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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION (STAMP) NO. 3122 OF 2020

Directorate of Enforcement,Through Assistant Director,Department of Revenue, Ministry of Finance, Government of India, Mumbai Zonal Office-II, Having office at Gr. Floor, Kaiser Hind, Currimbhoy Road, Ballard Estate, Mumbai – 400 001 ...Petitioner Versus

1. The State of Maharashtra At the instance of M.R.A Marg, Near Haj House, MRA Marg P.S., Mumbai

2. Akbar Travels (India) Pvt. Ltd., 69/71, Janjikar Street, Near Crawford Market, Fort, Mumbai

3. M/s. Jet Airways (India) Limited, Siroya Centre, Sahar Airport Road, Andheri East, Mumbai – 99, India

4. Naresh Kumar Goyal, S/o Late Jagdish Rai, 72, Jupiter Apartment, Anstey Road, Off Altamount Road, Mumbai

5. Anita Naresh Goyal, W/o. Naresh Kumar Goyal, 72, Jupiter Apartment, Anstey Road, Off Altamount Road, Mumbai ...Respondents

SQ Pathan 1/25

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Mr. Anil Singh, ASG with Mr. Aditya Thakkar and Mr. Shreeram Shirsatfor the Petitioner

Mr. Raja Thakare, Spl. P.P. with Mr. Akash Kavade, Mr. SiddharthJagushte, Mr. Deepak Thakre, P.P. and Ms. P. P. Shinde, A.P.P for theRespondent No.1–State

Mr. Akhilesh S. Dubey with Mr. Vagish Mishra, Mr. Dharmesh S. Joshi,Mr. Parag T. Joshi, Mr. Amit Dubey, Mr. Uttam Dubey and Mr. RajuramKuleriya i/b T. D. Joshi & Associates for the Respondent No. 2

Mr. Aabad H. Ponda, Sr. Advocate with Mr. Samsher Garud and Ms. JuhiValia i/b Jayakar & Partners for the Respondent No. 4

Mr. Pranav Badheka with Mr. Samsher Garud and Ms. Juhi Valia i/bJayakar & Partners for the Respondent No. 5

CORAM : REVATI MOHITE DERE, J.

RESERVED ON : 24 th NOVEMBER 2020

PRONOUNCED ON : 21 st DECEMBER 2020

(THROUGH VIDEO CONFERENCING)

ORDER :

1 By this petition preferred under Article 227 of the Constitution

of India and 482 of the Code of Criminal Procedure (`Cr.P.C.’), the

petitioner-Directorate of Enforcement (`ED’) seeks quashing and setting

aside of the impugned order dated 19th September 2020 passed by the

learned Additional Chief Metropolitan Magistrate, 38th Court, Ballard Pier,

SQ Pathan 2/25

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Mumbai below Exhibit 6, by which the learned Magistrate rejected the

petitioner’s application seeking to intervene in the closure report filed by

the respondent No.1-State of Maharashtra in the Court of the learned

Magistrate, as well as the order dated 15th October 2020 passed by the

learned Additional Sessions Judge, Greater Mumbai in Criminal Revision

Application No. 400 of 2020.

2 The short question that arises in the aforesaid petition is, the

locus of the petitioner-ED in a closure report filed by the State of

Maharashtra before the Magistrate, in a case registered at the behest of

respondent No.2-Akbar Travels (India) Pvt. Ltd.

3 A few facts as are necessary to decide the aforesaid petition,

are as under :

The respondent No. 2-Akbar Travels (India) Pvt. Ltd. filed a

private complaint in the Court of the learned Metropolitan Magistrate at

Ballard Pier, Mumbai, alleging offences punishable under Sections 120-B,

420, 467 and 471 of the Indian Penal Code (`IPC’) as against the

respondent No. 3-M/s. Jet Airways (India) Ltd. and its directors i.e.

respondent No. 4-Naresh Goyal and respondent No. 5-Anita Goyal.

SQ Pathan 3/25

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According to the respondent No. 2, during the period 2018-

2019, they had done business of more than Rs. 900 Crores with respondent

No. 3. It is alleged that as per the Contract Agreement, respondent No. 3

was liable to pay Rs. 21,31,08,000/- along with CGST to the respondent

No. 2. According to the respondent No. 2, they had made an advance air-

ticket booking of Rs. 23,87,44,511/- for respondent No. 3 and the same was

also due from the said respondent. In addition, TDS, OPC (Optional

Payment Charges), OC (Optional Charges) on advance booking of

Rs. 87,15,525/- was also due from respondent No. 3. Thus, it is the

respondent No. 2’s case that a total of Rs. 46,05,68,036/- was to be paid by

the respondent No. 3. As respondent No. 2 did not receive payments

despite being promised, the respondent No. 2 filed a private complaint

alleging that respondent Nos. 3 to 5 had cheated them and that despite

knowing the real financial crisis of respondent No. 3, respondent No. 4

made false promises and willfully induced respondent No. 2 to book tickets

on behalf of respondent No. 3. Pursuant to the private complaint filed by

respondent No. 2 in the Court of the learned Metropolitan Magistrate, the

learned Judge passed an order under Section 156(3) Cr.P.C on 15th February

2020. Pursuant to the said order, respondent No. 1-State of Maharashtra

registered an FIR as against the respondent Nos. 3 to 5 alleging offences

punishable under Sections 406, 420, 465, 467, 468, 471 and 120-B of the

SQ Pathan 4/25

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IPC. The said FIR was registered on 18th February 2020, vide C.R. No. 66

of 2020 with the M.R.A. Marg Police Station, Mumbai.

Pursuant to the registration of the aforesaid FIR with the

M.R.A. Marg Police Station, the petitioner-ED registered an ECIR on 20 th

February 2020 under the Prevention of Money Laundering Act (`PMLA’),

Sections 120-B, 420, 467 and 471 of IPC being scheduled offences under

paragraph 1 of Part A of the Schedule to the PMLA. The ED also

commenced with the investigation under the Foreign Exchange

Management Act (FEMA) as against respondent Nos. 3 to 5. On 9th March

2020, the respondent No. 1 filed its closure report in the Court of the

learned Metropolitan Magistrate. The respondent No.2-Akbar Travels

(India) Pvt. Ltd. forwarded a copy of the said closure report to the

petitioner’s office on 11th June 2020 via email. The respondent No. 2-

Akbar Travels (India) Pvt. Ltd. filed a Protest Petition before the learned

Magistrate. On 15th June 2020, the petitioner-ED also filed its Protest

Petition in the Court of the learned Metropolitan Magistrate. According to

the petitioner, the respondent No. 1-State had not conducted the

investigation in a proper manner. In the said Protest Petition, the petitioner

prayed that the closure report filed by the respondent-State may not be

accepted and a suitable direction may be issued to carry out further

SQ Pathan 5/25

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investigation in the case, including into the undisclosed accounts and assets

of respondent No. 3 and its family members and the related entities and all

their transactions with respondent No. 3 i.e. M/s. Jet Airways (India) Ltd.

The said Protest Petition filed by the petitioner (Exhibit 6) was rejected by

the learned Metropolitan Magistrate, Mumbai, vide order dated 19th

September 2020, after observing that the petitioner had no locus standi to

intervene, especially when the informant-complainant himself was

appearing in the case.

Being aggrieved by the said order, the petitioner filed a

revision application before the learned Additional Sessions Judge, Mumbai

being Criminal Revision Application No. 400 of 2020. The learned

Additional Sessions Judge, Mumbai, vide order dated 15th October 2020

dismissed the revision application, on the ground of maintainability as well

as on merits. Being aggrieved by the said orders, the petitioner has

approached this Court by way of the aforesaid petition.

4 Learned ASG Mr. Anil Singh, appearing for the petitioner

submitted that the Protest Petitions were recognized by the Apex Court in

the case of Bhagwat Singh vs. Commissioner of Police & Anr1. He

1 (1985) 2 SCC 537

SQ Pathan 6/25

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submitted that no doubt, the informant/complainant is entitled to a notice

and to be heard, nonetheless, the Apex Court has also recognized the right

of an injured person/interested/aggrieved person to be heard. He submitted

that the petitioner would fall in the category of the term `victim/interested

person/aggrieved person’, thus having locus to be heard before the learned

Magistrate before any order is passed on the closure report. He submitted

that during the investigation under the PMLA, the petitioner has found

transfer of funds from India to foreign banks by the respondent Nos. 3 to 5

and as such the money having been diverted from India to foreign banks

being proceeds of crime, the petitioner ought to have been heard by the

learned Magistrate. He submitted that the petitioner in its Protest Petition

filed before the learned Magistrate has placed on record the investigation

done by them i.e. all transfer of funds from Indian banks to foreign banks

and diversion of money, which factors have not been considered by the

respondent No.1-State. He submitted that the petitioner should be

construed as an injured person and as such relied on the term `victim’ as

defined under Section 2(wa) Cr.P.C. He submitted that as a result of money

laundering, the Country/Government has suffered huge losses which would

have been available to the public and as such the Government is directly

affected by the said tax evasion. He submitted that there are about 20,000

creditors who have also been affected and that the respondent No.1-State

SQ Pathan 7/25

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has not considered the said aspects nor investigated the said angle. He

submitted that being an offence against the society, the petitioner be

considered as an injured person, thus falling within the definition of the

term `victim’. He submitted that there are several deficiencies in the

investigation carried out by the respondent No.1-State and as such it is

incumbent on the petitioner, being a Government Agency, to bring the same

to the notice of the learned Magistrate. Learned ASG also submitted that the

learned Sessions Judge, once having held that the revision was not

maintainable, ought not to have gone into the merits of the case with respect

to the locus standi of the petitioner. He further submitted that even the

learned Magistrate has not considered the petitioner's locus standi in its

proper perspective, having regard to the judgments relied upon by the

petitioner.

5 Mr. Singh, learned ASG relied on the judgments in the case of

Sheonandan Paswan vs. State of Bihar & Ors. (Supreme Court)2;

R. Dharmalingam vs. State & Ors. (Madras High Court)3; Sudipta Sen

vs. The State of West Bengal (Calcutta High Court)4; Abhinandan Jha &

Ors. vs. Dinesh Mishra (Supreme Court)5; Ratanlal vs. Prahlad Jat &

2 (1987) 1 SCC 288 3 2020 Cri.L.J. 13004 Laws (Cal) 2000-9-685 Manu/SC/0054/1967

SQ Pathan 8/25

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Ors.6; A. R. Antulay vs. R. S. Nayak (Supreme Court)7; Y. S. Jagan

Mohan Reddy vs. Central Bureau of Investigation8; Gautam Kundu vs.

Manoj Kumar9, Hasan Ali Khan vs. Union of India10, P. Chidambaram

vs. Directorate of Enforcement11, Parbatbhai Aahir @ Parbatbhai

Bhimsinhbhai Karmur & Ors. vs. State of Gujarat & Anr.12, in support of

his submission.

6 Mr. Dubey, learned counsel for the respondent No.2/original

complainant adopted the submissions advanced by the learned ASG

Learned counsel relied on the judgment of the Apex Court in Nahar Singh

Yadav & Anr. vs. Union of India & Ors.13, in particular, para 19 of the said

judgment to show that “a party interested” can be permitted to intervene in

proceedings. He submitted that the petitioner-ED, being a responsible

agency, must be permitted to intervene, as the economy of the country is

affected.

7 Mr. Raja Thakare, Spl. P.P appearing for the respondent-State

submitted that the petitioner-ED would neither fall within the definition of

6 Manu/SC/1202/20177 (1984) 2 SCC 5008 LAWS (SC)-2013-5-299 LAWS (SC)-2015-12-4610 Bail Application No. 994/2011 dated 1.8.201111 Appeal No. 1340/2019 dated 5.9.201912 Appeal No. 1723/2017 dated 4.10.201713 (2011) 1 SCC 307

SQ Pathan 9/25

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the term `victim’ as defined under Section 2(wa) of the Cr.P.C nor could be

termed as an aggrieved/injured/interested person. Learned Spl. P.P also

relied on the judgment of Bhagwat Singh (supra) and Gangadhar

Janardan Mhatre vs. State of Maharashtra & Ors.14 in support of his

submission. He submitted that it is the duty of the State to ensure that no

accused goes scot-free. He submitted that the police have investigated the

case on the basis of the material collected by them during investigation and

have filed its closure report. He submitted that the closure report is yet to

be accepted by the learned Magistrate. According to Mr. Thakare, Spl. P.P,

the petitioner is not a supervisory authority over the police and as such, has

no locus standi in law to intervene in the closure proceedings pending

before the Magistrate. He submitted that whether the investigation has been

conducted properly or not, is a matter to be decided by the Magistrate and

that the Magistrate is competent to decide the same.

8 Mr. Ponda, learned senior counsel for the respondent No. 4

submitted that the petitioner has no locus to intervene in the closure report

filed by the respondent No.1-State under Section 169 Cr.P.C. He submitted

that there is no provision in law which permits a Magistrate to allow a third

party like the petitioner-ED to intervene in proceedings under Section 169

14 (2004) 7 SCC 768

SQ Pathan 10/25

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Cr.P.C and that the Magistrate is bound to follow the provisions of Cr.P.C

and the precedents. He submitted that the subordinate judiciary unlike Civil

Courts have no inherent powers and that the inherent powers under Section

482 vest only with the High Courts and the Supreme Court. In this regard,

learned senior counsel placed reliance on the judgment of the Apex Court in

the case of Major General A. S. Gauraya & Anr. vs. S. N. Thakur &

Anr.15, wherein the Apex Court had the occasion to address the question

whether a subordinate criminal court has any inherent jurisdiction outside

the provisions of the Cr.P.C, and had answered the same in the negative.

Learned senior counsel does not dispute the propositions laid down in the

various judgments relied upon by the learned ASG, however, submits that

the same will not apply to the facts in hand. He submitted that as per the

law laid down in the case of Bhagwat Singh (supra), only three categories

of persons are permitted to intervene/can be heard i.e. (i) the complainant or

informant is entitled to a notice; (ii) an injured is entitled to be heard; and

(iii) an heir of the deceased can also be heard in a case.

9 Mr. Ponda submitted that the petitioner, by no stretch of

imagination, would fall within the definition of the term `victim’ and cannot

15 (1986) 2 SCC 709

SQ Pathan 11/25

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be covered by Section 2(wa) of the Cr.P.C. He submitted that the petitioner-

ED can neither be a victim nor an injured. In this context, learned senior

counsel relied on the judgment of the Division Bench of this Court in

Mahendrasinh Jorubha Zala vs. Central Bureau of Investigation &

Ors.16, wherein, the definition of the term `victim’ was considered. Learned

senior counsel submitted that reliance placed by the learned ASG on

Abhinandan Jha (supra), in particular, para 19, wherein there is a

reference to Section 190(1)(c) Cr.P.C, has been corrected and noted in a

subsequent judgment i.e. in the case of H.S. Bains vs. State (para 7)17,

wherein, it is stated that the reference to Section 190(1)(c) in Abhinandan

Jha (supra) was a mistake/error and that the same should be read as 190(1)

(b). In conclusion, he submitted that there being no provision of law nor

any precedent in support of the petitioner’s claim, the petitioner cannot

be permitted to intervene in a closure report filed by the respondent

No.1-State. Mr. Ponda also relied on Harsh Mandar vs. Amit Anilchandra

Shah & Ors.18, J. K. International vs State Government of Delhi19 and

Debasish Bose & Anr. vs. State of West Bengal & Anr.20 in support of his

submission.

16 Criminal Appeal No. 970/2019 dated 5.8.201917 (1980) 4 SCC 63118 (2017) 13 SCC 42019 (2001) 3 SCC 46220 2015 CRLJ 2252

SQ Pathan 12/25

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10 Mr. Badheka, learned counsel appearing for the respondent

No. 5 adopted the submissions advanced by Mr. Ponda. He submitted that

in A. R. Antulay’s case (supra), the locus was with respect to initiation of

proceedings, which is not the case in the present proceedings. He submitted

that FEMA proceedings have already been initiated against respondent Nos.

4 and 5. He submitted that the petitioner-ED not being a victim/injured,

cannot be permitted to intervene/file Protest Petition in a closure report

filed by the State of Maharashtra i.e. the agency investigating the case in

hand. He submitted that the respondent No. 2-original complainant has

already filed his Protest Petition and it is for the Magistrate Court to decide

the closure report filed by the respondent No.1-State of Maharashtra and the

protest petition filed by the respondent No. 2-Akbar Travels (India) Pvt.

Ltd., after hearing the necessary parties having locus before the said Court,

by passing appropriate orders on the same.

11 Having heard learned ASG for the petitioner and the learned

counsel for the respondents and having perused several judgments relied

upon by the respective parties, the answer to the question raised in the

aforesaid petition, with respect to the locus of the petitioner-ED in a

closure report filed by the respondent No. 1-State of Maharashtra in a case

SQ Pathan 13/25

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registered at the behest of respondent No.2-Akbar Travels (India) Pvt. Ltd.

is, in the negative, for the reasons set out hereinunder.

12 Admittedly, the respondent No. 2-Akbar Travels (India) Pvt.

Ltd. filed a private complaint as against respondent Nos. 3 to 5 in the Court

of the learned Metropolitan Magistrate at Ballard Pier, Mumbai, praying

therein for an order under Section 156(3) Cr.P.C. The learned Magistrate

was pleased to pass an order under Section 156(3), pursuant to which, the

M.R.A Marg Police Station registered an FIR being C.R. No. 66 of 2020 as

against respondent Nos. 3 to 5 for the alleged offences punishable under

Sections 406, 420, 465, 467, 468, 471 and 120-B of the IPC. The said

offences being scheduled offences under the PMLA, the petitioner-ED

registered an ECIR as against the respondent Nos. 3 to 5 under the PMLA

and proceeded with its investigation. In the meantime, the respondent-

State, after investigation, filed its closure report (in C.R. No. 66 of 2020),

in the Court of the learned Magistrate. It is not in dispute that pursuant to

the notice issued by the learned Magistrate, the respondent

No.2/complainant-Akbar Travels (India) Pvt. Ltd. filed a Protest Petition

before the learned Magistrate. It appears that the petitioner-ED, on being

informed by the respondent No.2 about the closure report, also filed a

Protest Petition before the learned Magistrate and prayed that they be heard

SQ Pathan 14/25

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before any order could be passed on the closure report filed by the

respondent No.1-State. As noted above, the learned Magistrate rejected the

said Protest Petition filed by the petitioner-ED, which was challenged by

the petitioner before the learned Sessions Judge. Learned Sessions Judge

dismissed the revision application both on the ground of maintainability as

well as on merits.

13 From a perusal of the judgments of the Apex Court, in

particular, the judgment in Bhagwat Singh (supra), it is evident that there

are three categories of persons who have locus and who can be heard before

the closure report is accepted i.e. (i) the complainant/first informant is

entitled to a notice and to be heard; (ii) injured person and (iii) relative of

the deceased, to whom the Magistrate may not issue notices but have locus

to appear before the Magistrate and a right to be heard. However, the

discretion of giving notice to the injured person or relative of the deceased

vests with the Magistrate. In this context, it would be apposite to reproduce

the relevant paragraphs in the case of Bhagwat Singh (supra):

“4. ………… We are accordingly of the view that in a casewhere the magistrate to whom a report is forwarded under sub-section (2)(i) of Section 173 decides not to take cognizance of theoffence and to drop the proceeding or takes the view that there is nosufficient ground for proceeding against some of the personsmentioned in the First Information Report, the magistrate must givenotice to the informant and provide him an opportunity to be heard

SQ Pathan 15/25

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at the time of consideration of the report. It was urged before us onbehalf of the respondents that if in such a case notice is required tobe given to the informant, it might result in unnecessary delay onaccount of the difficulty of effecting service of the notice on theinformant. But we do not think this can be regarded as a validobjection against the view we are taking, because in any case theaction taken by the police on the First Information Report has to becommunicated to the informant and a copy of the report has to besupplied to him under sub-section (2)(i) of Section 173 if that be so,we do not see any reason why it should be difficult to serve notice ofthe consideration of the report on the informant. Moreover, in anyevent, the difficulty of service of notice on the informant cannotpossibly provide any justification for depriving the informant of theopportunity of being heard at the time when the report is consideredby the Magistrate.

5. The position may however, be a little different when weconsider the question whether the injured person or a relative of thedeceased, who is not the informant, is entitled to notice when thereport comes up for consideration by the Magistrate. We cannotspell out either from the provisions of the Code of Criminalprocedure, 1973 or from the principles of natural justice, anyobligation on the Magistrate to issue notice to the injured person orto a relative of the deceased for providing such person anopportunity to be heard at the time of consideration of the report,unless such person is the informant who has lodged the FirstInformation Report. But even if such person is not entitled to noticefrom the Magistrate, he can appear before the Magistrate and makehis submissions when the report is considered by the Magistrate forthe purpose of deciding what action he should take on the report.The injured person or any relative of the deceased, though notentitled to notice from the Magistrate, has locus to appear beforethe Magistrate at the time of consideration of the report, if heotherwise comes to know that the report is going to be consideredby the Magistrate and if he wants to make his submissions in regardto the report, the Magistrate is bound to hear him. We may alsoobserve that even though the Magistrate is not bound to give noticeof the hearing fixed for consideration of the report to the injuredperson or to any relative of the deceased, he may, in the exercise ofhis discretion, if he so thinks fit, give such notice to the injuredperson or to any particular relative or relatives of the deceased, butnot giving of such notice will not have any invalidating effect on theorder which may be made by the Magistrate on a consideration ofthe report.”

SQ Pathan 16/25

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14 It is thus evident that an informant/complainant is entitled to a

notice before any orders are passed on the closure report by the Magistrate,

whereas, an injured or in case of death, the relative of the deceased can be

heard, even without notice i.e. in cases where the police file a closure

report, or a `C’ summary report in respect of a complaint. Thus, the three

categories of persons whose `locus’ has been recognized are the

complainant, injured persons or the relatives/heirs of the deceased.

15 The term `victim’ is defined under Section 2(wa) of Cr.P.C and

was inserted by the Criminal Law Amendment Act 5 of 2009 w.e.f. 31st

December 2009. The said term `victim’ reads as under :

"2(wa) : “victim” means a person who has suffered any loss orinjury caused by reason of the act or omission for which theaccused person has been charged and the expression “victim”includes his or her guardian or legal heir.”

16 A Division Bench of this Court (Coram : Indrajit Mahanty (as

he then was) and A. M. Badar, JJ.) in the case of Mahendrasinh Jorubha

Zala (supra), whilst considering the definition of the term `victim’ observed

in paras 11 and 12 as under :

SQ Pathan 17/25

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“11 Now let us examine who can be said to be a victimcompetent to prefer an appeal challenging acquittal underSection 372 of the Cr.P.C. Section 2(wa) of the Cr.P.C. definesthe term victim. It reads thus :

“2(wa) “victim” means a person who has sufferedany loss or injury caused by reason of the act oromission for which the accused person has beencharged and the expression “victim” includes his orher guardian or legal heir.”

(emphasis supplied)

In the matter of Manoj Kumar Singh (supra) the Full Bench ofthe Allahabad High Court, in paragraph 54, has interpreted thisdefinition of the term victim and it reads thus:

“54 In nutshell, it can be concluded that victimmeans the actual sufferer of offence (receiver of harmcaused by the alleged offence) and no person otherthan actual receiver of harm can be treated as victimof offence, so as to provide him/ her a right to preferappeal under the proviso of Section 372. In absence ofthe direct sufferer or in a case where the direct sufferersuffers a disability his or her legal heir or guardianwould qualify as a victim.

In the matter of Uday Bhan (supra) following are theobservations of the Madhya Pradesh High Court found inparagraphs 7 and 8. They read thus :

“7 In view of the above, it is evident that “victim”who is the ultimate sufferer in the commission of acrime has been given recognition as an aggrievedparty by introducing the abovesaid amendment inCr.P.C. There is no manner of doubt that right from theoccurrence of the incident till the decision of trial,appeal or revision, till the highest court of law, the“victim” is as much interested in the decision as is theaccused or the State. Infact, the “victim” on account ofbeing the injured person and the sufferer, deserves to

SQ Pathan 18/25

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be recognized as the most aggrieved party in a crime.It is a happy state of affairs that the stand of the victimare now vindicated in shape of amendment in theCr.P.C.”

“8 This court has, thus, no hesitation to hold thatthe victim is an aggrieved person not only in a crime,but also in an investigation, enquiry, trial, appeal,revision, review and also the proceedings by which theinherent powers of this court under Section 482,Cr.P.C. are invoked.”

12 It is, thus, clear that victim is a person who hassuffered any loss or injury caused by reason of the act oromission for which the accused person has been charged. Thus,whether a person is a victim or not, is required to be judged quathe Charge framed against the accused persons in the concernedtrial, in the light of averments made in the chargesheet filed bythe prosecuting agency. The Charge framed by the trial courtagainst the accused must be in respect of that act of the accused,by which the victim has actually suffered any loss or injury.…………………………...”

17 The petitioner-ED claims to be an injured/a victim, in a

representative capacity of the victims. According to the petitioner-ED, the

ED being a victim of economic offences, which are serious in nature,

having large repercussions on the economy of a country, would have locus

to be heard before the closure report is accepted. According to the

petitioner-ED, the offence being a crime against the Society, it is its duty to

ensure that the culprits are properly prosecuted. Learned ASG submitted

that the petitioner-ED would fall in the category of interested person, as the

SQ Pathan 19/25

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agency i.e. ED is not only entrusted in bringing the offenders to book, but is

also entrusted with the task of ensuring that money laundering does not take

place. He further submitted that the petitioner-ED, being intrinsically

interested in the outcome of the FIR, is entitled to be heard before the

closure report is accepted. Reliance placed by the learned ASG on the

observations in the judgments relied upon, stating the object and reasons for

enacting the PMLA, cannot be disputed. However, the judgments relied

upon, have no bearing in the facts of the case, inasmuch as, the said

judgments pertain to rejection of bail under the PMLA. Having considered

the law in this regard, the petitioner-ED, by no stretch of imagination, can

either be construed to be a victim or an aggrieved/injured/interested person,

thus entitling them to be heard before the Magistrate decides whether the

closure report ought to be accepted or not. The respondent No. 1-State of

Maharashtra is the investigating agency in the present case, who has filed

the closure report in a case instituted by the respondent No. 2-Akbar

Travels (Idia) Pvt. Ltd. The petitioner-ED is not a supervisory authority

over the respondent No. 1- State, who has investigated the case. Take a

hypothetical example, a converse situation. If in a given case, any other

investigating agency feels that the Enforcement Directorate has not

investigated a case properly, can the said investigating agency intervene in

the investigation carried out by the Enforcement Directorate? Can they be

SQ Pathan 20/25

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permitted to do so? The obvious answer is `NO’. Each investigating agency

is expected to investigate the case before it, fairly on the basis of the

material gathered by them during investigation and thereafter submit its

report. No investigating agency can claim supervisory jurisdiction over the

other in the matter of investigation. In the present case, the Magistrate is

yet to pass orders on the closure report. It is for the Magistrate, after

hearing the parties, to consider whether to accept the closure report or not

or to direct further investigation or issue process. The respondent No.2-

complainant is contesting the closure report by filing a protest petition.

18 The petitioner-ED is an independent investigating agency,

empowered to investigate offences under the PMLA and FEMA and in the

facts, cannot be termed as a victim or aggrieved/injured/interested person,

having regard to the judicial pronouncements. There is no provisions in

law which supports the claim of the petitioner-ED with respect to its locus

to intervene and contest the closure report filed by the respondent No.1-

State. Thus, the petitioner cannot be permitted to intervene and contest in

the closure report filed by the respondent No.1-State.

19 It may also be noted that the Magistrates, unlike Civil Courts,

have no inherent powers under Section 151 of the Civil Procedure Code.

SQ Pathan 21/25

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The inherent jurisdiction under Section 482 vests only with the High Courts

and the Supreme Court. The Apex Court in Major General A. S. Gauraya

(supra), whilst considering the question whether a subordinate criminal

Court has any inherent jurisdiction outside the provision of the Cr.P.C has

answered the same in the negative. Thus, it is clearly evident that

Magistrates having no inherent powers cannot entertain applications/

petitions from any person other than a victim/complainant/injured person or

relative of the deceased, as stated hereinabove.

20 Reliance placed by Mr. Dubey appearing for respondent No. 2

in the case of Nahar Singh Yadav (supra) is also misplaced. In the said

case, the Supreme Court was dealing with Section 406(2) Cr.P.C i.e. power

of Supreme Court to transfer cases and appeals. In the said case, the CBI

was considered to be an interested party. The powers of Section 406 Cr.P.C

cannot be equated with the facts of the present case, inasmuch as, the term

`interested party’ does not find place in the definition of the term `victim’ as

defined under Section 2(wa) Cr.P.C or in the judgments referred to

hereinabove. Hence, reliance placed on the said judgment is misplaced.

21 Reliance placed by the learned ASG on the judgment of the

Apex Court in the case of Sheonandan Paswan (supra), is also misplaced.

SQ Pathan 22/25

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It is pertinent to note that the observations made in para 14 with respect to

the issue of locus to withdraw prosecution, on which reliance is placed by

the learned ASG is the minority view of the Judges, whereas, the majority

judgment had not adhered to the same and the same is evident from para 36

of the said judgment. Infact, this Court in the case of Harsh Mandar

(supra) has categorically taken a view after referring to Sheonandan

Paswan (supra) that the said judgment is restricted in its applicability to

Section 321 Cr.P.C. It is not in dispute that the said judgment i.e. Harsh

Mandar’s case (supra) has been upheld by the Apex Court. As far as the

other judgments relied upon by the learned ASG in support of his

submission to show that the petitioner has locus, pertain to cases where the

wife or the brother’s right has been recognized. Some judgments

pertain/relate to actual de facto complainant who were the aggrieved

persons. Thus, the said cases are clearly distinguishable and reliance on the

same is clearly misplaced.

22 Similarly, reliance paced on the judgment of Abhinandan Jha

(supra), in particular para 19, where there is a reference to Section 190(1)

(c) Cr.P.C, to show that petitioner has ‘locus’ to intervene is also misplaced,

inasmuch as, the Apex Court in H.S. Bains (supra) has noted that the

SQ Pathan 23/25

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reference to Section 190(1)(c) in Abhinandan Jha (supra) was a

mistake/error and that the same should be read as 190(1)(b).

23 As far as the submission of the learned ASG with respect to the

observations made by the Sessions Judge on merits is concerned, there is

some substance in the same, inasmuch as, once the learned Sessions Judge

having held that the revision application was not maintainable, ought not to

have traversed into the merits of the case. As far as the learned

Magistrate’s order is concerned, the learned Magistrate ought to have

decided the locus of the petitioner-ED in the closure report filed by the

respondent No. 1-State of Maharashtra, instead of observing that the

offence pertaining to PMLA is to be decided by a different Court. Be that

as it may, I have, in detail, considered the locus of the petitioner-ED to

intervene in a closure report filed by the respondent No. 1-State of

Maharashtra before the Magistrate and have recorded the reasons

hereinabove.

24 The petition, being devoid of merit, is dismissed and

accordingly disposed of.

SQ Pathan 24/25

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25 All concerned to act on the copy of this order, digitally signed

by the Senior Private Secretary of this Court.

REVATI MOHITE DERE, J.

26 At this stage, Mr. Shirsat, learned counsel for the petitioner-ED

seeks stay of this order. The request for stay is rejected.

REVATI MOHITE DERE, J.

SQ Pathan 25/25