# Shiv Kant Tripathi v. The State of U.P. & Ors

- **Citation:** Criminal Misc. Writ Petition No. 4909 of 2010
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001
- **Case number:** Criminal Misc. Writ Petition No. 4909 of 2010
- **Bench:** Sushil Harkauli, L.K. Mohapatra, N.A. Moonis
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-kant-tripathi-v-the-state-of-u-p-ors-42952
- **Pages:** 6

## Headnote

A. Criminal Law - Constitution of India,
1950 - Article 226 - Code of Criminal
Procedure, 1973 - Section 173 - Indian
Penal Code, 1860-Sections 420, 467,
471, 120-B - Prevention of Corruption
Act, 1988-Sections 7, 8, 9, 10, 13(I)(e) -
Prevention of Money Laundering Act,
2002 - Sections 3⁄4 - Challenge to -
Submission of Final Report or Form by
Enforcement
Directorate
after
investigation-Section
65
of
Money
Laundering Act is governed by Criminal
Code,
1973
in
which
the
term
investigation included but not defined as
defined in the Code, 1973 -Investigation
shall include submission of Final form if
the process is issued by the Magistrate
or upon further investigation a chargesheet is submitted in respect of any
scheduled
offence,
the
Enforcement
Directorate shall submit Final report
before the designated Court so that
Court may examine the efforts made by
way
of
investigation,
the
evidence
collected, find out as to whether the
report is justified or not and the
complainant shall get an opportunity to
look into the report and submit a protest
petition, if requires-In the present case,
after
completing
investigation
the
Enforcement Directorate did not file
the final report on the ground that there
is no provision for submission of the
final report under the Money Laundering
Act-it can never be the intention of the
Legislature while legislating the MoneyLaundering
Act
to
empower
the
Directorate of Enforcement to sit over
the records when after investigation no
material is found in respect of the
offence alleged under the Act against an
accused
keeping
the
public,
the
complainant and the Court in dark
regarding the nature and extent of
investigation and outcome thereof-As
per Apex Court direction regarding the
term "investigation" includes formation
of opinion as to whether on the material
collected there is a case to place the
accused before the Magistrate for trial
and if so taking necessary steps for the
same by filing of a charge-sheet under
section 173-Hence, the Directorate of
Enforcement directed to submit final
report before the designated Court.(Para
1 to 20)

B. In the Present case, the petitioner
lodged an F.I.R. against Amar Singh who
was holding the office of Chairman of
the Uttar Pradesh Development Council,
misused
his
official
position
and
awarded various government contracts
worth thousands of crores to companies
owned and controlled by him. he was in
possession of wealth disproportionate to
his
known
sources
of
income
by
indulging in Money Laundering business
by
conspiring
with
other
Directors,
officials and statutory authorities.(Para
3)

The writ petition is disposed off.

List of Cases cited:

## Text

All. Shiv Kant Tripathi Vs. The State of U.P. & Ors.
1
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.08.2013

BEFORE

THE HON'BLE SUSHIL HARKAULI, J.
THE HON'BLE L.K. MOHAPATRA, J.
THE HON'BLE N.A. MOONIS, J.

Criminal Misc. Writ Petition No. 4909 of 2010

Shiv Kant Tripathi ...Petitioner
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
----

Counsel for the Respondents:
-----

A. Criminal Law - Constitution of India,
1950 - Article 226 - Code of Criminal
Procedure, 1973 - Section 173 - Indian
Penal Code, 1860-Sections 420, 467,
471, 120-B - Prevention of Corruption
Act, 1988-Sections 7, 8, 9, 10, 13(I)(e) -
Prevention of Money Laundering Act,
2002 - Sections 3⁄4 - Challenge to -
Submission of Final Report or Form by
Enforcement
Directorate
after
investigation-Section
65
of
Money
Laundering Act is governed by Criminal
Code,
1973
in
which
the
term
investigation included but not defined as
defined in the Code, 1973 -Investigation
shall include submission of Final form if
the process is issued by the Magistrate
or upon further investigation a chargesheet is submitted in respect of any
scheduled
offence,
the
Enforcement
Directorate shall submit Final report
before the designated Court so that
Court may examine the efforts made by
way
of
investigation,
the
evidence
collected, find out as to whether the
report is justified or not and the
complainant shall get an opportunity to
look into the report and submit a protest
petition, if requires-In the present case,
after
completing
investigation
the
Enforcement Directorate did not file
the final report on the ground that there
is no provision for submission of the
final report under the Money Laundering
Act-it can never be the intention of the
Legislature while legislating the MoneyLaundering
Act
to
empower
the
Directorate of Enforcement to sit over
the records when after investigation no
material is found in respect of the
offence alleged under the Act against an
accused
keeping
the
public,
the
complainant and the Court in dark
regarding the nature and extent of
investigation and outcome thereof-As
per Apex Court direction regarding the
term "investigation" includes formation
of opinion as to whether on the material
collected there is a case to place the
accused before the Magistrate for trial
and if so taking necessary steps for the
same by filing of a charge-sheet under
section 173-Hence, the Directorate of
Enforcement directed to submit final
report before the designated Court.(Para
1 to 20)

B. In the Present case, the petitioner
lodged an F.I.R. against Amar Singh who
was holding the office of Chairman of
the Uttar Pradesh Development Council,
misused
his
official
position
and
awarded various government contracts
worth thousands of crores to companies
owned and controlled by him. he was in
possession of wealth disproportionate to
his
known
sources
of
income
by
indulging in Money Laundering business
by
conspiring
with
other
Directors,
officials and statutory authorities.(Para
3)

The writ petition is disposed off.

List of Cases cited:

1. H.N. Rishbud & anr. Vs St. of Delhi (1955)
AIR SC 196

2. Smt. Sabita Praharaj Vs Smt. Gitarani
Praharaj & ors. (2004) Crl. L.J. 3975
2 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble L.K. Mohapatra, J.)

1. The prayers in this writ application
are for a direction to the Enforcement
Directorate (the respondent no. 4) to take
up the investigation of Crime Case No.
458/09 registered for commission of
offences under Sections 420/467/471/120B of the Indian Penal Code read with
Sections 7/8/9/10/13(I)(e) of the Prevention
of Corruption Act, 1988 (hereinafter
referred to as 'the Act') and Sections 3/4 of
the Prevention of Money-Laundering Act,
2002 (hereinafter referred to as 'the MoneyLaundering Act') in police station Babu
Purwa, District Kanpur Nagar, and for a
direction in the nature of Mandamus
directing the Special Cell, Economic
Offences Wing as also the Enforcement
Directorate to submit such periodic reports
as may be deemed fit and proper as to the
stage, status and manner of investigation to
this Court and to direct the Enforcement
Directorate and the Special Cell of the
Economic Offences Wing to complete the
investigation in the aforesaid case in a
time-bound manner within such period as
may be deemed just and proper.

2. The limited issue before this Court
for the present is as to whether the
Enforcement Directorate is required to file
the Final Form before the designated
Court or not. But before deciding the issue
raised in this writ application, it is necessary
to refer to the brief history of the case.

3. The petitioner Shiv Kant Tripathi
lodged an F.I.R. at P.S. Babu Purwa, District
Kanpur Nagar, alleging commission of
certain scheduled offences, certain offences
under the Prevention of Corruption Act, 1988
as well as commission of offences under
Sections 3 & 4 of the Money-Laundering
Act. The said F.I.R. was lodged on
15.10.2009 and was registered as Crime Case
No. 458 of 2009 in the said police station.
The allegations in the F.I.R. related to the
period when the respondent no. 7, Amar
Singh was Chairman of the Uttar Pradesh
Development Council in the the year 2003.
The substance of the allegations is that Amar
Singh while holding the office of the
Chairman of the Uttar Pradesh Development
Council, misused his official position and
awarded various government contracts worth
thousands of crores to companies owned and
controlled by him and he also received
kickbacks in the form of commission. It was
also alleged in the F.I.R. that Amar Singh
indulged in Money-Laundering business by
creating a web of shell companies. His wife
was the major shareholder of M/S Pankaja
Arts & Credit Private Ltd. and M/S
Sarvottam Caps Ltd. It was further alleged
that in all, there are 6 companies which were
under the control of Amar Singh but at the
same time they were not involved in any
active business. As many as 41 companies
merged with M/S Pankaja Arts & Credit
Private Ltd. and M/S Sarvottam Caps Ltd. by
orders of Kolkata High Court dated
31.12.2003 and 31.01.2005. Those 41
companies were shell companies with little or
no business. Therefore, the amalgamation
process was a deception and in the process of
amalgamation, the companies in which Amar
Singh had controlling shares were enriched
by wealth of around 400 crores. Thus, he was
in possession of wealth disproportionate to
his known sources of income and misused his
position by indulging in Money-Laundering
business by conspiring with other Directors,
officials and statutory authorities.

4. Amar Singh filed Criminal Misc.
Writ Petition No. 24225 of 2009 before this
Court for quashing the above F.I.R.. The
present writ petition was filed by the
complainant Shiv Kant Tripathi for the
All. Shiv Kant Tripathi Vs. The State of U.P. & Ors.
3
relief mentioned in the beginning of the
judgement. Both the writ petitions were
heard by a Division Bench of this Court.
Criminal Misc. Writ Petition No. 24225 of
2009 filed by Amar Singh was dismissed
and so far as the present writ petition is
concerned,
keeping
it
pending
for
monitoring the investigation, the following
direction was issued.

"In the above perspective we are
of the view that regard being had to the
various materials on record and also
considering the averments made in the
writ petitions and also in counter and
rejoinder affidavits, we are of the firm
view that it is a pre-eminently fit case for
exercise of extra-ordinary power and the
matter needs thorough probe by Special
Cell as the matter of has national
ramifications. Regard being had to the
fact that the companies which are alleged
to be shell companies are registered in
various
States
and
therefore,
the
Enforcement Directorate being Central
Agency shall be the appropriate Cell
capable of carrying out thorough probe. It
is therefore directed that the entire papers
relating to this matter shall be entrusted
to the Enforcement Directorate within 2
weeks and immediately after receipt of
the papers the Enforcement Director shall
commence investigation. The First Status
report
shall
be
submitted
by
the
Enforcement
Directorate
within
one
month after receipt of papers."

5. An application for modification
of the above order was filed on behalf of
the Enforcement Directorate. When the
case was taken up on 30th September,
2011, the Division Bench directed the
Enforcement
Directorate
to
continue
investigation
with
Money-Laundering
matter only and the case was adjourned.
The learned counsel appearing for the
Enforcement
Directorate
was
also
directed to inform the Court about the
progress of the investigation. Thereafter
the case suffered some adjournments and
ultimately came up before the larger
Bench on 12.09.2012. It appears that so
far
as
the
scheduled
offences
are
concerned, the State police was permitted
to investigate it whereas the offences
alleged under the Money-Laundering Act
were investigated by the Enforcement
Directorate. At the time of hearing of this
writ petition, the Court was informed that
so far as the scheduled offences are
concerned, the investigation has already
been completed and as no material for
constituting the offence alleged could be
made available to the investigating
agency, Final Form under Section 173 of
the Code of Criminal Procedure, 1973
(hereinafter referred to as 'the Code') has
been
filed
before
the
concerned
Magistrate and now it is awaiting
acceptance or other order by the learned
Magistrate.

6. It prima facie appears from the
proviso
to
section
17(1)
and
more
importantly the proviso to section 18 (1) of
the Prevention of Money-Laundering Act,
2002 that the Directorate of Enforcement
comes into action in respect of the money
laundering allegations only after a chargesheet is submitted by the police/agency
investigating the question whether any of
the
'scheduled
offences'
has
been
committed. We will assume that even if the
police submits a final report, alleging that
no scheduled offence has been committed,
but the Magistrate does not accept the same
and
issues
process,
even
then
the
directorate can initiate investigation into
money -laundering allegations. In that view
the investigation done by the directorate
4 INDIAN LAW REPORTS ALLAHABAD SERIES
under the interim orders passed herein,
even before a charge-sheet by the police
regarding any scheduled offence having
been committed, was premature.

7. So far as the offences under the
Money-Laundering Act are concerned, it
was informed by the learned counsel
appearing for the Enforcement Directorate
that the investigation has been completed
but on the basis of materials made available
during investigation, the Directorate did not
find any thing against Amar Singh to
submit a charge sheet and therefore, the
investigation has been closed but no report
has been submitted in any Court.

8. So far as the scheduled offences are
concerned,
Final
Form
having
been
submitted before the concerned Magistrate,
this Court need not pass any further order
as it is open for the Magistrate to either
accept or differ with the report. It is also
open to the complainant, the petitioner
before this Court, to file protest petition, if
not satisfied with the investigation.

9. If the final report is accepted by the
Magistrate, subject to any successful
challenge to his order, the investigation by
the Enforcement Directorate will become
redundant. In the event of rejection of the
final report, and issue of process or a
direction of further investigation and a
consequent charge-sheet, the investigation
of the Directorate will assume relevance.

10. So far as the investigation
conducted by the Enforcement Directorate is
concerned, it was specifically submitted on
behalf of the Enforcement Directorate that
there being no provision under the MoneyLaundering Act for submission of Final
Form, in case where the materials collected
during the investigation do not constitute or
are not sufficient to prove an offence under
the Money-Laundering Act, the file is to be
closed after investigation and no report is
required to be filed in any Court. The Court,
not being satisfied by such stand taken by the
Directorate, requested the learned counsel to
address on the question. Long arguments
were advanced by the learned senior counsel
appearing for all the parties on this issue but
we need not refer to all those arguments as
the answer can be found in the relevant
statute.

11. It was contended on behalf of the
Enforcement Directorate that there is no
provision in the Money-Laundering Act for
filing
of
a
Final
Form
when
after
investigation no material is found against an
accused for submission of a charge sheet. We
are unable to accept such contention
considering the provision contained in
Section 65 of the Money-Laundering Act,
which is quoted below:

"65.
Code
of
Criminal
Procedure, 1973 to apply.- The provisions
of the Code of Criminal Procedure, 1973 (2
of 1974) shall apply, insofar as they are not
inconsistent with the provisions of this Act, to
arrest, search and seizure, attachment,
confiscation, investigation, prosecution and
all other proceedings under this Act."

12. On perusal of the said Section we
find that the provisions of the Code, insofar
as they are not inconsistent with the
provisions of the Money-Laundering Act,
shall apply in respect of arrest, search and
seizure,
attachment,
confiscation,
investigation, prosecution and all other
proceedings under the Money-Laundering
Act.

13. The term 'investigation' has not
been defined in the Money-Laundering Act
All. Shiv Kant Tripathi Vs. The State of U.P. & Ors.
5
but it has been defined in the Code. With
reference to the said definition of the term
'investigation' appearing in the Code, it was
contended on behalf of the Enforcement
Directorate that the investigation as defined
in the Code, only includes the proceedings
for the purpose of collection of evidence
conducted by the police officer and does
not include submission of final report,
which is provided under Section 173 of the
Code.

14. It is true that the term
'investigation' has not been defined in the
Money-Laundering Act, but the said term
has been defined under the Code, as quoted
below:

"(h) "investigation" includes all
the proceedings under this Code for the
collection of evidence conducted by a
police officer or by any person (other than
a Magistrate) who is authorised by a
Magistrate in this behalf;"

15. The question as to whether the
term
'investigation'
shall
include
submission of Final Form or not, has been
set at rest by the Supreme Court in the case
of H.N.Rishbud and another vs. State of
Delhi reported in (A.I.R. 1955 SC 196).
The relevant finding of the Supreme Court
in paragraph 5 of the judgement is quoted
below:

"Thus
under
the
Code
investigation consists generally of the
following steps: (1) Proceeding to the spot,
(2)
Ascertainment
of
the
facts
and
circumstances of the case, (3) Discovery
and arrest of the suspected offender, (4)
Collection of evidence relating to the
commission of the offence which may
consist of (a) the examination of various
persons (including the accused) and the
reduction of their statements into writing, if
the officer thinks fit, (b) the search of
places or seizure of things considered
necessary for the investigation and to be
produced at the trial, and (5) Formation of
the opinion as to whether on the material
collected there is a case to place the
accused before a Magistrate for trial and if
so taking the necessary steps for the same
by the filing of a charge-sheet under
Section 173."

16. Similar view has also been
expressed by the learned Single Judge of
Orissa High Court in the case of Smt.
Sabita Praharaj
vs.
Smt.
Gitarani
Praharaj and others reported in (2004
Crl. L.J. 3975).

17. Section 173 of the Code makes it
obligatory on the part of the Officer in
charge to submit the report of completion
of investigation before the concerned
Court. Section 173 (2) of the Code provides
that as soon as the investigation is
completed, the Officer in charge of the
police station, shall file a report in the form
prescribed by the State Government giving
certain information as indicated in the said
provision
including
nature
of
the
information and as to whether any offence
appears to have been committed and if so,
by whom. It will also include filing of the
final report, if no material is found during
investigation for submission of a charge
sheet. It will not be out of place to say that
when an investigation is conducted in
respect of scheduled offences and no
material is found to support the allegations
during the investigation, Final Form is also
submitted under Section 173 of the Code.
Therefore, there is no reason why the term
'investigation' shall not include submission
of final report when in course of
investigation no material is found against
6 INDIAN LAW REPORTS ALLAHABAD SERIES
the accused for submission of the charge
sheet.

18. Apart from above, it can never be
the intention of the Legislature while
legislating the Money-Laundering Act to
empower the Directorate of Enforcement to
sit over the records when after investigation
no material is found in respect of the
offence alleged under the said Act against
an accused keeping the public, the
complainant and most importantly the
Court in dark regarding nature and extent
of investigation and outcome thereof. Lack
of judicial scrutiny, coupled with lack of
transparency would confer too excessive a
power/discretion upon the Director of
Enforcement.
Judicial
scrutiny
under
Article 226 would also not be of any help
when the petitioner has no access to the
nature, manner and extent of investigation
by the Directorate. We cannot overlook the
fact that generally persons engaged in
money laundering are likely to be rich and
powerful. This should not be seen as
doubting the personnel presently serving in
the directorate, but then there would be
others who would occupy these positions in
future.

19.

For
avoiding
undesirable
consequences it is open in statutory
interpretation to read it down or read it
wide. However, we are of the view that
Section 65 of the Money-Laundering Act
takes care of such a situation and the
Enforcement Directorate is duty bound to
submit final report or charge sheet, as the
case may be, before the Court which is
designated as Special Court by the Central
Government in consultation with the Chief
Justice of the High Court under Section 43
of the Money-Laundering Act. In the
present case, admittedly after completing
investigation the Enforcement Directorate
has not filed the final report on the ground
that there is no provision for submission of
the
final
report
under
the
MoneyLaundering Act. Since we hold that the
term 'investigation' shall also include
submission of final report as defined in the
Code, we direct that if the process is issued
by the Magistrate or upon a further
investigation a charge-sheet is submitted in
respect of any scheduled offence, the
Enforcement Directorate will submit the
Final Form before the designated Court so
that the designated Court shall be in a
position to examine the efforts made by
way of investigation, the evidence collected
during the investigation and find out as to
whether the final report was justified or
not. The complainant shall also get an
opportunity to look into the report and
submit a protest petition, if he desires.

20. We therefore, dispose of this writ
petition
directing
the
Enforcement
Directorate, in case of contingencies given
above, to submit Final Form before the
designated Court within 2 months from the
date of knowledge of the same.

Criminal Misc. Writ Petition No. 4909 of
2010

Shiv Kant Tripathi Vs. The State of U.P. &
Ors.

THE HON'BLE SUSHIL HARKAULI, J.
THE HON'BLE L.K. MOHAPATRA, J.
THE HON'BLE N.A. MOONIS, J.

1. Writ petition disposed of.

2. For orders see our order of date on
separate sheets (10 pages).
----------