Chattisgarh High Court
Anil Tuteja vs Directorate Of Enforcement on 2 April, 2025
1
2025:CGHC:15512
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRR No. 246 of 2025
1 - Anil Tuteja S/o Late H. L. Tuteja Aged About 61 Years R/o House No. 35/1396, Beside
Farishta Nursing Home, Katora Talab, Civil Lines, Raipur (C.G.) ( Details Wrongly
Mentioned In Certified Copy Of Impugned Order Annexure A/1 With Other Co-Accused).
...Applicant(s)
versus
1 - Directorate Of Enforcement Through Assistant Director, E.D., Raipur Zonal Office,
Raipur, District- Raipur, C.G. (Details Wrongly Mentioned As 039assistant Director Pmla,
Directorate Of Enforcement, Raipur, Zonal Office, Raipur, C.G.039 In Certified Copy Of
Impgned Order Annexure A/1)
... Respondent(s)
For Applicant(s) : Mr. Saurabh Dangi, Advocate
For Respondent(s) : Dr. Saurabh Kumar Pandey, Advocate
Hon’ble Shri Justice Arvind Kumar Verma, Judge
Order on Board
02/04/2025
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.
2
whereby the cognizance has been taken in prosecution
complaint dated 19/06/2024 filed in ECIR/RPZO/04/2024 dated
11/04/2024 against the petitioner under Section 3 read with
Section 4 of the Prevention of Money Laundering Act, 2002.
2. The Petitioner is a retired officer of the Indian Administrative
Services with a distinguished and unblemished service record.
He retired as the Joint Secretary in Department of Commerce
and Industry, Chhattisgarh in May, 2023. The Petitioner is a
well reputed individual having deep roots in the society and
resides in Raipur along with his wife and two children. The
Petitioner does not have any criminal antecedents. In the
instant case, it is pertinent to note that at the time of passing the
Impugned Order (i.e., on 05.10.2024) where cognizance of the
offence of money laundering was taken, no sanction u/s 197(1)
CrPC was obtained by the Respondent/ED for prosecution of
the Petitioner herein, despite the Petitioner being 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. Pertinently, even as on date, to the best of the
Petitioner’s knowledge, no sanction u/s 197(1) CrPC has been
obtained by the Respondent/ED for prosecution of the
Petitioner. Based upon a prosecution Complaint filed by the
Income Tax Department bearing Ct. Case. No. 1183/2022 u/s
276(C)/277/278/278E IT Act r/w Sec. 120-B/191/199/200/204
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IPC (“IT Complaint”) the ED registered an ECIR bearing No.
ECIR/RPZO/11/2022 (“ECIR 11”) treating the offence u/s 120B
IPC as the standalone scheduled offence. The ECIR 11 alleged
existence of a liquor scam in the State of Chhattisgarh that
allegedly existed between 2019-2022. On 04.07.2023, the
Respondent/ED filed a Prosecution Complaint u/s 44 r/w Sec.
45 of the Prevention of Money Laundering Act, 2002 (“PMLA”)
in relation to ECIR 11. Notably, the Petitioner was not arraigned
s an accused by the Respondent/ED despite having raised
several allegations against him. On 17.01.2024, the ACB,
Raipur registered the FIR bearing No. 04/2024 (“Chhattisgarh
FIR” / “Scheduled Offence FIR”) at the behest of the
Respondent/ED inter alia against the Petitioner based upon a
letter dated 11.07.2023 sent during the course of an illegal
investigation by the ED in absence of any Scheduled Offence.
Pertinently, on 18.01.2024, the ACB, Raipur had sought for and
was granted sanction u/s 17A of the Prevention of Corruption
Act, 1988 on 22.02.2024 for investigation qua the Petitioner
herein in the Scheduled Offence FIR. Copy of the FIR bearing
No. 04/2024 registered by the ACB, Raipur is annexed herewith
as Annexure A/2. Copy of letter sent by the Director General,
EOW, to the Secretary, Chhattisgarh General Administration,
for prior approval under Section 17A of the Prevention of
Corruption Act, regarding the investigation against inter-alia the
Petitioner is annexed herewith as Annexure A/3. Copy of Prior
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approval received under Section 17A of the Prevention of
Corruption Act for investigation against inter-alia the Petitioner
is annexed herewith as Annexure A/4. On 08.04.2024, the
Hon’ble Supreme Court was pleased to quash the Prosecution
Complaint dated 04.07.2023 filed by the Respondent/ED in
ECIR 11, along with the entire material and investigation
conducted by the ED therein, with a finding that no scheduled
offence is made out and there were no proceeds of crime in
relation to ECIR 11 and the Prosecution Complaint filed therein.
Copy of the Order dated 08.04.2024 passed by the Hon’ble
Supreme Court is annexed herewith as Annexure A/5. On
11.04.2024, within 3 days of quashing of the ECIR, a
subsequent ECIR bearing No. ECIR/RPZO/04/2024 (“Subject
ECIR”) was registered by the ED on the same facts, allegations
and underlying material as the ECIR 11. The Subject ECIRis
predicated upon the offences in the Chhattisgarh FIR as the
alleged scheduled offences. Copy of ECIR bearing No. 04/2024
dated 11.04.2024 is annexed herewith as Annexure A/6. On
20.04.2024, the Petitioner was arrested in the utmost mala fide
and illegal manner by the Respondent/ED after the Petitioner
had appeared before the ACB, Raipur pursuant to summons in
relation to the Chhattisgarh FIR.
3. Learned counsel for the petitioner 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
5sanction 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 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. Thus, the previous
Sanction u/s 197(1) CrPC is a pre- requisite for prosecution of
a Public Servant, i.e., the Petitioner herein in the Subject Case,
for the offence u/s 3, PMLA, and cognizance cannot be taken
in the absence thereof. He would next contend that in the
Prosecution Complaint dated 28.06.2024, the Respondent/ ED
has alleged that the Petitioner, who was a public servant (a
promote IAS Officer) at the time of commission of the alleged
offences, in his capacity as an IAS Officer and being the Joint
Secretary of the Department of Commerce and Industry at the
6relevant time, was allegedly the most powerful bureaucrat in
the State of Chhattisgarh allegedly wielding enough power to
control the police, mining, environment, liquor department
including by allegedly placing individuals in key position. It was
also alleged that the Petitioner was chief architect of the
alleged liquor scam and by virtue of his office and close
proximity with the erstwhile Chief Minister, controlled postings
of all IAS-IPS and other government officials. It was also
alleged that he placed one Sh. Arun Pati Tripathi as the MD of
Chhattisgarh State Marketing Corporation Limited (“CSMCL”).
It has been alleged that the Petitioner was doing large scale
corruption and misused his, position. Therefore, as per the
allegations levelled by the Respondent/ED the Petitioner
herein was a public servant removable from his office by or
with the Government’s sanction, and the alleged offence is
alleged to have been committed while holding such public
office and acting or purporting to act in the discharge of his
duties as the then the Joint Secretary of the Department of
Commerce and Industry. Further, Section 65 PMLA makes all
provisions of the CrPC applicable to proceedings under the
PMLA, including Section 197 CrPC. Thus, the protection under
Section 197(1), CrPC extends to the Petitioner and the Ld.
Special Judge erred in taking cognizance of the offence u/s 3
r/w Section 4 of the PMLA as against the Petitioner without the
Respondent/ED having obtained previous sanction u/s 197(1),
CrPC.
(d) He would next contend that that Ld. Special Judge
erroneously passed the Impugned Order thereby taking
cognizance of the offence u/s 3 r/w Section 4, PMLA without
any prior Sanction having been obtained by the
Respondent/ED for prosecution of the alleged offence qua the
Petitioner, being a Public Servant at the time of alleged
commission of the alleged offence. It is settled law that the
question of sanction u/s 197(1), CrPC can be raised at any
time after the cognizance, whether that be immediately after
cognizance or framing of charge or even at the time of
conclusion of trial and after conviction as well. He placed his
reliance in the law laid down by the Supreme Court in the
matters of Prakash Singh Badal & Anr. v. State of Punjab &
Ors., (2007) 1 SCC 1; P.K. Pradhan v. State of Sikkim,
(2001) 6 SCC 704; Bibhu Prasad Acharya, (supra). Hence,
the impugned order taking cognizance of the offence of money
laundering u/s 3 r/w 4 PMLA, as alleged in the Prosecution
7
Complaint dated 19.06.2024 without prosecution sanction
taking cognizance by the special judge is per se illegal,
therefore, the same may be set aside with respect to the
petitioner.
4. Per contra, learned counsel for the Respondent would
contend that:-
(A). In the instant case the prosecution complaint against the
petitioner was filed on 19/06/2024 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 accused Anil Tuteja has
committed the offence of money laundering as defined under
section 3 of PMLA, 2002 punishable under section 4 of PMLA,
2002 and he was arrested by the Directorate of Enforcement,
Raipur Zonal Office on 20.04.2024. The prosecution complaint
8
against him was filed on 19.06.2024 before the Hon’ble Special
Court (PMLA) Raipur. On the basis of material available, the
Ld. trial Court took cognizance of the offence against the
present applicants on 05.10.2024. The sanction for prosecution
from the competent authority under Section 197 Cr.P.C. was
not required at that time in view of the judgment of
Chhattisgarh High Court in the case of Vinod Malewar Vs.
The Enforcement Directorate, Raipur in CRR No. 816 of
2018. And at that time, it was not a mandatory requirement to
be complied in the cases of PMLA. It is further submitted that
after the mandate of the Hon’ble Supreme Court in the case of
Directorate of Enforcement Vs. Bibhu Prasad Acharya, 2024
SCC OnLine SC 3181, approval of the competent authority
has been taken, and the same has been received to
prosecute Anil Tuteja for the offence of money laundering
under Section 3 read with Section 4 of the PMLA vide
letter dated 14.02.2025 from the office of the Additional
secretary, Chhattisgarh Government. The Order of
Prosecution Sanction has been duly submitted before the
Hon’ble Special Court on 18.02.2025 for making it a part of
the record.
5. I have heard learned counsel for the parties and perused the
documents.
9
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 Joint Secretary of the Department of
Commerce and Industry 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 second question that whether petitioner’s
alleged act reasonably connect with the discharge of official
duty?
9. 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 withthe previous sanction 1[save as
10otherwise 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 employed, in connection with
the affairs of a State, of the State
Government:
10. 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.
11. 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.
11
12. 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 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
12with 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 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.
13
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. Hence, the appeals must
fail and are dismissed subject to what is
observed.
13. Since Respondent/ ED has alleged that the Petitioner, who was
the Joint Secretary of the Department of Commerce and Industry
at the time of commission of the alleged offences. The alleged
offence is alleged to have been committed while acting or
purporting to act in the discharge of his duties as Joint Secretary
of the Department of Commerce and Industry. Therefore, there is
official nexus in doing the said act.
14. It is also pertinent to mention here that 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 14/02/2025
whereas on the date of filing of prosecution complaint the same
was not obtained, therefore, ED is given liberty to take recourse to
the concerned Court for taking cognizance against the applicant
afresh. Therefore, the ED knows very well that in this case
14
prosecution sanction is mandatory to prosecute the petitioner. It is
crystal clear that on the date of taking cognizance there was no
prosecution sanction obtained by the ED and without posecution
sanction learned Special Judge PMLA, Raipur has taken
cognizance on 05.10.2024 against the petitioner which is illegal
and bad in law and it deserves to be set aside.
15. 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 19/06/2024 sine qua to the
petitioner is set aside. However, the respondent/ ED is granted
liberty to take recourse to the concerned Trial Court for taking
cognizance afresh against the petitioner. And, the learned Trial
Court is directed to examine the sanction order produced by the
respondent/ED before taking cognizance.
16. As a result, the instant criminal revision stands allowed to the
extent indicated above.
Sd/-
(Arvind Kumar Verma)
JUDGE
Madhurima
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