New Delhi, Aug 11 (PTI) The Supreme Court on Monday said the “devil is not in the law” but “in the abuse” of the provisions of Prevention of Money Laundering Act (PMLA) as it refused to examine former Chhattisgarh chief minister Bhupesh Baghel’s plea challenging the PMLA provision empowering the ED to file supplementary chargesheets in money laundering cases.
A bench of Justices Surya Kant and Joymalya Bagchi refused to examine the constitutional validity of Section 44 of the PMLA, which empowers Enforcement Directorate (ED) officials to file supplementary chargesheet and said the embargo cannot be put on unravelling evidences in the pursuit of truth.
The top court, however, allowed Baghel to approach the high court in case he believed the ED officials, who are probing a number of cases in Chhattisgarh, weren’t following the procedure laid down in the 2022 verdict of the apex court.
Justice Bagchi told Additional Solicitor General S V Raju, appearing for the ED, that further investigation was not envisaged in 1898 in the original form of code of criminal procedure but in 1973 to overcome the vice of interim police report.
“The devil is not in the law. The difficulty is in the abuse. The amendment in the new code (1973) carried over to the BNSS, the requirement of judicial oversight is coming because 173(8) CrPC was brought to ensure that investigation concludes in a final report or a police report. This interim police report was never envisaged. In order to avoid the vice of interim police report 173 (8) of CrPC was brought in. Now, what is happening is that it is not blocking the vice. This is the abuse which has to be seen,” Justice Bagchi told Raju.
The bench told senior advocate Kapil Sibal, appearing for Baghel, that there was nothing per se illegal or wrong with the ED filing supplementary chargesheet as further investigation may also help the accused.
“So your case is that provision is being misused. Power is not to be construed that you will indulge in unauthorised action. If the power is exercised strictly under the statute or under the provision, it can be in favour of the accused also… Why can’t a complaint be further investigated to find out whether the accused is innocent,” the bench said.
The bench noted the investigation was never qua an accused but qua an offence and so the act used in respect of investigation was only incidental.
“There may be an incriminating fact or may be an exonerative fact. If you look, investigation in that way, has nothing to do with the filing of a police report or non filing of a police report against a particular individual,” the bench told Sibal.
Justice Bagchi noted the law actually says it is “not conferring any power but recognising a residual power” in investigating agencies to bring out facts for the end of justice and unravel the truth.
“Truth is the only pursuit of the investigator, a prosecutor and finally a judge and in this voyage, there cannot be any control. If we use these principles now to the pursuit of truth in the hands of the officers’ inquiry with regard to breach under the PMLA, they can undertake that exercise and are empowered to do so by the law. Can there be any embargo to bring out unravelled material to bring out the truth? That is how we read the explanation. The explanation is nothing but an enabling provision,” the bench told Sibal.
Sibal said the ED was filing subsequent complaints and trials weren’t taking place as a result.
“It’s not because of us. They file subsequent complaints every few months before trial. This is happening throughout the country,” he said. The probe agency initially arrests two accused, Sibal said, then they do further investigation and allow the accused to make statements under Section 50 of the PMLA and then add six more accused to the case.
On August 4, the top court censured the practice of affluent persons coming to it directly seeking reliefs in criminal cases as it asked Bhupesh Baghel and his son to go to the high court in cases probed by central investigating agencies.
The matters relate to the alleged liquor scam in Chhattisgarh and other cases.
It had asked the father and son duo why should the top court go into their pleas against FIR, arrest and remand and PMLA provisions.
Investigation agencies including the CBI and ED are probing several cases including coal scam, liquor scam, Mahadev betting app cases, Rice mills cases and DMF scam cases, which allegedly happened during the tenure of Bhupesh Baghel as the chief minister.
In July, Chaitanya was arrested in a money laundering case related to the alleged Chhattisgarh liquor scam. PTI MNL MNL AMK AMK
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