TEAM CODE: 136

IN THE SUPREME COURT OF INDIA AT NEW DELHI

IN THE MATTER OF:

SHAILINI MUKHERJEE & ORS. (PETITIONER) v. CBI & ORS. (RESPONDENT)

(CRIMINAL APPEAL NO. 200 OF 2017)

clubbed with

DIBYOJYOTI BASU (PETITIONER) v CBI & ORS. (RESPONDENT)

(CRIMINAL APPEAL NO. 201 OF 2017)

and

SHALINI MUKHERJEE (PETITIONER) V DIRECTORATE OF ENFORCEMENT (RESPONDENT)

(CRIMINAL APPEAL NO. 130 OF 2017)

NLUD INTERNAL MOOT SELECTION 2017

MEMORIAL for PETITIONER

2017
 TABLE OF CONTENTS

LIST OF ABBREVIATIONS III

INDEX OF AUTHORITIES VI

STATEMENT OF JURISDICTION X

STATEMENT OF FACTS XI

ISSUES RAISED XIII

SUMMARY OF ARGUMENTS XIV

ARGUMENTS ADVANCED 1

I. PROCEEDINGS ARISING OUT OF O.C. 240/2015 VIOLATE ARTICLE 20(1) OF THE

CONSTITUTION OF INDIA. 1
A. THE PROCEEDINGS ARISING OUT OF O.C. 240/2015 ARE CRIMINAL IN NATURE. 1
B. SECTION 5 OF THE PMLA IS SUBSTANTIVE IN NATURE. 2
II. THAT SECTION 50 OF PMLA IS CONTRARY TO ARTICLE 20(3) OF THE CONSTITUTION
OF INDIA. 3
A. BREACH OF PROTECTION UNDER ARTICLE 20(3) HAS OCCURRED 3
B. BREACH OF THE RIGHT TO REMAIN SILENT HAS TAKEN PLACE 6
III. THAT THE CENTRAL BUREAU OF INVESTIGATION COMMITTED A GRAVE ERROR OF
LAW BY VIRTUE OF THE SUPPLEMENTARY REPORT SO FILED AGAINST THE PRIVATE

PERSONS 7
A. THAT MS. SHALINI MUKHERJEE IS NOT A PUBLIC SERVANT UNDER THE MEANING OF THE
ACT 8
B. THAT THE SAID INDIVIDUAL IS NOT A PUBLIC SERVANT UNDER THE IPC 1860 9
C. ARGUENDO, THE OFFENCE SO COMMITTED WAS COMMITTED IN DIFFERENT TRANSACTIONS
10
IV. THE SUPPLEMENTARY REPORT FILING ALLEGATIONS UNDER SECTION 13(1)(D)(III) OF
THE PCA SHOULD BE SET ASIDE AS BAD IN LAW. 11
A. MENS REA IS AN ESSENTIAL ELEMENT OF CRIME UNDER SECTION 13(1)(D)(III) 12

I
B. THE SUPPLEMENTARY REPORT IS LIABLE TO BE QUASHED TO ABSENCE OF MENS REA IN THE
CURRENT FACT SITUATION. 13
V. THE COGNIZANCE OF OFFENSES UNDER THE PC ACT AND TRE IPC ARE BAD IN LAW. 14
A. PRIOR SANCTION IS MANDATORY UNDER SECTION 197 CRPC (CRPC) FOR TAKING
COGNIZANCE OF OFFENCES UNDER SECTION 405, 415, 420 READ WITH SECTION 120-B 14
B. SANCTION UNDER SECTION 19 IS A PRE-REQUISITE FOR COGNIZANCE UNDER THE PCA 15
VI. THE SUPPLEMENTARY COMPLAINT FILED WAS ILLEGAL, AND MUST BE SET ASIDE AS
BAD IN LAW 17
A. THAT THERE ARE NO PROCEEDS OF CRIME INVOLVED IN THE CASE 17
B. SUPPLEMENTARY COMPLAINT CANNOT BE FILED POST-COGNIZANCE 19

PRAYER XX

II
 LIST OF ABBREVIATIONS

Abbreviation Term

Acc. Accused

AIR All India Reporter

All. Allahabad

Anr. Another

Art. Article

BOMLR. Bombay Law Reporter

C.C. Criminal Complaint

CA/Crim. App. Criminal Appeal

CBI Central Bureau of Investigation

CLC . Criminal Law Cases

CLR Commonwealth Law Reports

Co. Company

CPC Code of Civil Procedure

Cri LJ. Criminal Law Journal

Crim. Criminal

CrPC Code of Criminal Procedure

Edn. Edition

GLH Gujarat Law Herald

HC High Court

Honble Court Honorable Court

ILR Indian Law Reports

IndCas Indian Cases

IPC Indian Penal Code, 1860

Kar. Karnataka

Ker. L T Kerala Law Times

III
 Ltd. Limited

Mad. Madras

Mah. Maharashtra

Misc. Miscellaneous

MLJ Madras Law Journal

MP Madhya Pradesh

No.s Numbers

Ors. Others

OUP Oxford University Press

PAO Provisional Attachment Order

Para. Paragraph

Pat. Patna

PC Privy Council

PCA Prevention of Corruption Act, 1988

Pg. Page

PML Act, 2002/PMLA The Prevention of Money Laundering Act 2002

Pt. Part

Pvt. Private

QB Queens Bench

RCR Recent Criminal Reports

S. Section

SC Supreme Court

SCC Supreme Court Cases

SCL SEBI and Corporate Laws

SCR. Supreme Court Reports

SLR Service Law Reporter

Supp. Supplementary

the Directorate Directorate of Enforcement

IV
 TLR Times Law Reporter

UoI Union of India

USA United States of America

V. /VS. Versus

W.P. Writ Petition

V
 INDEX OF AUTHORITIES

INDIAN CASES
Abdulla Mohammed Pagarkar v. State (Union Territory of Goa, Daman and Diu) 1980 (3)
SCC 110. ---------------------------------------------------------------------------------------------- 11
Ajit Narain Haksar & Ors. v Assistant Commissioner of Central Excise ----------------------- 20
B. Rama Raju v Union of India ----------------------------------------------------------------------- 19
Bankura Municipality v.LaljiRaja (1953) Cri LJ 1101-1184 --------------------------------------- 2
Bata India Ltd. v Special Director, Enforcement 1998 (60) ECC 278. -------------------------- 13
Bhagwandas Goenka v Union of India AIR 1961 Mad 47 ------------------------------------------ 4
Choragudi Venkatadri v. Emperor (1910) 20 MLJ 220. ------------------------------------------ 10
Dalmia Cement (Bharat) Limited v. Assistant Director, Directorate of Enforcement WP.
No.36838 of 2014. ------------------------------------------------------------------------------------- 7
Empress v. Idu Beg ILR (1881) 3 All 776. ---------------------------------------------------------- 12
G.A. Monterio v. State of Ajmer AIR 1957 SC 13 --------------------------------------------------- 8
Gautam Kundu v Directorate of Enforcement, Government of India---------------------------- 19
General Officer Commanding, Rashtriya Rifles v CBI [2012] 5 SCR 599 [54]---------------- 15
H D Kumaraswamy and Anr v M. Vinod Kumar SLP(Crl) No.949/2012 ----------------------- 15
Harbans Singh SardarLehnasingh v State of Maharashtra AIR 1972 SC 1224. ---------------- 4
Harshad S. Mehta vs Central Bureau of Investigation -------------------------------------------- 15
Harshad S. Mehta vs Central Bureau of Investigation 1992 (24) DRJ 39 ---------------------- 15
Hurdut Roy MotiLall Jute Millsv State of Bihar AIR 1957 Pat 1 ---------------------------------- 2
Kathi Kalu Oghad v. The State of Bombay 1961 AIR 1808. ---------------------------------------- 6
M.P. Sharma v. Satish Chandra 1954 AIR 300 --------------------------------------------------- 3, 5
Major S.K. Kale v. State of Maharashtra (1977) 2 SCC 394 ------------------------------------- 11
Mohammed Ali v. NAS Ansari 1988 Mad LW (Crl) 491. ---------------------------------------- 10
Mohd. Hadi Raja v. State of Bihar &AnrAIR 1998 SC 1945 --------------------------------------- 8
Mohd. Iqbal Ahmed v State of Andhra 1979 AIR 677 --------------------------------------------- 14
Mohd. Iqbal, Ahmad vs State of Andhra Pradesh -------------------------------------------------- 16
Nandini Satpathy v P.L. Dani1978 AIR 1025.-------------------------------------------------- 4, 6, 7
Nanjappa vs State of Karnataka ---------------------------------------------------------------------- 16
Narayanan Nambiar v. State of Kerala 1963 Supp (2) SCR 724 -------------------------------- 12
Nath Misra v. State of U.P. and Ors (1997) 5 SCC 326 ------------------------------------------- 14

VI
National Small Industries Corporation Ltd. v State NCT, Delhi 2008 INDLAW SC 1754 -- 10
Nidhi Kaim vs State of M P and OrsCA 1727 OF 2016 ------------------------------------------- 12
P.V. Narsimha Rao v. State---------------------------------------------------------------------------- 16
Percy RustomjiBasta v State of Maharashtra 1971 AIR 1087 ------------------------------------- 4
Peter Cane, Administrative Law (4thedn, OUP 2004) --------------------------------------------- 13
Prakash Singh Badal v State of Punjab AIR 2007 SC 1274. ------------------------------------- 15
R.S. Joshi, Sales Tax Officer, Gujarat v. Ajit Mills Limited (1977) 4 SCC 98 ----------------- 11
R.S. Nayak v. A.R. Antulay1984 AIR 684 ------------------------------------------------------------- 8
Rajib Ranjan and Ors. v. R. Vijaykumar ------------------------------------------------------------ 15
Rajib Ranjan and Ors. v. R. Vijaykumar(2015) 1 SCC 513 -------------------------------------- 15
Ram Krishan v. State of Delhi 1956 SCR 182 ------------------------------------------------------ 12
RamrajaTevan v. Emperor 32 Cr LJ 30 ------------------------------------------------------------- 11
Sambhoo Nath Misra vs State ------------------------------------------------------------------------- 15
SambhooNathMisra vs State Of U.P. Appeal (Crl) 318 of 1997 --------------------------------- 15
Shamsher Bahadur v. State of Bihar AIR 1956 Pat 404 ------------------------------------------- 10
Shankerlal v. Collector of Central Excise, AIR 1960 Mad 225. ----------------------------------- 5
Shiv Bahadur Singh Rao v State of UP AIR 1953 SC ----------------------------------------------- 3
Shiv Kant Tripathi v State of Uttar Pradesh -------------------------------------------------------- 18
Smt. Selvi & Ors. v. State of Karnataka (2010) 7 SCC ---------------------------------------------- 4
Soma Chakravarthy v. State through CBI 2007 (5) SCC 403 ------------------------------------ 12
State of Andhra Pradesh v. Ganeswara Rao AIR 1960 SC 1850 -------------------------------- 11
State of Bihar v Hurdut Roy MotiLall Jute Mills AIR 1960 SC 378 ------------------------------- 2
State of Bihar v PP Sharma --------------------------------------------------------------------------- 17
State of Karnataka v Arun Kumar Aggarwal ------------------------------------------------------- 18
State of Karnataka v. M.N.Ramdas (2002) 7 SCC 63 ----------------------------------------------- 9
State of Karnataka v. Selvi (2010) 7 SCC ------------------------------------------------------------- 4
State of Maharashtra v. Mayer Hans George AIR 1965 SC 722 -------------------------------- 11
Subramanian Swamy v. Manmohan Singh and Anr ------------------------------------------------ 16
Subramanian Swamy v. Manmohan Singh and Anr (2012) 3 SCC 64--------------------------- 14
Sunil Batra v Delhi Administration -------------------------------------------------------------- 16, 17
Tarlochan Dev Sharma vs State of PunjabCA 1889 of 2000 ------------------------------------- 13
The Joint Registrar/Administrator v P. Siva Kumar W.A. No. 1801 of 2013 -------------------- 9
The Queen v The Inhabitants of St. Mary, Whitechapel (1848) 12 QB 120 ---------------------- 3
Union of India v Hassan Ali Khan ------------------------------------------------------------------- 19

VII
Vivek Gupta v. Central Bureau of Investigation 2004 SCC (Cri) 51 ---------------------------- 10
Y.S. Jagan Mohan Reddy v Central Bureau of Investigation ------------------------------------- 18
Yusofalli Mulla Noorbhoy v The King --------------------------------------------------------------- 17
INDIAN LEGISLATION
CrPC 1860 -------------------------------------------------------------------------------------- 3, 6, 8, 14
IPC 1860 ---------------------------------------------------------------------------------------------- 9, 10
PCA 1988 ------------------------------------------------------------------------------ 7, 8, 9, 10, 12, 13
The Constitution of India ------------------------------------------------------------------------------ 13
The PMLA ------------------------------------------------------------------------------------------------- 2
BOOKS
H. L. A Hart and John Gardner, Punishment and Responsibility (1stedn, Oxford University
Press 2009). ------------------------------------------------------------------------------------------- 12
Leonard W. Levy, 'The Right Against Self-Incrimination: History and Judicial History'
(1969) 84 Political Science Quarterly. -------------------------------------------------------------- 3
The Code of Criminal Procedure, Vol 2 (10th edn, LexisNexis 2012) ------------------------- 11
Wayne A. Logan, The Ex Post Facto Clause and the Jurisprudence of Punishment, 35 Am.
Crim. L. Rev. 1262 (1998) --------------------------------------------------------------------------- 2
William &Samuel ,Craies on Statute Law, (3rd edn, Sweet & Maxwell, 1971) ----------------- 2
FOREIGN CASES
Calder v Bull 3 U.S. 386 (1798). ----------------------------------------------------------------------- 1
CrPC 1973 ----------------------------------------------------------------------------------------------- 19
Miranda v. Arizona, 384 U.S. 436 (1966). --------------------------------------------------------- 5, 6
Nandini Satpathy v. P.L. Dani1978 AIR 1025-------------------------------------------------------- 5
Olmstead v. United States 66 ALR 376 (1928). ------------------------------------------------------ 7
PMLA 2002 --------------------------------------------------------------------------------------------- 19
The PMLA 2002 ------------------------------------------------------------------------------------- 17, 18
Wong Kam-ming v. R, [1979] 1 All ER 939-946. ---------------------------------------------------- 5
ARTICLES
Bryan A. Grander, Blacks Legal Dictionary (9thedn, Thomson Reuters) ----------------------- 2
The Oxford Handbook of the Indian Constitution (1st edn OUP 2016) --------------------------- 1
GOVERNMENT DOCUMENTS
50th Law Commission of India Report, Definition of Public Servant in the IPC, 8 (1972), - 10
Frequently Asked Questions on The PMLA, 2002, Enforcement Directorate, Government of
India --------------------------------------------------------------------------------------------------- 18

VIII
Ministry of Corporate Affair, Unified Manual of the MCA ------------------------------------ 15

IX
 STATEMENT OF JURISDICTION

THE CRIMINAL APPELLATE JURISDICTION OF THE SUPREME COURT IS INVOKED UNDER

ARTICLE 136 OF THE CONSTITUTION OF INDIA BY FILING CRIMINAL APPEAL NO. 200 OF 2017
AND CRIMINAL APPEAL NO. 201 OF 2017 BY SHAILINI MUKHERJEE AND ORS, AND DIBYJYOTI
BASU RESPECTIVELY.

THE CIVIL APPELLATE JURISDICTION OF THE SUPREME COURT IS INVOKED UNDER ARTICLE 32
OF THE CONSTITUTION OF INDIA BY FILING A WRIT PETITION (CIVIL) NO. 130 OF 2017

THE PARTIES SHALL ACCEPT ANY JUDGMENT OF THE COURT AS FINAL AND BINDING UPON THEM
AND SHALL EXECUTE IT IN ITS ENTIRETY AND IN GOOD FAITH.

X
 STATEMENT OF FACTS

M/S Gladiator Pvt. Ltd. owned by Ms. Shalini Mukherjee became the first
2000-2004 private company to be awarded the license for hydel & air productionas part of
the Looking Forward Policy of the Govt. of West Bengal.
Gladiator received a formal communication from M/S Energize India Ltd. - a
subsidiary of M/S Energize USA wherein all assets & shareholding would be
Mid 2004 sold to Energize India without selling the company itself. Gladiator had not
begun operations and only had a skeletal framework for a plant at a site
&fourteen licenses.
Energize India officially became 100% shareholder in Gladiator after
31.12.2004- meetings between State Govt. officials, managements of Gladiator &Energize
01.02.2005 USA took place. Shalini left West Bengal and bought a bungalow in New
Friends Colony (New Delhi) registered in her name.
Shaliniwas remunerated for her services even as Gladiator barely managed
any production throughout the decade. All projects hit one snag after another
with most land lying unused. New government began reviewing policies of
2004-2014 previous government. Several were prosecuted under the PC Act by the CBI in
the state. Govt. of West Bengal wanted something to stick against Mr.
Dibyojyoti Basu working as Secretary- Ministry of Tourism because his
decision to stop an entourage with the kin of the Chief Minister had irked CM.
Enforcement Directorate passed a Provisional Attachment Orderunder 5
PMLA as against Shalinis bungalow, stating reasons to believe that it was a
01.11.2015
proceeds of crime. A copy of said reasons was forwarded to the Adjudicating
Authority.
Shalini was asked for a statement explaining the source of funds behind her
bungalow, her relations with Dibyojyoti and officials at private companies.She
10.11.2015 made a statement under objection after Dy. Director informed her about the
provisions of 50 PMLA making her bound to state the truth, when she
objected citing Art.20 (3).
ED filed an Original Complaint No. 240/2015 seeking confirmation of PAO
01.12.2015 before Kolkata Sessions Court, where CBI sought more time to complete
further investigation into allegations against the public servants.

XI
 AA confirmed attachment directing ED against taking possession within three
months to enable Shalini to prefer an Appealand also preferred Writ Petition
01.02.2016 before Delhi High Courtrelying on the Mahanivesh judgment by Ld. Single
Judge of Delhi High Court which was challenged in an Appeal before a
Division Bench.
ED filed complaint before Special Court in Delhi against all private entities for
offences punishable under 3 & 4 PMLA. Special Court did not take
28.02.2016
cognizance of offences because ED case against Shalini was pending, and
therefore proceedings adjourned.
CBI filed Supplementary Report under 173(8) Cr.P.C. against Dibyojyoti &
two other public servants stating that the decision taken by Dibyojyoti was
without any public interest and therefore all accused persons were part of a
01.03.2016
conspiracy to commit corruption. Separate allegation under 120B read with
406 IPC against Shalini, Energize India and Energize USA for causing a
criminal breach of trust was made.
Special Court took cognizance of all offences and next date for hearing was
01.04.2016 fixed to ensure presence of foreign parties and CBI was directed to ensure the
process well in advance.
Special Court took up PMLA proceedings, where ED sought an adjournment
to file a Supplementary Complaint with regards to Dibyojyoti.ED filed a
May-July
Supplementary Complaint naming him as co-accused, and the Court directed
2016
proceedings in Kolkata to be transferred to Delhi as per law and cognizance
was taken under 3 and 4 PMLA.
Division Bench reversed Mahanivesh case in appeal and thereafter Shalini
withdrew her writ petition, and instead filed a SLP under Art.136 and a
separate Writ Petition under Art.32 before the Supreme Court along with other
Late 2016
private persons. Dibyojyoti preferred a separate challenge but the Supreme
Court clubbed these petitions together and posted the question of law before an
unprecedented 15 judge bench.

XII
 ISSUES RAISED

-I-

WHETHER THE PROCEEDINGS ARISING OUT OF O.C. 240/2015 ARE CONTRARY TO ARTICLE 20(1)
OFTHE CONSTITUTION OF INDIA.

-II-

WHETHER SECTION 50 OF THE PMLA IS CONTRARY TO ARTICLE 20(3) OF THE CONSTITUTION

OF INDIA.

-III-

WHETHER THE SUPPLEMENTARY REPORT FILED BY THE CBI, MAKING ALLEGATIONS UNDER
SECTIONS 406 IPC, AND THOSE OF SECTION 120-B READ WITH 13(1)(D) PC ACT AGAINST THE
PRIVATE PERSONS, MUST BE SET ASIDE AS BAD IN LAW.

-IV-

WHETHER SUPPLEMENTARY REPORT FILED BY THE CBI, MAKING ALLEGATIONS UNDER

SECTION 13(1)(D)(III) PC ACT IN ABSENCE OF ANY MENS REA, MUST BE SET ASIDE AS BAD IN
LAW;

-V-

WHETHER COGNIZANCE OF OFFENCES COULD NOT BE TAKEN BE TAKEN IN THE ABSENCE OF

SANCTION UNDER SECTION 19 PC ACT AND SECTION 197 CR.P.C.;

-VI-

WHETHER THE SUPPLEMENTARY COMPLAINT FILED BEFORE THE LD. SPECIAL COURT, DELHI,
WAS ILLEGAL AND MUST BE SET ASIDE AS BAD IN LAW.

XIII
 SUMMARY OF ARGUMENTS

1. O.C. 240/2015 is in violation of Article 20(1)

The Original Complaint filed by the Enforcement Directorate is in contravention of Article

20(1) due to the following reasons. 1) Proceedings under Section 5 are criminal in nature and
are thus hit by Article 20(1) 2) Section 5 is a substantive law which imposes a forfeiture as a
penalty and is thus cannot be retrospective in nature. 3) The decision in Mahanivesh must not
be followed

2. Section 50 of the PMLA is in contravention of Article 20(3)

It is submitted before the Honourable Court that the CBI and Directorate of Enforcement
have, by virtue of their actions under Section 50 of PMLA violated the Article 20 (3) of the
Constitution. The act of pressurising Ms. Shalini Mukherjee to state the truth during the
course of interrogation is a clear violation of the right to stay silent. The arguments to
substantiate the same are three-pronged. Firstly, that the Petitioner stood in the character of
an accused. Secondly, that Ms. Shalini was compelled to be a witness against herself. And
thirdly, that such questioning about the case amounts to self-incrimination since any such
knowledge is part of Ms. Shalinis personal knowledge.

3. The Supplementary Report filed under Section 173(8) against private persons is bad
in law and must be set aside
It has been submitted that CBI has committed a grave error of law by filing a Supplementary
Report against private persons because the Honble Court has clearly established parameters
to understand what the qualification for a public servant entails within the Act. The
arguments for the same are three-fold. It has been argued that Ms. Shalini Mukherjee is not a
public servant as per the definition under the PC Act or under the IPC, as the said individual
is neither on the payroll nor in service of the government, and has not been entrusted with any
public duty.

4. The Supplementary Report alleging offences under Section 13(1)(d)(iii) in the

absence of mens rea must be set aside as bad in law

The Supplementary Report is liable to be set aside in the absence of mens rea as bad in law.
Section 13(1)(d)(iii) requires mens rea as an essential element as evidence from 1) An
interpretation of Section 13 2) Mens rea as a uniform standard for judgment of quantum of

XIV
criminality 3) An exclusion of mens rea would lead to frustration of decision making process
in public office.

5. The Cognizance of offences in the absence of sanction under Section 19 of the

CrPC is bad in law and must be set aside

The cognizance of offences under Section 13 of the Prevention of Corruption Act requires
sanctions under Section 19 of the PCA and Section 197 of the CrPC. The proceedings must
be vitiated under Section 13(3) due to failure of justice and lack of prima facie non-existence
of sanction renders the Special Judge incompetent to try the case.

6. Supplementary Complaint filed by the Enforcement Directorate is illegal and must

be set aside as bad in law

It is submitted that the Supplementary Complaint so filed is illegal and must be set aside
as bad in law. The arguments to substantiate upon the same are two-pronged. Firstly, that
there are no proceeds of crime involved in the particular case which is furthered upon
with the fact that no predicate offence has been proven and that there is no deliberate
design to obtain any gains for the same. Secondly, that the supplementary complaint was
filed at the post-cognizance stage of the proceedings and therefore is liable to be set aside
in law

XV
 ARGUMENTS ADVANCED

I. PROCEEDINGS ARISING OUT OF O.C. 240/2015 VIOLATE ARTICLE 20(1) OF THE

CONSTITUTION OF INDIA.
1. Rajan Kapoor filed the O.C. against Shalini before the Adjudicating Authority, on
01/12/2015. The Confirmation of the Provisional Attachment Order (PAO) was sought
on 1/11/2015 seeking attachment of property 20 days before filing the complaint.

2. It is submitted by that the Petitioners are victims of mala fide prosecution in the given
case as the new government in power looked to score political brownie points1 and the
CBI was asked to look into the matter2 by the Chief Minister who was an old friend.
The Provisional Attachment Order issued due to the existence of reasons to believe3 that
the property may be disposed off by Shalini, but such reasons have not been brought on
record.

3. The Petitioner submits that the proceedings pertaining to attachment and confiscation
are in violation of Article 20(1) of The Indian Constitution. All fact circumstances
regarding transactions related to the property were in 2005 while the scheduled offences
were added to the act in 2009.4 It is thus submitted by the petitioner that (A) The
proceedings arising out of O.C. 240/2015 are criminal proceedings. (B) Section 5 of the
Prevention of Money Laundering Act, 2005 (PMLA) is substantive in nature.

A. THE PROCEEDINGS ARISING OUT OF O.C. 240/2015 ARE CRIMINAL IN NATURE.

4. Article 20 provides every individual with a two-pronged protection; the first part is
with regard to conviction for an act not an offence at the time of commission of the
offence and the second part provides protection from punishment higher than greater
than, that which could have been levied when the offence was committed.5 Thus, Article
20(1) creates a protection against ex post facto laws.6 A precondition to claiming this

1
Case-Study, para 7.
2
Ibid, para 13.
3
Ibid, para 14.
4
The PMLA (Amendment) 2009.
5
The Constitution of India 1950, art 20(1); Aparna Chandra and MrinalSarish, 'Criminal Law and Constitution'
in, The Oxford Handbook of the Indian Constitution (1st edn OUP 2016) 797.
6
Calder v Bull 3 U.S. 386 (1798).

1|Page
 protection is that the law in question must be penal in nature.7 A penal law of such nature
would be violative of a core tenant of criminal law, nullapoena sine lege i.e., no
punishment without law.8It is thus submitted by the petitioners that is that proceedings
under Section 5 are rendered criminal in nature due to the penal nature of the punishment
and thus cannot be retrospective in nature. Section 5 mandates an erosional attachment of
an individuals property and also empowers the Enforcement Directorate to eventually
confiscate the property. 9Thus the punishment in this case amounts to severe penal
consequences.

5. The IPC, 1860 (IPC) prescribes forfeiture of property under Section 53.10 The
provision provided for retrospective attachment of the property and the Patna High Court
in the given case proceeded to hold that forfeiture amounted to a penalty under Article
20(1).11 The Supreme Court also proceeded to dismiss the appeal in the given case.12

6. It is a broadly settled provision of law that a consequence of forfeiture is considered

to mean a penalty as a punishment for the commission of an offence.13 Court also
proceeded to rely on dictionary meanings of the word forfeiture to interpret it as a
transgression or a punishment for an offence.14

7. A review of doctrinal authorities also shows us that forfeiture of property by a statue

prima facie renders a procedure criminal.15 As defended by Blacks Legal Dictionary,
forfeiture as a penalty is imposed as a punishment for breaking laws.16

B. SECTION 5 OF THE PMLA IS SUBSTANTIVE IN NATURE.

8. It is a settled position of law that Article 20(1) is limited solely to substantive law and
in no case extends to procedural laws.17 Section 5 is not merely a creation of a new

7
Chandra and Satish (n 5) 769
8
Wayne A. Logan, The Ex Post Facto Clause and the Jurisprudence of Punishment, 35 Am. Crim. L. Rev. 1262
(1998)
9
The PMLA, s 5.
10
IPC, s 53.
11
Hurdut Roy MotiLall Jute Millsv State of Bihar AIR 1957 Pat 1 [20].
12
State of Bihar v Hurdut Roy MotiLall Jute Mills AIR 1960 SC 378.
13
R.S. Joshi vAjit Mills Ltd. (1977) 4 SCC 98-143; United States v Bajakajian, 524 U.S. 321 (1998).
14
Bankura Municipality v.LaljiRaja (1953) Cri LJ 1101-1184.
15
William &Samuel ,Craies on Statute Law, (3rd edn, Sweet & Maxwell, 1971) 349.
16
Bryan A. Grander, Blacks Legal Dictionary (9thedn, Thomson Reuters) 2041.

2|Page
 procedure but also has substantive effects on the rights of the parties, and the same has
been upheld in Mahanivesh.

9. It is a basic tenant of law that no proceedings can be initiated in respect of offences

which have committed prior to the Act coming into force. A statute cannot, by
implication, be considered a retrospective statute by reasons of a certain requisite being
drawn from a time antecedents to it being passes.18 This is especially important in the
context of Section 5 as it allows for attachment of property without filing of complaint,
while similar provisions in other statues require judicial mind to be applied before orders
in violation of a persons liberty can be passed.19

10. Thus it is submitted that by reason of the requirements under Article 20(1) being
fulfilled the proceedings under O.C. 240/2015 are liable to be quashed as application of
ex post fact laws to grave issues such as attachment of property is premature deprivation
of liberty.

II. THAT SECTION 50 OF PMLA IS CONTRARY TO ARTICLE 20(3) OF THE CONSTITUTION OF

INDIA.

11. Origins of the right against self-incrimination lie in the concept of the due process of
law in Magna Carta.20 The right is a constitutional guarantee granted to every accused
person and widely interpreted by the Honble Court in numerous landmark judgments.21
The arguments to substantiate the same are two-pronged. A. that the formal accusation
and a compulsion to be a witness against oneself clearly constitutes a breach of Article
20(3); B. the actions of Dy. Director pressurising Ms. Shalini to state the truth is a
violation of the right to stay silent.

A. BREACH OF PROTECTION UNDER ARTICLE 20(3) HAS OCCURRED

17
Shiv Bahadur Singh Rao v State of UP AIR 1953 SC 394-437.
18
The Queen v The Inhabitants of St. Mary, Whitechapel (1848) 12 QB 120.
19
CrPC 1860, s 451.
20
Leonard W. Levy, 'The Right Against Self-Incrimination: History and Judicial History' (1969) 84 Political
Science Quarterly.
21
M.P. Sharma v. Satish Chandra 1954 AIR 300.

3|Page
 12. The constitutional guarantee against any form of testimonial compulsion is said to
have been breached when the following essentials have been met:

1. That the person stood in the character of an accused,

2. Such person has been compelled,
3. To be a witness, and
4. Any statement so obtained has been used to incriminate the person.

1. That the said person stood in the character of an accused

13. At different times and on numerous instances, the Honourable Court has held that the
protection of Article 20(3) clearly applies when the person making a particular statement
stands in the character of an accused.22 The Court has also laid down that such protection
also applies to preliminary inquiry that takes place even before an investigation has
begun.23

14. To stand in the character of an accused, it is essential that a formal accusation has
taken place against the said person.24 A formal complaint was filed before the Magistrate
under Section 173(2) CrPC. a month before the questioning took place.25 Following the
complaint, the ED passed a PAO with respect to a bungalow owned by Ms. Shalini
Mukherjee and issued her summons to appear before the authorities.26

15. Issuance of summons along with lodging of a formal complaint before the Magistrate
and inquiry by the Central Bureau of Investigation, clearly corroborate the submission
that Ms. Shalini Mukherjee stood in the character of an accused during the questioning.

2. That the said person was compelled

22
Percy RustomjiBasta v State of Maharashtra 1971 AIR 1087; Harbans Singh SardarLehnasingh v State of
Maharashtra AIR 1972 SC 1224.
23
Nandini Satpathy v P.L. Dani1978 AIR 1025.
24
Bhagwandas Goenka v Union of India AIR 1961 Mad 47.
25
Case-Study, para 12.
26
Ibid para 14.

4|Page
 16. In previous instances, the Honble Court has established that any evidence put forth
cannot be admitted if the same has been obtained through any kind of compulsion.27 It is
submitted before the Court that the testimonial obtained from Ms. Shalini Mukherjee was
ensured by compelling her to do so, despite clear objections from her side.28

17. It is imperative that the Court insist that before a statement is admitted, it must be
proven beyond reasonable doubt that such statement was not obtained in a manner that
was voluntary in every sense.29 The Court has considered various landmark cases of
American and British jurisprudence as precedents on the issue.30

18. The Court advocated for an expansive interpretation of the term compelled to
include any statement produced by not only physical threats or violence, but also mental
torture and environment coercion.31 In this case, the official is a person in authority and
any insistence on answering a question is a form of pressure on the person.32

19. The questioning happened under an environment of coercion, wherein a statement that
had the prospect of exposing her to guilt in some accusation was made which she was
bound to get a protection from. The moment she was asked to give a statement because
she was bound to speak the truth as per the official, the option of not participating in a
positive volition act was withdrawn.33

3. That the said person was a witness

20. The Court has clearly expressed that the term to be a witness under Article 20(3)
essentially refers to a person furnishing evidence.34 The term to be a witness is to be
understood as differently from appearing as a witness, as the protection afforded is not
merely with respect to the person in the courtroom.35

27
Smt. Selvi & Ors. v. State of Karnataka (2010) 7 SCC [88].
28
Case-Study, para 15.
29
Wong Kam-ming v. R, [1979] 1 All ER 939-946.
30
(n 27) 87
31
Miranda v. Arizona, 384 U.S. 436 (1966).
32
Nandini Satpathy v. P.L. Dani1978 AIR 1025.
33
Shankerlal v. Collector of Central Excise, AIR 1960 Mad 225.
34
M.P. Sharma v. Satish Chandra 1954 AIR 300.
35
Ibid

5|Page
 21. At the same time, the term to be a witness involves imparting knowledge by mouth
or in writing, which is in respect to the facts of the case by a person who has personal
knowledge of the same.36

22. It is submitted that any statement to be given in relation to source of funds or

individuals37 is personal knowledge of Ms. Shalini Mukherjee and therefore not
admissible in Court. Any information on the same would require the usage of mind and
therefore Ms. Shalini Mukherjees statement is testimonial in nature and must be
protected under Article 20(3).

4. That the said person was a witness against herself

23. The Court on numerous instances has stated that the testimonial statements by a
person that inflict self-incriminatory harm would qualify as being witness against
oneself.38 Any statement must itself have the tendency of incriminating the accused
against an offence, or mere potential of linking the events to an extent that it makes the
case probable. 39

24. It is submitted before the Court that the questioning over the source of funds behind
the house and relations with Mr. Dibyojyoti Basu and Energise India and Energise USA40
have the potential to establish a chain of events that would incriminate the accused.

B. BREACH OF THE RIGHT TO REMAIN SILENT HAS TAKEN PLACE

25. Article 20(3) grants a protection against self-incrimination, along with the CrPC, 1973
(CrPC) that guarantees to every accused a right to remain silent with respect to questions,
answers to which incriminate the said person.41

26. Landmark judgments pertaining to American jurisprudence have emphasised on the

need for constitutional protection that the said Right requires42 and the various facets that

36
Kathi Kalu Oghad v. The State of Bombay 1961 AIR 1808.
37
Case-Study, para 15.
38
Kathi Kalu Oghad v. The State of Bombay 1961 AIR 1808.
39
Nandini Satpathy v. P.L. Dani1978 AIR 1025.
40
Case-Study, para 15.
41
CrPC 1973, s 161(2).
42
Miranda v. Arizona 384 US 436 (1966).

6|Page
 exist within it.43 Honble Court has also recognised the Right within the CrPC as an arm
of such protection by the Constitution as well44.

27. The actions of the Dy. Director amounts to a violation of the Right. By asking Ms.
Shalini Mukherjee to give a statement despite her clear objections45, there is pressure on
the said person to testify before the authorities. The Right protects the accused from
partaking in any such activity that would make up a positive act of volition. The instance
at which Ms. Shalini Mukherjee is asked to make a statement despite the objections, the
option of not partaking in a positive act of volition is withdrawn.

28. Leading important cases of American jurisprudence46 have emphasised on the fact
that the guarantee under Article 20(3) must be interpreted in the manner that the
adversarial system of criminal system remains protected.47 Since the actions of the
authorities do not allow for the extension of the Right in its full capacity, there is a clear
violation that has taken place.

III. THAT THE CENTRAL BUREAU OF INVESTIGATION COMMITTED A GRAVE ERROR OF LAW
BY VIRTUE OF THE SUPPLEMENTARY REPORT SO FILED AGAINST THE PRIVATE PERSONS

29. The term public servant has been given a wide definition as per the PCA, 1988
(PCA)48 It is submitted that the Central Bureau of Investigation by virtue of its actions
has clearly failed to uphold and respect the existing parameters that the Honble Court has
established in past.

30. To substantiate on the same, the arguments are three-fold. Firstly, that Ms. Shalini
Mukherjee is not a public servant under the meaning of the PCA [PC Act] (A), and
therefore Secondly, that the offence of criminal conspiracy cannot be read along with
Section 13 of the PC Act (B). Thirdly, that it cannot be stated that an offence of criminal
conspiracy under Section 120B of the IPC has taken place (C).

43
Dalmia Cement (Bharat) Limited v. Assistant Director, Directorate of Enforcement WP. No.36838 of 2014.
44
Nandini Satpathy v. P.L. Danii1978 AIR 1025.
45
Case-Study, para 15.
46
Olmstead v. United States 66 ALR 376 (1928).
47
Nandini Satpathy v. P.L. Dani1978 AIR 1025.
48
PCA 1988, s 2 (c).

7|Page
 A. THAT MS. SHALINI MUKHERJEE IS NOT A PUBLIC SERVANT UNDER THE MEANING

OF THE ACT

31. The said individual is not a public servant since she does not qualify for the same
under the definition so given under the Act.49Therefore, the said person is not governed
by or can be tried under the Act.

32. The Honble Court has previously clarified the meaning of Public Servant under
Section 21 of the IPC [IPC] in the landmark judgment50, emphasizing on the purposes of
the application of Section 19751 of the CrPC, precisely similar to the proceedings of the
particular case. Further, Honble Court held that only officials, entities and personnel that
qualify as State within Article 12 of the Constitution of India are to be accorded the
status of public servants, and entrusted with the responsibilities and liabilities of the
same. In the particular case, it is unreasonable to expect the said person, an executive at a
private company52 to carry the same liabilities and responsibilities as a public servant.

33. The Honble Court while addressing the question whether the duty of a chaser in a
Railways carriage workshop was performing a public duty53 laid down two important
tests to establish whether a person qualifies as a public servant. First, whether the
person is in service of on the payroll of the Government (1.). Second, whether the person
is entrusted with the performance of any public duty (2.).

1. Ms. Shalini Mukherjee was not in the service or the payroll of the Government
34. The classification of a public servant essentially falls under three distinct categories:
(a) in the service of the Government, (b)on the payroll of the Government, and (c)
remunerated by fees or commission for the performance of any public duty by the
Government.

35. The Honble Court has laid down a test regarding the same, wherein it was stated that
such service necessarily involves manifestation of a master-servant or command-
obedience relationship.54 In the particular case, Ms. Shalini Mukherjee was not involved

49
PCA 1988, s 2(c)(i)-(xii)
50
Mohd. Hadi Raja v. State of Bihar &AnrAIR 1998 SC 1945 [6].
51
The CrPC 1973, s 197.
52
Case-Study, para 1.
53
G.A. Monterio v. State of Ajmer AIR 1957 SC 13.
54
R.S. Nayak v. A.R. Antulay1984 AIR 684.

8|Page
 at any point in a similar master-servant or command-obedience relationship with the
Government. The independence and autonomy over her actions stayed intact, and
therefore does not qualify her to be in such a role.

2. Ms. Shalini Mukherjee was not entrusted with a public duty

36. Any charge under the PC Act must establish first whether the subject of prosecution is
entrusted with the performance of a public duty or not.55In the particular case, clearly the
Petitioners do not fall under this stipulated ambit of being an entrusted with the
performance of a public duty since the Court ruled that it is required that an established
financial nexus with the Government exists.56

37. It is submitted that the Petitioners, being executives of private companies, do not
receive any remuneration, pay, service or any kind of commission from the Government.

B. THAT THE SAID INDIVIDUAL IS NOT A PUBLIC SERVANT UNDER THE IPC 1860
38. The State has committed a grave error in law by virtue of reading penal offences with
offences under PC Act57 as a part of Supplementary Report so filed.58

39. The definition of public servants under Section 21 of IPC is distinct from the one
stated under the PC Act.59 The Court concluded that the said definition under the PC Act
applies only to entities that have been formally entrusted with a public duty that may take
place by virtue of a license under a statute or any other formal instrumentality.60

40. Therefore, the question of any definition under the PC Act being applicable does not
arise. If at all, the State will be burdened to prove that Ms. Shalini Mukherjee was a
public servant under Section 21 of IPC.

41. However, the concerned provision in the IPC61 only brings under the ambit those
individuals whose official duty is to expend any property on the behalf of the

55
G.A.Monterio v. State of Ajmer AIR 1957 SC 13; State of Ajmer v. ShivajiLal AIR 1959 SC 847.
56
Ramesh Balkrishna Kulkarni v. State of Maharashtra (1985) 3 SCC 606
57
The PCA 1988, s 13(1)(d).
58
Case-Study, para 21.
59
State of Karnataka v. M.N.Ramdas (2002) 7 SCC 639.
60
The Joint Registrar/Administrator v P. Siva Kumar W.A. No. 1801 of 2013.
61
IPC 1860, s 21(ix).

9|Page
 Government.62 Ms. Shalini Mukherjee only represented the interests of Energize and
Gladiator and not the Government.

42. It is submitted that the said individual and the aforementioned companies are private
entities and do not in any way fall under the definition of public servants within the
meaning of Section 2163of the IPC. Moreover, the allegations against Ms. Mukherjee do
not at any point state that it was the said person who was specifically entrusted with some
document or property, which she should be duty bound to account for.64

43. Lastly, the Honble Court has stated the proceedings are liable to be quashed when
allegations suffer from extreme vagueness.65 Therefore, the offence cannot be proved
against her and the proceedings should be quashed.

C. ARGUENDO, THE OFFENCE SO COMMITTED WAS COMMITTED IN DIFFERENT

TRANSACTIONS

44. Honble Court has stated that the individuals other than public servants can be tried
under the PC Act as long as the said transaction is the same within the meaning of the
Code.66 It is submitted that the alleged transactions wherein the offences are said to have
occurred are different and can thereby not be tried together.67

45. There existed two different transactions, by virtue of which the proceedings now
remain vitiated. It is established that such finding is a matter of fact and not law.68 There
are two important test that have been laid down to determine the same69 that necessarily
need to be linked and satisfied to prove the existence of the same transaction. It is argued
that first, there is no Community of purpose(i)and secondly, no continuity in action (ii).

1. That there is no Community of Purpose

62
National Small Industries Corporation Ltd. v State NCT, Delhi 2008 INDLAW SC 1754
63
IPC 1860, s 21.
64
50th Law Commission of India Report, Definition of Public Servant in the IPC, 8 (1972), available at
http://lawcommissionofindia.nic.in/1-50/report50.pdf last seen on 04.05.2017 [05:34AM].
65
Mohammed Ali v. NAS Ansari 1988 Mad LW (Crl) 491.
66
Vivek Gupta v. Central Bureau of Investigation 2004 SCC (Cri) 51;TheCrPC1973, s 114.
67
PCA 1988, s 3.
68
Choragudi Venkatadri v. Emperor (1910) 20 MLJ 220.
69
Shamsher Bahadur v. State of Bihar AIR 1956 Pat 404.

10 | P a g e
 46. The necessary community of purpose does not exist in the particular case. While it
was Ms. Shalini Mukherjees purpose to generate profits for her family business by
expanding into hydel energy, it was Mr. Dibyojyoti Basus purpose to identify ways to
maximize cleaner fuel production as per the Policy of the Government.70

47. Therefore, it is humbly submitted that the actions of both Petitioners were entirely
different and motivated by different purposes and cannot be said to have construed as acts
within the same transaction under Cr.P.C.71

2. There is no Continuity of Action

48. The term continuity of action suggests that the actions of the said individuals flow
from the wrongful act that was so committed initially.72 However, it is submitted that
there exists a clear lack of connection between the acts of Mr. Dibyojyoti Basu and Ms.
Shalini Mukherjee.

49. Therefore, it is clear that no single transaction was performed by the two individuals
in concert with each other. In addition, there is no initial wrongful act that was so
committed.73

IV. THE SUPPLEMENTARY REPORT FILING ALLEGATIONS UNDER SECTION 13(1)(D)(III) OF

THE PCA SHOULD BE SET ASIDE AS BAD IN LAW.

50. Indian Courts have always favored construing penal law statutes as needing a
requirement of mens rea.74 The notions of actusreus and mens rea constitute basic tenants
of criminal law and can be dispensed with only under exceptional circumstances.75 Thus
it is submitted by the petitioner that A.Mens rea is an essential element of crime under
Section 13(1)(d)(iii). B.The Supplementary Report is liable to be quashed due to the
absence of mens rea in the given fact circumstances.

70
Case-Study, para 10.
71
State of Andhra Pradesh v. Ganeswara Rao AIR 1960 SC 1850.
72
RamrajaTevan v. Emperor 32 Cr LJ 30.
73
SC Sarkar, The Code of Criminal Procedure, Vol 2 (10th edn, LexisNexis 2012) 1174.
74
State of Maharashtra v. Mayer Hans George AIR 1965 SC 722; R.S. Joshi, Sales Tax Officer, Gujarat v. Ajit
Mills Limited (1977) 4 SCC 98.
75
Major S.K. Kale v. State of Maharashtra (1977) 2 SCC 394; Abdulla Mohammed Pagarkar v. State (Union
Territory of Goa, Daman and Diu) 1980 (3) SCC 110.

11 | P a g e
 A. MENS REA IS AN ESSENTIAL ELEMENT OF CRIME UNDER SECTION 13(1)(D)(III)
51. The submissions of the Petitioner in this regard is threefold (1) The court would lack
an appropriate standard to judge criminality if mens rea is excluded from 13(1)(d)(iii) (2)
An exclusion of mens rea would frustrate functioning of public offices. (3) The PCAhas
been consistently interpreted as requiring mens rea as an essential element.

1. The PCA has been consistently interpreted to require mens re as an essential

element.
Despite qualifying adverbs such as corrupt or illegal being absent in the words of the
provision76, mens rea is an integral element of the spirit of the act and the courts have
constantly interpreted provisions of the act to require mens rea as an element.77 The preamble
to the act is indicative of the fact that the purpose of the Act was more effective prevention
of corruption and bribery.78 Further the act also accords a greater degree of protection to
public servants , in terms of pre-conditions to prosecution, to prevent frivolous complaints
and harassment.79 The element of mens rea is also an integral aspect of the entire provision as
evident from the use of words such as habitual acceptance, dishonestly, abuse of
position as a public servant80 etc. Thus it submitted on behalf of the petitioners that the
ingredients of Section 13(1)(d)(iii) obtaining and without public interest imply the
requirement of criminal intent in the light of the objective and the spirit of the act.

2. Mens rea is essential to form an appropriate standard to judge the criminality of

the accused.
Acts having the same consequences are differentiated on the touchstone of varying intentions
and different levels of culpability.81 Varying degrees of culpability in cases of murder are
distinguished on the basis of the intention behind the act and the degree of criminality of the
act lies in the intention behind the actions.82 This distinguishing factor is essential in
mitigating, quantum of blame and punishment.83 This is further made relevant when the

76
The PCA, s 13(1)(d)(iii).
77
Narayanan Nambiar v. State of Kerala 1963 Supp (2) SCR 724 [9]; Soma Chakravarthy v. State through CBI
2007 (5) SCC 403; Ram Krishan v. State of Delhi 1956 SCR 182;
78
The PCA 1988, preamble.
79
Ibid s 19.
80
Ibid s 13(1).
81
Nidhi Kaim vs State of M P and OrsCA 1727 OF 2016 [35].
82
Empress v. Idu Beg ILR (1881) 3 All 776.
83
H. L. A Hart and John Gardner, Punishment and Responsibility (1stedn, Oxford University Press 2009).

12 | P a g e
punishment specified under Section 13(3) is a minimum of one year and a maximum of seven
years.84Thus, mens rea acts as a uniform for standard for adjudging the quantum of
punishment as a result of which mens rea cannot be excluded from the elements of the given
provision.85

3. An exclusion of mens rea from Section 13(1)(d)(iii) would lead to frustration of

decision making process in public offices.
52. Decision making in public offices is centered around varying metrics of the term
public interest. It is submitted that making of unpopular decisions which do not align
with the conventional notions of development, cannot be the sole reason for prosecution.
The intention of the Parliament in the light of the preamble86 shows that the purpose of
the act is to punish corrupt officials. By excluding mens rea as an essential element under
Section 13(1)(d)(iii), every innocuous decision and error of judgment on part of the public
servant is brought under immense criminal scrutiny. Thus it is submitted by the Petitioner
that the standard imposed by Section 13(1)(d)(iii) is one where there is an element of
dishonesty that exists in causing any manner of unwarranted advantage to another and a
loss to the public exchequer is proved, thus rendering the public servant unworthy of
public office.87

B. THE SUPPLEMENTARY REPORT IS LIABLE TO BE QUASHED TO ABSENCE OF MENS REA IN

THE CURRENT FACT SITUATION.

53. Dibyojyoti Basu was considered an extremely bold officer, who did not hesitate in
making decisions impeding the Chief Ministers brothers entourage and thus protecting
the Sunderbans forest.88 Prosecution on the basis of presence in the meetings of the sale
of the company would act as impediments to the duties of public officers and would
prevent them from taking initiative and fulfilling larger social goals, which would be
adverse to greater public interest.89

84
The PCA, s 13(3).
85
Bata India Ltd. v Special Director, Enforcement 1998 (60) ECC 278.
86
The Constitution of India, preamble.
87
Tarlochan Dev Sharma vs State of PunjabCA 1889 of 2000.
88
Case-Study, para 8.
89
Peter Cane, Administrative Law (4thedn, OUP 2004) 205-206.

13 | P a g e
 54. Thus the Court needs to harmonize the standard to be met by decisions against public
interest and decisions made against public interest with a dishonest intention. This can be
achieved by including mens rea as an essential element of Section 13(1)(d)(iii). It is thus
submitted that the Supplementary Report is liable to be quashed in the absence of mens
rea in the actions of the accused.

V. THE COGNIZANCE OF OFFENSES UNDER THE PC ACT AND TRE IPC ARE BAD IN LAW.
55. Taking of Cognizance of offences and prosecution of a public servant mandates a
requirement of sanction under law.90Thus it is submitted by the Petitioner that the Ld.
Special Judge committed a grave error in law by taking cognizance of the offences and
considering a lack of sanction to be immaterial to the proceedings under given fact
circumstance.91 The Petitioner has two submissions in this regard. A. Prior sanction under
Section 197 CrPC for taking cognizance of offences under Section 405, 415, 420 read
with Section 120-BB. Sanction under Section 19 is a pre-requisite for cognizance under
Section 13(1)(d)

A. PRIOR SANCTION IS MANDATORY UNDER SECTION 197 CRPC (CRPC) FOR TAKING
COGNIZANCE OF OFFENCES UNDER SECTION 405, 415, 420 READ WITH SECTION 120-

B
56. It has been held that Section 197 of the CrPC must be interpreted in furtherance of
justice and good governance, and there is a need to protect public servants against
vexatious prosecutions, especially in the times of changing governments.92

57. Thus invocation of a protection under Section 197 CrPC requires the test of a
reasonable nexus between the act in question and the scope of discharge of official duties
to be fulfilled.93 Thus it is submitted by the Petitioner that i. the scope of discharge of
official duty should be decided by the competent statutory authority ii. The Act in
question was in discharge of official duty.

1. The Act in question was in discharge of official duty.

90
The CrPC 1983, s 19, 197.
91
Case-Study, para 23.
92
Subramanian Swamy v. Manmohan Singh and Anr (2012) 3 SCC 64 [74].
93
Mohd. Iqbal Ahmed v State of Andhra 1979 AIR 677; Nath Misra v. State of U.P. and Ors (1997) 5 SCC 326
[5].

14 | P a g e
 58. The standard prescribed by the judiciary for the requirement of sanctions, is the need
for establishment of a prima facie case that the alleged actions were committed in the
discharge of official duties.94The standard laid down by the Supreme Court in the case of
Prakash Singh Badal v State of Punjab95 is that, the acts or omissions in question must
have been in discharge of his duties, on an act or on omission being considered an aspect
of the public servants duty its official nature has been accorded a wide and a liberal
interpretation.96

59. Thus the fact circumstances do not indicate any manner of malice or illegal acts on
the part of the Petitioner. His presence in the meetings and the decision making process97
are a part of the scope of discharge of his duties.

60. Therefore, the acts of taking decisions in committee meetings98 and presence in the
meetings of the take over99, fall within the scope of official duties.100 Thus under prima
facie standard a Sanction under Section 197 is mandatory in the absence of blatantly
illegal acts.101

2. Arguendo, the inseparable nature of the Criminality of the Act, mandates the
requirement of sanction under Section 197 CrPC.
61. Due to the intricate nature of corporate money laundering transactions and
embezzlement scheme which require intricate thought it is impossible to severe the
official acts in question and the acts which would amount to criminal offences, as a result
due to inseverable nature of the facts in question, under the Policy it is submitted that the
current factual circumstances mandate a Sanction for prosecution.102

B. SANCTION UNDER SECTION 19 IS A PRE-REQUISITE FOR COGNIZANCE UNDER THE PCA

94
H D Kumaraswamy and Anr v M. Vinod Kumar SLP(Crl) No.949/2012.
95
Prakash Singh Badal v State of Punjab AIR 2007 SC 1274.
96
General Officer Commanding, Rashtriya Rifles v CBI [2012] 5 SCR 599 [54].
97
Case-Study, para 7.
98
Ibid para 9.
99
Ministry of Corporate Affair, Unified Manual of the MCA
,https://www.mca.gov.in/Ministry/pdf/UnifiedManualofMCA.pdf accessed 1 May, 2017.
100
Sambhoo Nath Misra vs State Of U.P. Appeal (Crl) 318 of 1997 [5].
101
Rajib Ranjan and Ors. v. R. Vijaykumar (2015) 1 SCC 513
102
Harshad S. Mehta vs Central Bureau of Investigation 1992 (24) DRJ 392.

15 | P a g e
 62. Section 19(1)103 of the PCA mandates the requirement of previous sanction of
competent authority and places a bar on cognizance being taken against Section 13
offence of the Act.104 It is submitted that there is a need for strict application of the rule in
the light of changing political regime105, so as to afford protection to public
officersagainstmala fideand frivolous prosecutions.106 While section 19(3)(a) of the PCA
places an express bar on alteration or appeal of the order of a Special Judge, an exception
of failure justice has been carved out.107 Thus it is submitted that A. The cognizance
taken by the Special Judge suffers from grave failure of Justice, B. The Supplementary
Report filed under Section 173(8) is bad in law due absence of sanction

1. The Cognizance by the Special Judge suffers from grave and identifiable failure of
justice
63. Actions taken without respect to due process and outrageously arbitrary and
unreasonably in nature suffer from procedural unfairness.108 Thus it is submitted that i.
The present case fulfils the ingredients of failure of justice; and ii. Prima facie non
existence of sanction renders the Special judge incompetent to take cognizance.

i. The present case fulfills the ingredients of failure of justice

64. The legislative intent that led to the culmination of Section 197 CrPCwas based
around the idea of, prevention of mala fide prosecutions and to prevent officers of
integrity from the harassment of frivolous prosecutions.109 It is thus submitted that a
competent public officer who prevent the Chief Ministers family members from causing
environmental destruction, as a bold decision, is being maliciously targeted and a
vexatious attempt is being made to find something to stick against DibyojyotiBasu110

103
The PCA 1988, s 19(1).
104
Nanjappa vs State of Karnataka CRA. 1867 of 2012.
105
Case-Study, para 3.
106
Subramanian Swamy v. Manmohan Singh and Anr (2012) 3 SCC 64 [74].
107
The PCA 1988, s 13(1).
108
Sunil Batra v Delhi Administration (1978) 4 SCC 409.
109
Mohd. Iqbal, Ahmad vs State of Andhra Pradesh 1979 AIR 677; P.V. Narsimha Rao v. State AIR 1998 SC
2120.
110
Case-Study, para 8.

16 | P a g e
 65. This due to blatant procedural unfairness and the lack of a valid sanction in
prosecution111, it is submitted that the Special Judge committed gross failure of justice in
taking cognizance of the offences.

ii. Prima facie non existence of sanction renders the Special judge incompetent to
take cognizance

66. The powers of the special judge under Section 3,4 and 5 of the PCA as assessed by
the Supreme Court, has been held to be limited, in the absence of cognizance.112Thus, a
Special judge becomes incompetent to proceed with the case on prima facie absence of
sanction when there appears factual mala fide in prosecution.113

VI. THE SUPPLEMENTARY COMPLAINT FILED WAS ILLEGAL, AND MUST BE SET ASIDE AS

BAD IN LAW

67. PMLA is in place to ensure that there exists a framework in the criminal justice
system that ensures a fool proof mechanism to tackle crimes like money laundering and
any other connected activities.114 The Act has essentially focused on the offence of
Money Laundering and the aspect of proceeds of crimes under its body.115

It is submitted that the Supplementary Complaint dated 01.07.2016 is illegal and must
therefore be set aside as bad in law. The arguments to substantiate the same are two-fold: (i.)
That the proceeds of crime are not concerned, and (ii.) That a supplementary complaint/report
cannot be filed at the post-cognizance stage of the proceedings.
A. THAT THERE ARE NO PROCEEDS OF CRIME INVOLVED IN THE CASE
68. The Act grants within itself a restrictive mandate for the Directorate of Enforcement
[ED] to act in accordance with. Provisions like a necessity of investigation by the ED
only in the case of Scheduled Offences,116 restriction of an investigation by the ED in the
said Scheduled Offence, permitting limited involvement with respect to all questions of
Money Laundering are all restrictive in nature.

111
Sunil Batra v Delhi Administration (1978) 4 SCC 409.
112
State of Bihar v PP Sharma IAS 1991 AIR 1260.
113
Yusofalli Mulla Noorbhoy v The King (1950) 52 BOMLR.
114
The PMLA, 2002 Statement of Objects and Purposes.
115
Ibid s 3.
116
The PMLA 2002, s 2(u).

17 | P a g e
 69. It is submitted that there are no proceeds of crime involved in the said case as (i.) No
Predicate Offence has been proved and (ii.) There is no deliberate attempt to obtain
personal gains for the same.

1. No Predicate Offence has been proved

70. Any Scheduled Offence under the Act is a predicate offence, and therefore requires to
be proven before any investigation into the offence of Money Laundering and any other
connected activity are initiated.117 Reliance is placed on a criminal act to define the
proceeds of crime within the framing of the Act, without which no action can be
undertaken within the said Act.118 It is submitted that the Supplementary Complaint so
field is illegal since no predicate offence was proven at any stage.

71. On previous occasions, the Honble Court has emphasised on the value of certainty
before any initiation of criminal investigation takes place.119 It was held that a mere doubt
or rumour is not reason enough or reasonable enough a basis to initiate criminal
proceedings against a particular individual.120 No criminal offence by Mr. Dibyojyoti
Basu has been proven yet, and mere filing of a Supplementary Complaint/Report does not
put the criminality of an individuals actions beyond doubt.

72. In a similar case before the Allahabad High Court dealing with the alleged misuse of
position by a public servant, it was recognised that there exists a definite and strong
relation between the predicate offence and the investigation of offences under the Act and
furthered that such investigation depends on the result of the criminal proceedings of the
predicate offence.121

2. No Deliberate Design of Personal Gain exists

73. Honble Court has considered cases under the Act, with respect to huge losses to the
public exchequer as grave offences.122 The Court has also recognised that an intentional

117
Frequently Asked Questions on The PMLA, 2002, Enforcement Directorate, Government of India [14].
118
The PMLA 2002, s 2(U).
119
State of Karnataka v Arun Kumar Aggarwal and Othrs.2000 (1) SCC 210.
120
Ibid
121
Shiv Kant Tripathi v State of Uttar Pradesh 2013 (6) ADJ 672.
122
Y.S. Jagan Mohan Reddy v Central Bureau of Investigation (2013) 7 SCC 439.

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 attempt/design or motive towards obtaining personal gain affects the manner in which
each circumstance is viewed.123

74. However, the Court has considered that there occurs a reversal of such burden of
proof caused upon the acceptance of a complaint.124 The Court has recognised that once a
complaint has been filed under the Act, the burden to prove that any property was not a
proceeds of crime shifts upon an accused person and applies regardless of the fact that the
allegations may not be ultimately established.125 While recognising this shift in burden,
investigation proceeds in cases where a deliberate intention to obtain a personal gain can
be seen to exist.

75. There are no reasonable grounds upon which any such doubt can be cast upon Mr.
DibyojyotiBasu in relation to the sites allocated to the private companies through the
Committee established by the Government.126 It must be noted that even the Metropolitan
Court considered the role of Mr. DibyojyotiBasu to warrant only suitable disciplinary
action.127

B. SUPPLEMENTARY COMPLAINT CANNOT BE FILED POST-COGNIZANCE

76. The CrPC lays down a uniform structure of taking cognizance, where only a
magistrate can take cognizance of offences128 and no other court shall have the authority
to take cognizance as a Court of Original Jurisdiction.129 Similarly, provisions under
PMLA expressly state that the cognizance of an offence can be taken by a Special Court
only upon a complaint130 made in writing.131 The Act authorises a limited class of public
servants to use such provision132 to ensure that the procedure laid under the Code is
breached only in grave circumstances.

123
Gautam Kundu v Directorate of Enforcement, Government of India SLP(Crl.) 6701 of 2015.
124
B. Rama Raju v Union of India, (2011) 164 Comp Cases 149 AP.
125
Union of India v Hassan Ali Khan (2011) 10 SCC 235.
126
Case-Study [9].
127
Ibid [12].
128
CrPC 1973, s. 190.
129
Ibid s. 193.
130
PMLA 2002, s 45.
131
Ibid s 44(1)(b).
132
Ibid s 44(1)(ii).

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 77. It is submitted before the Honble Court that the provisions reflect an intention to
necessitate a complaint to be filed for cognizance to be taken. The provisions under the
Act prescribe for the cognizance to be taken only upon a complaint, and therefore the
intent behind the provision seems to be that there ought to be no more than one
complaint. In the particular case, cognizance has been taken under Sections 3 and 4 of the
Act upon the filing of the Supplementary Complaint133 and it is thus submitted that the
same falls outside the intent behind such provision.

78. The procedure known to law, with respect to filing of any additional complaint after
the discovery of new facts is to take recourse under the Code by invoking Section 319 of
the CrPC.134 There is no provision under the Code or the said Act for a supplementary
complaint to be filed to bring in some person as accused at a point in time, and it is not
legally permissible to be filing a supplementary complaint as has been held previously by
the Court.135

133
Case-Study, para 25.
134
CrPC 1973, S.319.
135
Ajit Narain Haksar & Ors. v Assistant Commissioner of Central Excise 2001 (78) ECC 326 [28].

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 PRAYER

Wherefore, in the light of facts explained, issues raised, arguments advanced, reasons given
and authorities cited, this Honble Court may be pleased to:

QUASH the proceedings arising out of O.C. 240/2015 against Shalini as contrary to
Article 20(1) of the Constitution of India;
HOLD that Section 50 of the PMLA is contrary to Article 20(3) of the Constitution of
India
SET ASIDE the Supplementary Report filed by the CBI against petitioners 1,2 and 3 as
bad in law
79.

The Honble Court may also be pleased to:

SET ASIDE Supplementary Report filed by CBI against Dibyojyoti Basu as bad in law in
the absence of any Mens Rea.
HOLD that the cognizance taken was not valid in/due to the absence of sanction.
SET ASIDE the Supplementary Complaint before the Ld. Special Court, Delhi, as illegal
and bad in law.

And grant any other relief that this Honble court may be pleased to grant in the interest of
justice and good conscience.

All of which is most respectfully submitted.

Counsel for Petitioners

Sd/-

XX