File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

Corruption: Perspectives on Crime, Law, and Society in India

"People are eyes, judges are voice of the society". Crime and law is everywhere but the true identity of a society is determined by the ideologies and perspective of people regarding the crime and laws made in order to prevent crime. One of such example is case of "Vijay Madanlal Chaudhary vs Union of India". In this case the advocates and judges express their concerns regarding crime of money laundering and laws preventing them. The aim of this blog to analyse arguments of the advocates and Obita Dicta of judges to understand ideology of current Indian society and judiciary.

Case all about [Vijay Madanlal Chaudhary vs UOI]:

The writ petition was filed concerning validity and interpretation of certain provisions of the Prevention of Money-Laundering Act, 2002 and the procedure and power of Enforcement Directorate during investigation under the PMLA, that alleges violation of the fundamental rights. Parliament amended Section 45 of the 2002 Act vide Act 13 of 2018, so as to remove the defect noted in the said decision and to revive the effect of twin conditions specified in Section 45 to offences under the 2002 Act. At the same time, separate writ petitions have been filed to challenge several other provisions of the 2002 Act and all those cases alleges overlapping issues.

Arguments of Private Parties:

  1. It was argued by leaned council that ED can arrest an individual on the basis of an ECIR without informing him about his guilt, which is arbitrary and a violation of the fundamental rights of an accused.
  2. Thus, there must be at least a prima facie quantification to ensure that the threshold of the PMLA is met and it cannot be urged that the ECIR is an internal document.
  3. Learned counsel has also challenged the aspect of the Schedule being overbroad and inconsistent with the PMLA and the predicate offences. It is argued that even in the Statements of Objects and Reasons of the 1999 Bill, it has been stated that the Act was brought in to curb the laundering stemming from trade in narcotics and drug-related crimes.
  4. It was to be seen in light of organized crime, unlike its application today to less heinous crimes such as theft. It is submitted that there was no intention or purpose to cover offenses under the PMLA so widely. It is also submitted that there are certain offenses which are less severe and heinous than money-laundering itself and that the inclusion of such offenses in the Schedule does not have a rational nexus with the objects and reasons of the PMLA and the same is unreasonable, arbitrary, and violative of Articles 14 and 21 of the Constitution of India.

Arguments of Union of India:

  1. The government compared the Indian standards for money laundering with levels at the international level.
  2. The development of international consensus towards the offense of money-laundering has been highlighted.
  3. Total cases registered by police are higher than actual matters that are investigated by ED.
  4. It is further argued that jurisdictions under monitoring are put in two types of lists viz., grey list and black list, places in these lists can deteriorate the financial health of the country and such country also consider as a 'high-risk country'.
  5. PLMA is a special act which does not require normal criminal procedures and it is important to make laws as per 47th law commission report.
  6. The Parliament is fully competent to deal with special types of cases by providing a distinct and different procedure which in the circumstances, cannot be said to be unreasonable.

Observations of the court:

  1. Judgment in Seaford Court Estates ld. which states, "It would certainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity.
  2. It is the duty of the State to secure social, economic, and political justice and minimize income inequalities.
  3. Article 39 of the Constitution mandates the State to ensure economic justice to everyone. Also to prevent economic offenses that lead to an imbalance in society.
  4. Money-laundering is one of the heinous crimes, which not only affects the social and economic fabric of the nation but also tends to promote other heinous offenses, such as terrorism, offenses related to the NDPS Act, etc.
  5. It is a proven fact that the international criminal network that supports home-grown extremist groups relies on the transfer of unaccounted money across nation States.
  6. The entire Community is aggrieved if the economic offenders who ruin the economy of the State are not brought to books.
  7. Investigation in an economic offense, more so in the case of money-laundering, requires a systematic approach.
  8. It can never be the intention of the Parliament to exclude the operation of Section 45 in the case of anticipatory bail, otherwise, it will create an unnecessary dichotomy between bail and anticipatory bail which not only will be irrational but also discriminatory and arbitrary.
Till now we are more oriented towards protection of fundamental rights. Even if the violation of individual is for betterment and protection of large. It is argued by private parties that an accused can either directly or indirectly commit money-laundering if he is connected by any such actions. In such a case arrest of a person without informing him is better for whole society .

It was suggested by the learned council that the investigation may shed some light on such alleged proceeds of crime, for which, facts must first be collected and there should be a definitive determination whether such proceeds of crime have actually been generated from the scheduled offence. Detention and arrest of such person by ED under section 45 of PMLA helps them to collect information for the large nexus involves in money laundering. It is also argued that the Parliament has over widen the scope of Prevention of Money Laundering Act through amendment. It totally depends on case to case basis.

The union of India compared the situation at international level. The Parliament aims to improve the standards of investigation in economic offences for which they entrusted ED.Judiciary on the other hand entrust Parliament to minimize inequalities. As stated in this case "It is the duty of the State to secure social, economic and political justice and minimize income". Inequalities".

Money laundering is the back bone of all organized crimes. It affects the social and economic fabric of the nation and tends to promote other heinous offences, such as terrorism, offences related to NDPS Act, etc. The Judiciary knows the importance of bail in matters of economic offences. Hence, apex court directed the lower courts to have strict approach while granting Anticipatory Bail and ordinary Bail in such cases.

Case all about [Vijay Rajmohan vs State]

The Appellant is an official of the Central Secretarial Service, Government of India. he is alleged to have acquired assets that were disproportionate to his known sources of income. the CBI completed investigation and sought sanction from the appointing authority, the Department of Personnel and Training7, for prosecuting the Appellant

Arguments of counsel:

  • Grant of sanction was without application of an independent mind. the sanction for prosecution was hit by non-application of mind as DoPT had acted on dictation by the CVC, and for this purpose, the said sanction order must be set aside.
  • The delay in granting the sanction for prosecution. While the CBI requested for sanction was after almost two years. this delay is fatal, the consequence being that the proceedings against the Appellant must be quashed.

Arguments of state:

  1. The DoPT, while granting sanction for prosecution, merely called for and considered the report of the CVC and had, in fact applied its independent mind. He took us through the correspondence between the CBI, CVC, and DoPT to make his point good.
  2. The time period is merely directory and not mandatory.
  3. He would further submit that, as per the above referred decisions of this Court, the consequence of non-grant of sanction within three months would only be deemed sanction, rather than quashing the criminal proceedings.

Observation of court:

  1. The sanctioning authority must bear in mind that public confidence in the maintenance of the Rule of Law, which is fundamental in the administration of justice, is a stake here. By causing delay in considering the request for sanction, the sanctioning authority stultifies judicial scrutiny, thereby vitiating the process of determination of the allegations against the corrupt official.
  2. Delays in prosecuting the corrupt, a culture of impunity inaction is fraught with the risk of making future generations getting accustomed to corruption as a way of life.
  3. The duty to take an early decision inheres in the power vested in the appointing authority to grant or not to grant sanction.
  4. It is mandatory for the sanctioning authority to decide in a time-bound manner, the consequence of non-compliance with the mandatory period must be examined. This is a critical question having no easy answer. In Subramanian Swamy, this Court suggested that Parliament may consider providing deemed sanction if a decision is not taken within the prescribed period. The Appellant herein contends the very opposite that the criminal proceedings must be quashed if the decision is not taken within the prescribed period.
  5. In the first place, non-compliance with a mandatory period cannot and should not automatically lead to the quashing of criminal proceedings because the prosecution of a public servant for corruption has an element of public interest having a direct bearing on the rule of law.
  6. While arriving at this balance, the Court must keep in mind the duty cast on the competent authority to grant sanction within the stipulated period of time. There must be a consequence of dereliction of duty to giving sanction within the time specified. The way forward is to make the appointing authority accountable for the delay in the grant of sanction.
  7. The principle of accountability is considered as a cornerstone of the human rights framework. It is a crucial feature that must govern the relationship between "duty bearers" in authority and "right holders" affected by their actions. Accountability of institutions is also one of the development goals adopted by the United Nations through its one of the six principles of the Citizens Charter Movement.
  8. The consequence of non-compliance with this mandatory requirement shall not be quashing of the criminal proceeding for that very reason.

This case is all about administrative problems that lead to convention of public servant in Prevention of Corruption act. The same was argued by learned counsel, stating the delay by CBI and CVC affects the object of Prevention of Corruption Act.

The leaned state representative argued about independent mind of Departments while handling administrative actions. Also 'time period sanctions' are discretionary not mandatory, which is one of the reasons for application of anti-corruption laws in India. Even the courts believe that delays in prosecuting the corrupt risk of future generation getting accustomed to corruption as a way of life. While discussing about accountability of public servant court also considered Citizen Charter Movement as an important step and implementation needs necessarily in Indian administrative laws.

Even the non-compliance with a mandatory period cannot and should not automatically lead to the quashing of criminal proceedings because the prosecution of a public servant for corruption has an element of public interest having a direct bearing on the rule of law

Case analysis [Balbir Singh vs State of Punjab]

The Supreme Court proceeded to consider the effect of violation of provisions relating to arrest and search contained in the reference to the facts. While disposing of the appeals it noted that though in most of the cases provisions of Section 50 were not attracted the accused were acquitted on the ground of non-compliance of that section. Still the Court refused to interfere with acquittals on the ground that the offences had been committed long time back. The Court summed up its decisions explicitly in its judgment.

As regards illegal arrest the rule that emerges out of the formulations of the Court is that if an arrest has been made in violation of the statutory provisions regulating arrests it is illegal arrest because it is not in accordance with the procedure established by the law that the arrest has been made. Thus it may be violation of Article 21 of the Constitution also. This much seems alright. But what needs to be examined is the consequence stipulated in the decision that on arrest being illegal the trial would vitiate and as a necessary result the person would be entitled to be acquitted of the offence for which he is arrested.

It has been consistently held that illegal arrest would not have any impact on the legality or otherwise of the proceedings3 . This view came to be accepted by the Supreme Court in H.N. Rishbud v. State of Delhi4 and Mobarik Ali Ahmed v. State of Bombay.
Two main reasons have been mentioned by the Supreme Court for its departure from precedents. They are: the provisions in the Act are mandatory and the punishments prescribed in the Act are severe. Both these reasons do not seem to be compelling. Any arrest which violates any statutory safeguard is violative of Article 21 and is illegal. Mandatory provisions governing arrests are not peculiar to the Act but are also contained in the Constitution, Code of Criminal Procedure and other statutes.

The judgment in Balbir Singh cited some cases decided by the Rajasthan and Punjab and Haryana High Courts (none of which dealt with consequences of illegal arrests) to conclude that an arrest or search contemplated under Sections 41 and 42 made under a warrant issued by any other Magistrate or by an officer not empowered or authorised, would per se be illegal and would affect the prosecution case and vitiate the trial.

If the ratio of this decision is extended to its logical conclusion, in every case where an arrest is made in violation of the provisions of the Constitution or CrPC, which provisions have also been held to be mandatory, the person arrested would be relieved of the offence for which he is arrested howsoever grievous it may be and even if there is clinching evidence to prove his guilt.

This conclusion is not per se correct and cannot be accepted without explicit reasons because there is no cogent nexus between the manner of arrest and prejudice in trial. The manner of arrest is totally irrelevant to the process of prosecution and proof of guilt.

Frequently cases are taken to courts in which legality of arrest is challenged. The only accepted remedy asked for as relief is release of the person arrested. In some cases damages are also awarded for unlawfully interfering with the liberty and in cases where arrest is mala fide the arresting officer may be prosecuted. In no case is quashing of the prosecution asked for or ordered.

The Indian law concerns fundamental right. Sometimes these rights become barrier in attaining Justice. Specially the social economic offences where the smart offenders find their ways to hamper the society with legal loopholes. It is important to adopt international standards and techniques even if they are violating rights of individual because by this Parliament can protect Rights of other people.

  • Vijay Raj Mohan vs State [SLP (CRL) NO. 1568 OF 2022]
  • Balbir Singh vs State of Punjab [1994 AIR 1872, 1994 SCC (3) 299]
  • Vijay Madanlal Chaudhary vs UOI [SLP(cri) no 4634 of 2014]

Law Article in India

Ask A Lawyers

You May Like

Legal Question & Answers

Lawyers in India - Search By City

Copyright Filing
Online Copyright Registration


How To File For Mutual Divorce In Delhi


How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

Increased Age For Girls Marriage


It is hoped that the Prohibition of Child Marriage (Amendment) Bill, 2021, which intends to inc...

Facade of Social Media


One may very easily get absorbed in the lives of others as one scrolls through a Facebook news ...

Section 482 CrPc - Quashing Of FIR: Guid...


The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of t...

The Uniform Civil Code (UCC) in India: A...


The Uniform Civil Code (UCC) is a concept that proposes the unification of personal laws across...

Role Of Artificial Intelligence In Legal...


Artificial intelligence (AI) is revolutionizing various sectors of the economy, and the legal i...

Lawyers Registration
Lawyers Membership - Get Clients Online

File caveat In Supreme Court Instantly