INDIA Law and Practice Contributed by: Priyank Ladoia, Asif Ahmed, Pranav Tomar and Puneet Dhanoa, AZB & Partners
• attachment, seizure and confiscation, etc, of property in a contracting state. 7.4 Discretion for Mitigation and Aggravation India does not recognise deferred prosecution agreements and non-prosecution agreements. However, India does recognise plea bargain - ing in limited circumstances. It is not allowed 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. A person accused of an offence may file a plea- bargaining application in the jurisdictional court with a brief description of the facts of the case. A prerequisite for such an application is that the accused person has not previously been convicted of the same offence by a court. After understanding the nature and extent of punish - ment provided by the law for the offence, the application is voluntarily preferred. 7.5 Recent Landmark Investigations or Decisions Directorate of Enforcement v Bibhu Prasad Acharya, 2024 SCC Online SC 3181 In a recent judgment pronounced in November 2024, the Supreme Court ruled on prior sanc - tions to prosecute a public servant for com - mission of offences of money laundering under the PMLA. This is a significant ruling given that the Supreme Court held that Section 197(1) of CrPC (which mandates that a prior sanction be obtained before initiating prosecution against public servants) is applicable to prosecutions and proceedings under the PMLA.
In this case, the accused person (ie, Bibhu Pras - ad Acharya) was a vice-chairman and managing director of Andhra Pradesh Industrial Infrastruc - ture Corporation Limited, which is a public sec - tor undertaking; therefore, the accused qualified as a “public servant”. The Supreme Court was seized of a challenge to the Trial Court’s order taking cognisance of a complaint filed by the ED alleging commission of the offence of mon - ey laundering under the PMLA. This was chal - lenged on the grounds that since no prior sanc - tion under Section 197(1) of CrPC was taken the accused person cannot be prosecuted. The Supreme Court, rejecting the ED’s contention, ruled that Section 197(1) of the CrPC was appli - cable to prosecution under the PMLA, in view of Section 65 of the PMLA, which made provisions of the CrPC applicable to the PMLA provided they were not inconsistent with the provisions contained in the PMLA. Sita Soren v Union of India (2024) 5 SCC 629 The appellant Sita Soren was charged under the provisions of the PCA, for purportedly accepting bribes from an independent candidate standing for elections. The principal issues for considera - tion were whether the offence of bribery can be said to be complete if the bribe stands taken but the act for which the bribe was taken was not performed, and whether an MLA/MP has immunity from prosecution under Article 105(2) or Article 194(2) of the Constitution for accepting bribes to vote. The Supreme Court held that it does not matter whether the act for which the bribe was taken is ever performed. Section 7 of the PCA thus defines bribery as entailing the act of offering, giving or accepting bribes with the intention to influence the actor’s actions. Further, it was held that there is no immunity from prosecution under Article 105 and 194 of the Constitution
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