Report No. 254
Chapter VIII
Analysis of Sections 18A-I of the 2013 Bill
8.1.1. Provisions regarding attachment and forfeiture have been introduced vide sections 18A-N of the 2013 Bill. However, they are bound to create confusion given that separate procedures for attachment and forfeiture in cases of corruption of public servants are covered under the following three laws:
a. The Criminal Law (Amendment) Ordinance 1944;
b. Prevention of Money Laundering Act, 2002 ("hereinafter PMLA");
c. The Lokpal and Lokayukta Act, 2013.
8.1.2. Hence, it might be better suited to replace the proposed sections 18A-18N with a single provision referring to the forfeiture and attachment procedures in the PMLA Act or the Criminal Law Ordinance of 1944. This will ensure our compliance with the UNCAC.
8.1.3. However, there may be some practice difficulties in the adoption of the PMLA procedure in cases investigated and prosecuted by State Government agencies such as the State Police, State Anti-Corruption Bureaus etc. It may not be desirable to load the Enforcement Directorate, the Adjudicating Authority and the Appellate Tribunal with thousands of cases under the PC Act all over the country as an exclusive forum for handling matters relating to attachment and forfeiture of property.
8.1.4. Further, the reach of the 1944 Ordinance is slightly different than that of the PMLA inasmuch as the Ordinance enables the filing of application for attachment by the appropriate government merely on the belief that any person has committed a scheduled offence and the said person has procured money or other property by means of the offence, whether or not any court has taken cognizance of the offence.
8.1.5. PMLA on the contrary enables provisional attachment where the Director or authorised Deputy Director believes that any person is in possession of any proceeds of crime (not necessarily the person who committed the crime) and such proceeds are likely to be concealed, transferred, etc. which may result in frustrating any proceedings for confiscation of such proceeds.
PMLA requires that an order for provisional attachment cannot be passed by the Director or authorised Deputy Director unless, in relation to the scheduled offence, a report has been forwarded to a Magistrate under Section 173 of the CrPC or a complaint has been filed by a person authorised to investigate the offence before a Magistrate or court for taking cognizance of the scheduled offence.
8.1.6. Having regard to these factors, a better option would be to provide for recourse for both the PMLA and the Criminal Law Amendment Ordinance of 1944, whichever may be found most convenient, depending upon the nature of the case.
8.1.7. It may, therefore, be desirable to delete the proposed new Chapter IVA and in its place, incorporate a new Section 18A along the lines of the provision made in the earlier Prevention of Bribery of Foreign Public Officials and Official of Public International Organisations Bill, 2011, which was introduced in the Lok Sabha in 2011 but lapsed with the dissolution of the 15th Lok Sabha.
8.1.8. Recommendation: The proposed Chapter IVA should be deleted and be re-cast as follows:
"18A. Save as otherwise provided under the Prevention of Money Laundering Act, 2002, the provisions of the Criminal Law Amendment Ordinance, 1944 shall, as far as may be, apply to the attachment, administration of attached property and execution of order of attachment or confiscation of money or property procured by means of an offence under this Act."
Consequential amendments will also need to be made to the PMLA, 2002 so as to include all the offences under the PC Act, as now redefined, as predicate offences under the Act by appropriate substitution of Paragraph 8 of Part A of the Schedule to the PMLA.
8.2. The amended version of the proposed Chapter IVA, introduced under the 2013 Bill, will now read as follows:
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