Context:
The Supreme Court of India has affirmed a Telangana High Court ruling that requires prior government sanction for prosecuting public servants under the Prevention of Money Laundering Act (PMLA), 2002. This decision clarifies that Section 197(1) of the Code of Criminal Procedure, 1973 — now replaced by the Bharatiya Nagarik Suraksha Sanhita, 2023 — which mandates such government sanction, extends to cases under the PMLA as well.
Relevance:
GS II: Government Policies and Interventions
Dimensions of the Article:
- Section 197(1) of the Criminal Procedure Code (CrPC)
- Prevention of Money Laundering Act (PMLA), 2002
- Recent Changes Made Under the PMLA
Section 197(1) of the Criminal Procedure Code (CrPC)
Section 197(1) of the Criminal Procedure Code (CrPC) in India plays a crucial role in the legal framework that governs the prosecution of public servants. Here’s an overview of its key aspects:
Purpose and Function
- Protection of Public Servants: Section 197(1) requires that any prosecution of public servants (including judges and magistrates) for actions conducted in their official capacity must receive prior sanction from a government authority. This is to ensure that officials can perform their duties without fear of malicious or frivolous litigation.
- Sanction Authority: The authority to grant such sanctions varies depending on the public servant’s administrative alignment:
- Central Government: Sanction for prosecuting union-affiliated public servants.
- State Government: Sanction for those involved in state government affairs.
Aims and Implications
- Prevention of Malicious Prosecution: The requirement for prior government sanction serves to filter out cases where the charges might be driven by ulterior motives rather than genuine grievances.
- Good Faith Decision-making: It protects the ability of public servants to make decisions in good faith without undue worry about potential legal repercussions from those decisions.
Exceptions to the Rule
- Crimes Exempt from Sanction: Not all actions by public servants are protected under this section. Crimes that involve gender-based violence and sexual offences, as outlined in the Indian Penal Code, 1860, are exempt from the requirement of prior sanction. This exemption ensures that serious offences do not go unpunished under the guise of official duty.
Prevention of Money Laundering Act (PMLA), 2002
- According to the Prevention of Money Laundering Act (PMLA) 2002, Money laundering is concealing or disguising the identity of illegally obtained proceeds so that they appear to have originated from legitimate sources.
- It is frequently a component of other, much more serious, crimes such as drug trafficking, robbery or extortion.
- Money laundering is punishable with rigorous imprisonment for a minimum of 3 years and a maximum of 7 years and Fine under the PMLA.
- The Enforcement Directorate (ED) is responsible for investigating offences under the PMLA.
- The Financial Intelligence Unit – India (FIU-IND) is the national agency that receives, processes, analyses and disseminates information related to suspect financial transactions.
- After hearing the application, a special court (designated under the Prevention of Money Laundering Act PMLA, 2002) may declare an individual as a fugitive economic offender and also confiscate properties which are proceeds of crime, Benami properties and any other property, in India or abroad.
- The authorities under the PMLA, 2002 will exercise powers given to them under the Fugitive Economic Offenders Act.
- These powers will be similar to those of a civil court, including the search of persons in possession of records or proceeds of crime, the search of premises on the belief that a person is an FEO and seizure of documents.
Recent Changes Made Under the PMLA
The Indian government has made several changes to the Prevention of Money-Laundering Act (PMLA) to plug loopholes and comply with Financial Action Task Force (FATF) regulations. Some of the key changes are:
- More disclosures for non-governmental organizations by reporting entities like financial institutions, banking companies, or intermediaries.
- Definition of “politically exposed persons” (PEPs) as individuals who have been entrusted with prominent public functions by a foreign country, which brings uniformity with a 2008 Reserve Bank of India (RBI) circular for Know Your Customer (KYC) norms and anti-money laundering standards for banks and financial institutions.
- Inclusion of practicing chartered accountants, company secretaries, and cost and works accountants carrying out financial transactions on behalf of their clients under the ambit of the money laundering law.
- Widening the list of non-banking reporting entities to allow 22 financial entities like Amazon Pay (India) Pvt. Ltd, Aditya Birla Housing Finance Ltd, and IIFL Finance Ltd. to verify the identity of their customers via Aadhaar under the ambit of the money laundering law.
The financial transactions covered under the money laundering law include buying and selling of any immovable property, managing client money, securities, or other assets, management of bank, savings, or securities accounts, organization of contributions for the creation, operation, or management of companies, creation, operation, or management of companies, limited liability partnerships, or trusts, and buying and selling of business entities.
-Source: The Hindu
