INDIA Law and Practice Contributed by: Priyank Ladoia, Asif Ahmed, Puneet Dhanoa and Utkarsh Routh, AZB & Partners
• conduct outside India that constitutes an offence at that place and would be a scheduled offence under Part A, B or C of the Schedule under the PMLA if committed in India, where its proceeds are transferred to India; or • a scheduled offence committed in India whose proceeds are transferred, or attempted to be trans - ferred, outside India. In the definition of “proceeds of crime”, the PMLA also covers any property derived or obtained, directly or indirectly, by any person as a result of criminal activ - ity relating to a scheduled offence or the value of any such property, or where such property is taken or held outside the country, and the property equivalent in value is held within the country or abroad. Accord - ingly, the PMLA contains Chapter IX – ie, Reciprocal Arrangement for Assistance in Certain Matters and Procedures for Attachment and Confiscation of Prop - erty – which deals with: • reciprocal arrangements with foreign states for processes and assistance regarding transfer of accused persons; • provisions for issuing letters of request; and • attachment, seizure and confiscation, etc, of prop - erty in a contracting state. 7.4 Discretion for Mitigation and Aggravation India does not recognise deferred prosecution agree - ments and non-prosecution agreements. However, India does recognise plea bargaining in limited cir - cumstances. It is not permitted in cases where the prescribed punishment is death or life imprisonment, or imprisonment for a term exceeding seven years. Plea bargaining also does not apply where the offence affects the socio-economic condition of the country or has been committed against a woman or a child under the age of 14 years. 7.5 Recent Landmark Investigations or Decisions Directorate of Enforcement v Bibhu Prasad Acharya, 2024 SCC Online SC 3181 In a recent judgment, the Supreme Court ruled that it is mandatory to obtain a prior sanction under Section 197 (1) of the Code of Criminal Procedure (CrPC) to prosecute a public servant for commission of offences
relating to money laundering under the PMLA. This is a significant ruling given that the Supreme Court extended the regime of prior sanction under CrPC to prosecutions of public servants under the PMLA as well, in view of Section 65 of the PMLA, which makes provisions of the CrPC applicable to the PMLA. Sita Soren v Union of India (2024) 5 SCC 629 In this seminal judgment, the Supreme Court held that the offence of bribery can be said to be complete even if the bribe stands taken but the act for which the bribe was taken was never performed. Further, the Court overruled its earlier verdict delivered in the case of PV Narsimha Rao v the State (1998) 4 SCC 626 and held that a member of the Legislative Assembly/member of parliament does not enjoy any immunity from pros - ecution under Article 105 (2) or Article 194 (2) of the Constitution for accepting bribes to vote. State of Karnataka v Chandrasha, Criminal Appeal No 2646 of 2024 In this case, the Supreme Court observed that the amount of illegal gratification need not be “substan - tial” for the presumption under Section 20 of the PCA to apply. As per Section 20 (3), the Court has the dis - cretion to refrain from drawing an adverse presump - tion against the public servant if the amount involved is trivial. The Court clarified that the “triviality” clause in Section 20 (3) is an exception that a court may exer - cise discretionarily, after considering the act sought to be influenced and the surrounding facts; it is not a rule that defeats the presumption merely because the amount is small. The Supreme Court held that the presumption under Section 20 was not necessary when the nexus between the demand and acceptance of illegal grati - fication has been established. State of Karnataka v Sri Channakeshava HD, 2025 INSC 471 The Supreme Court held that a preliminary inquiry is not mandatory under the PCA for initiating a cor - ruption case against a public servant, and therefore observed that the absence of a preliminary inquiry does not justify quashing a case against a public serv - ant solely on that ground.
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