner filed a transfer petition under Section 447 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), as he is the sole accused in two cases, pending before the Special CBI Court-I, Ernakulam, for alleged offences under the Prevention of Corruption Act, 1988 (the predicate/scheduled offence), and another one, pending before the Special CBI Court-II, Ernakulam, for alleged offences under Sections 3 and 4 of the Prevention of Money Laundering Act, 2002 (PMLA).
The petitioner sought to transfer the case to the Special CBI Court-II, arguing that the allegations in both cases are interconnected, the witnesses and documents are the same, and it would be in the interest of justice for both cases to be tried by the same court, especially since the Special CBI Court-II is also a designated Special Court for both PC Act and PML Act cases.
Appearances:
Senior Advocate S. Sreekumar, along with Advocates P. Martin Jose, P. Prijith, Thomas P. Kuruvilla, R. Githesh, M.A. Mohammed Siraj, Ajay Ben Jose, Manjunath Menon, Anna Linda Eden, Harikrishnan S., Anavadya Sanil Kumar, Anjali Krishna, and Abhinav P. S., for the Petitioner/ Accused
Special Public Prosecutor, CBI, Advocate Sreelal N. Warrier and Standing Counsel for Directorate of Enforcement, Advocate Jaishanker V. Nair, for the Respondent/ Complainant
