Dual Prosecution In India: The Interplay Between CBI Investigations, ED Prosecutions Under The PMLA, And Offences Under The Prevention Of Corruption Act And Bharatiya Nyaya Sanhita, 2023
Abhisek Padhi, School of Law, KIIT University
ABSTRACT
Corruption and money laundering go hand in hand as types of economic crimes. A corruption allegation in India can lead to an investigation by the Central Bureau of Investigation (CBI), whereas suspected laundering of the proceeds of crime can result in investigations by the Enforcement Directorate (ED) under the Prevention of Money Laundering Act, 2002 (PMLA). Such parallel proceedings raise issues of statutory jurisdiction, connection with a scheduled offence, and protection of persons accused of money laundering.
This paper discusses the legal regime in the context of concurrent CBI and ED cases involving alleged corruption under the Prevention of Corruption Act, 1988, and offences under the Bharatiya Nyaya Sanhita, 2023 (BNS). It examines the different elements and characteristics of corruption and money- laundering offences, the consequences of proceedings involving both investigations, and the impact of discharge or acquittal in the predicate offence on the PMLA case. It also takes into account the prohibition of double jeopardy and protection against arbitrary deprivation of liberty, as stated in Articles 20(2) and 21 of the Constitution.
The paper also highlights the shift from the Indian Penal Code, 1860, to the BNS and the implications of this shift in relation to the determination of scheduled offences under the PMLA. It argues that parallel proceedings are acceptable if each agency acts within its statutory powers and the elements of each offence are separately established. The independent nature of money laundering does not, however, negate the requirement that alleged proceeds of crime be linked to criminal activity relating to a scheduled offence. An approach should thus reconcile the requirements of enforcement with the need for a statutory foundation, fairness in the application of the law, and judicial review.
Keywords: Money Laundering; Enforcement Directorate; Central Bureau of Investigation; Prevention of Money Laundering Act, 2002; Prevention of Corruption Act, 1988; Bharatiya Nyaya Sanhita, 2023; Predicate Offence; Parallel Prosecution; Double Jeopardy; Constitutional Safeguards.
