1 / 11 2025:CGHC:7024 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRR No. 182 of 2025 1 - Arun Pati Tripathi S/o Late Shri Prakash Pati Tripathi Aged About 55 Years R/o House No. 1A, Street- SPA, Sector-9, Bhilai, Durg Chhattisgarh ... Applicant versus 1 - Directorate of Enforcement Raipur Zonal Office, 2nd Floor, A-1 Block Pujari Chambers, New Dhamtari Road, Panchpedinaka Raipur, Chhattisgarh ... Respondent For Applicant : Mr. Shailendra Dubey, Advocate along with Mr. Aditya Tiwari, Advocate For Respondent/ED : Dr. Saurabh Kumar Pande, Advocate (Hon’ble Shri Justice Arvind Kumar Verma) Order on Board 07/02/2025 1. The instant revision has been filed under Section 438 read with Section 422 BNSS, 2023 against the order dated 05/10/2024 passed by the learned Special Judge (PMLA), Raipur, C.G. whereby the cognizance has been taken in prosecution complaint filed in ECIR/RPZO/04/2024 against the applicant under Section 3 read with Section 4 of the Prevention of Money Laundering Act, 2002. 2. The brief facts of this case are that:- ASHUTOSH MISHRA Digitally signed by ASHUTOSH MISHRA Date: 2025.02.14 12:28:58 +0530 2 / 11  On 04.07.2023, a Prosecution Complaint u/s 45 r/w Sec. 44 PMLA was filed by the ED against inter alia the Applicant.  On 11.07.2023, ED addressed a letter u/s 66 PMLA to ACB, Raipur seeking registration of an FIR with the aim of creating a scheduled offence for itself.  On 30.07.2023, an FIR bearing No. 196/2023 u/s 420, 468, 471, 473, 484, 120-B IPC ("UP FIR") was registered at PS Kasna Police, Greater Noida, Uttar Pradesh on the basis of a letter dated 28.07.2023 sent by the ED u/s 66 PMLA.  On 17.01.2024 the ED has caused the registration of another FIR bearing No. 04/2024 dated 17.01.2024 u/s 420, 467, 468, 471, 120-B IPC r/w Sec. 7 & 12 Prevention of Corruption Act, 1988 ("Chhattisgarh FIR").  On 10.04.2024, in view of the above facts and circumstances, the Applicant filed a Petition seeking quashing of the Chhattisgarh FIR which was subsequently numbered as CRMP/936/2024. Along with the said Writ Petition, the Applicant had also sought interim relief similar to the relief granted to the co-accused of the Applicant by this court on 01.04.2024. Thereafter, the Applicant was arrested on 12.04.2024 by the ACB, Raipur. The Applicant was been remanded to a total of 14 days of Police custody and has been in judicial custody in relation to the Chhattisgarh FIR ever since. 3 / 11  On 11.04.2024, within 3 days after quashing of the Prosecution Complaint in relation to ECIR 11, ED registered a second ECIR, being ECIR/RPZO/04/2024 ("2nd ECIR") by again treating the Chhattisgarh FIR as the alleged scheduled offence and again making allegations of a fictitious liquor scam in the State of Chhattisgarh.  On 05/10/2024 respondent Enforcement Directorate filed prosecution complaint against the present applicant and the learned Special Judge passed the order thereby taking cognizance of the offence under Section 3 read with Section 4 of the PMLA in relation to the Prosecution Complaint filed in the subject ECIR against the applicant. Hence this petition. 3. Learned counsel for the applicant would contend that:- (a) at the time of passing the order on 05.10.2024 where cognizance of the offence of money laundering was taken, no sanction u/s 197(1) CrPC or u/s 218(1) BNSS was obtained by the Respondent/ED for prosecution of the Petitioner, despite the fact that the petitioner was a Public Servant at the time of the commission of the alleged offence and despite the mandatory requirement for obtaining such a sanction in terms of Section 197(1) CrPC read with Section 65 PMLA. He would next contend that even as on date, no sanction u/s 218 BNSS has been obtained by the Respondent/ED for prosecution of the Petitioner. He would next contend that Section 218(1) BNSS having been obtained by the Respondent/ED for prosecution of the Petitioner 4 / 11 herein, despite the fact that the Petitioner was a public servant at the time the alleged commission of the alleged offence. (b) He would next contend that a sanction from the concerned government, as envisaged under Section 197 Cr.P.C. or Section 218 BNSS, is a necessary precondition for a Court to take cognizance of any offence alleged to have been committed by a public servant. Without such sanction from the concerned government, the competent Court does not have the jurisdiction to take further proceedings in the matter, including taking cognizance of the alleged offences. He would next contend that the Hon'ble Supreme Court has recently held in the case of Enforcement Directorate v. Bibhu Prasad Acharya, 2024 SCC OnLine SC 3181 and declared the law that the Sanction under Section 197(1), CrPC for prosecution of inter alia a Public Servant must have been obtained prior to taking cognizance of the offence of money laundering u/s 3 of the PMLA as well. (c) He would also contend that by virtue of the above position of law as settled and clarified by the Hon'ble Supreme Court in Bibhu Prasad Acharya (supra), it is therefore abundantly clear that the provisions of Section 197(1), CrPC are applicable to a Complaint u/s 44 of the PMLA. 4. Per contra, learned counsel for the Respondent would contend that:- 5 / 11 (A). In the instant case the prosecution complaint against the petitioner was filed on 11/04/2024 before the Special PMLA Court and cognizance was taken on 05/10/2024 by the learned trial Court. (B). He would next contend that at the time of taking cognizance by the learned trial Court there was no requirement for taking prosecution sanction under Section 197 (1) of Cr.P.C. He placed his reliance in the law laid down by this Court in the matter of Vinod Maleshwar Vs. The Enforcement Directorate, Raipur {CRR No.816 of 2018, decided on 17/06/2022} wherein it has been laid down that if the applicants are made accused in the money-laundering case, there is no illegality and also there is no any bar under any law for their impleadment in money laundering case. (C) He would lastly contend that the respondent has sought sanction for prosecution of the applicant, therefore, the instant petition may be dismissed. 5. I have heard learned counsel for the parties and perused the documents. 6. The questions fall for consideration before this Court are (i) whether the offence is committed by a public servant?; (ii) whether petitioner’s alleged act reasonably connect with the discharge of official duty? 7. The term public servant has been defined in Section 2 (28) of the Bharitya Nyay Sanhita, and it is an admitted fact that the petitioner was working as Special Secretary and Managing Director of the 6 / 11 Chhattisgarh State Marketing Corporation Limited on deputation in the State of Chhattisgarh and he is in the service of Central Government, therefore, he is public servant as defined under Section 2 (28) of the BNS. 8. Now coming to the question of second question that whether petitioner’s alleged act reasonably connect with the discharge of official duty? 9. The Supreme Court in Enforcement Directorate v. Bibhu Prasad Acharya, 2024 SCC OnLine SC 3181 has held thus in paras 17, 18 & 19 which are reproduced hereinbelow:- 17. Section 65 makes the provisions of the CrPC applicable to all proceedings under the PMLA, provided the same are not inconsistent with the provisions contained in the PMLA. The words 'All other proceedings' include a complaint under Section 44 (1)(b) of the PMLA. We have carefully perused the provisions of the PMLA. We do not find that there is any provision therein which is inconsistent with the provisions of Section 197(1) of CrPC. Considering the object of Section 197(1) of the CrPC, its applicability cannot be excluded unless there is any provision in the PMLA which is inconsistent with Section 197(1). No such provision has been pointed out 7 / 11 to us. Therefore, we hold that the provisions of Section 197(1) of CrPC are applicable to a complaint under Section 44(1)(b) of the PMLA. 18. Section 71 gives an overriding effect to the provisions of the PMLA notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Section 65 is a prior section which specifically makes the provisions of the CrPC applicable to PMLA, subject to the condition that only those provisions of the CrPC will apply which are not inconsistent with the provisions of the PMLA. Therefore, when a particular provision of CrPC applies to proceedings under the PMLA by virtue of Section 65 of the PMLA, Section 71 (1) cannot override the provision of CrPC which applies to the PMLA. Once we hold that in view of Section 65 of the PMLA, Section 197(1) will apply to the provisions of the PMLA, Section 71 cannot be invoked to say that the provision of Section 197(1) of CrPC will not apply to the PMLA. A provision of Cr. P.C., made applicable to the PMLA by Section 65, will not be overridden by Section 71. Those provisions of CrPC which apply to the PMLA by virtue of 8 / 11 Section 65 will continue to apply to the PMLA, notwithstanding Section 71. If Section 71 is held applicable to such provisions of the CrPC, which apply to the PMLA by virtue of Section 65, such interpretation will render Section 65 otiose. No law can be interpreted in a manner which will render any of its provisions redundant. 19. In this case, the cognizance of the offence under Section 3, punishable under Section 4 of the PMLA, has been taken against the respondents accused without obtaining previous sanction under Section 197(1) of CrPC. Therefore, the view taken by the High Court is correct. We must clarify that the effect of the impugned judgment is that the orders of the Special Court taking cognizance only as against the accused B.P. Acharya and Adityanath Das stand set aside. The order of cognizance against the other accused will remain unaffected. However, it will be open for the appellant to move the Special Court to take cognizance of the offence against the two respondents if a sanction under Section 197(1) of CrPC is granted in future. This liberty will be subject to legal and factual objections available to the respondents. 9 / 11 Hence, the appeals must fail and are dismissed subject to what is observed. 10. Section 197 of the Cr.P.C. is reproduced hereinbelow:- 197 Prosecution of Judges and public servants.-(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction 1[save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence 10 / 11 employed, in connection with the affairs of a State, of the State Government: 11. A bare perusal of Section 197 Cr.P.C. shows that the essential conditions must be satisfied for the appreciation of Section 197 Cr.P.C. i.e.; (1) Offence mention therein must be committed by a public servant.; (2) The protection is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty. 12. Therefore, from the above reading, it is crystal clear there must be connection between official duty with the alleged offence. Section 197 Cr.P.C. restrict its scope of operation to only those acts or actions which are done by a public servant in discharge of official duty. 13. Therefore, in view of the well settled principles of law and for the fact that since Respondent/ ED has alleged that the Petitioner, who was the Special Secretary and Managing Director of the Chhattisgarh State Marketing Corporation Limited at the time of commission of the alleged offences, had collected illegal commission in the sale of liquor in the state and supplied country liquor to government liquor shops without accounting, thereby earning crores of rupees of illegal money and caused financial loss to the government, which is evident as per the allegations levelled by the Respondent/ED in the Prosecution Complaint dated 11/04/2024, the alleged offence is alleged to have been committed while acting or purporting to act in the discharge of his duties as Special Secretary and Managing Director of the Chhattisgarh State Marketing Corporation Limited, therefore, there is 11 / 11 official nexus in doing the said act. Furthermore, during the course of argument learned counsel for the Respondent has contended that the ED has obtained sanction of prosecution under Section 197 (1) of Cr.P.C. (Section 218 of B.N.S.S., 2023) only on 06/02/2025 whereas on the date of filing of prosecution complaint the same was not obtained, therefore, ED is given liberty to take cognizance against the applicant afresh. 14. Accordingly, the order dated 05/10/2024 passed by the learned Special Judge (PMLA) Raipur whereby the cognizance has been taken in Prosecution Complaint dated 11/04/2024 with respect to the petitioner is set aside. However, the respondent is granted liberty to proceed further before the trial Court for taking cognizance afresh against the petitioner. 15. In the result, the instant criminal revision stands allowed to the extent indicated above. SD/- (Arvind Kumar Verma) JUDGE ashu