India: The End Of Hide & Seek Game For Fugitive Economic Offenders?

Last Updated: 9 September 2018
Article by Sanjeev Kumar and Anshul Sehgal

INTRODUCTION

The Fugitive Economic Offenders Act, 2018 ("FEOA") was introduced by the Ministry of Finance and Corporate Affairs, which has been passed by the Lok Sabha on 19.07.2018 and subsequently by the Rajya Sabha on 25.07.2018. FEOA has received the Presidents' assent on 31.07.2018 and is deemed to have come in force from 21.04.2018.

SALIENT FEATURES OF FEOA

  1. The main intent of FEOA is to provide for measures to deter fugitive economic offenders from evading the process of law in India by staying outside the jurisdiction of Indian Courts in anticipation of commencement of criminal proceedings or not participating in on-going criminal proceedings. Since most economic offences pertain to non-payment of loans which have weakened the Indian economy, the FEOA has been put in force to curb the shortcomings in the civil and criminal laws, to deal with such offenders staying offshores.
  2. Under the FEOA an individual may be declared as a Fugitive Economic Offender ("FEO") upon two important criterions i.e. if

    1. an arrest warrant has been issued against the person for any Scheduled Offences where the value involved is over Rs 100 crore, and
    2. he has left the country and refuses to return to face prosecution.
  3. To declare an individual as an FEO, an application has to be filed in a "Special Court" (designated under the Prevention of Money-Laundering Act, 2002) containing details of the properties to be confiscated, and any information about the individual's whereabouts.
  4. The Special Court shall issue notice to the individual to appear at a specified place in at least six weeks from issuance of notice. Proceedings will be terminated if the individual appears.
  5. FEOA allows designated authorities to provisionally attach properties of an accused, while the application is pending before the Special Court.
  6. Upon declaration as an FEO, properties of the individual may be confiscated and vested in the Central Government, free of encumbrances (rights and claims in the property). Further, the FEO or any company associated with him may be barred from filing or defending any civil claims.

ANALYSIS OF THE PROVISIONS OF FEOA

A. APPLICATION FOR DECLARING AN INDIVIDUAL A FEO1 AND ITS PROCEDURE.

  1. Upon having due reasons to believe that an individual is an FEO, with reasons in writing supported with materials in possession for the same, the Director2 or any officer not below the rank of a Deputy Director3 ("Director") may file an application before the Special Court4 to declare such an individual as FEO5.
  2. An FEO shall mean any individual against whom a warrant of arrest has been issued by a Court of law in India as per the Scheduled Offences6 and such an individual has left India to avoid criminal prosecution or who is already abroad refuses to return to India to face criminal prosecution.
  3. The requisites for filing an Application7 are as follows:

    1. reasons for the belief that an individual is a fugitive economic offender;
    2. any information available as to the whereabouts of the fugitive economic offender;
    3. a list of properties or the value of such properties believed to be the proceeds of crime, including any such property outside India for which confiscation is sought;
    4. a list of properties or benami property owned by the individual in India or abroad for which confiscation is sought; and
    5. a list of persons who may have an interest in any of the properties listed under (c) and (d).
  4. The Special Court upon receipt of an application shall issue a notice to the individual alleged to be an FEO. Further, notice can also be issued to any other person of interest, as well.8
  5. The contents9 of the notice have to mandatorily include the following:

    1. require the individual to appear at a specified place and time not less than six weeks from the date of issue of such notice; and
    2. state that failure to appear on the specified place and time shall result in a declaration of the individual as a fugitive economic offender and confiscation of property under this Act.
  6. The burden of proof for establishing an individual as an FEO or declaring proceeds of crime shall be on the Director10 before the Special Court.
  7. The notice has to be served by the authority as notified by the Central Government for this purpose and efforts have to be made to serve the same within two (2) weeks. The Notice can be served in means as provided for under the provision.11
  8. In the event the individual alleged to be an FEO appears in person as per the notice issued by the Special Court, the proceedings shall be terminated12. If the individual appears through counsel, then a week shall be granted to file a reply to the Application13. The same shall apply for a person of interest as well.14
  9. In the event the individual fails to appear in person or through counsel and if the Special Court is satisfied on the service of notice or if not served, on the efforts taken to serve the notice, the Special Court may records reasons and hear the Application15. Upon hearing of the Application and on being satisfied, the Special Court can declare the individual to be a an FEO.16 The Special Court will be bound by preponderance of probabilities for the standard of proof applicable towards determining facts17.
  10. The Director may during the pendency of the Application, file a 'supplementary application' before the Special Court for such property discovered or identified later18 and the same process as that prescribed for an Application shall follow for such a 'supplementary application'.
  11. If an individual is declared to be an FEO under Section 12(1) of FEOA, then the Special Court is empowered to order confiscation of proceeds of crime owned by the FEO in India or abroad and any such property / benami property owned by FEO in India or abroad. Such proceeds will be handed over to the Central Government along with the identification details of the same and the quantification, if possible.19
  12. In the event that the Special Court declares the individual not to be an FEO then the property / records attached or seized will be ordered to be released to the concerned person entitled to receive the same20. However, the Director may withhold the said property / record for 90 days in order to file an appeal21. An appeal against the judgment / order of the Special Court shall lie to the concerned High Court which has to be filed within 30 days, extendable by another 30 days on sufficient cause being shown. However no appeal will be entertained beyond a period of 90 days22.
  13. The Special Court while passing an order of confiscation may exempt such property, if the person having interest in it has shown bonafides or has acquired such interest without the knowledge of the FEO's involvement and the property being a proceed of crime. The burden of proof for claiming no knowledge or bonafides will be upon such person of interest itself23.
  14. Upon confiscation of properties under the FEOA, the Central Government will appoint an Administrator24 i.e. officer not below the rank of Joint Secretary to the Government of India; who will receive, manage or take actions as per the powers of the Central Government.

B. ATTACHMENT OF PROPERTY25

  1. The Director can file an application seeking attachment of properties in writing, with the permission of the Special Court. Furthermore, even prior to the filing of an Application, the Director, can by a written order attach the properties under two circumstances i.e.:

    1. For which there is a reason to believe that the property is proceeds of crime, or is a property owned by an individual who is a fugitive economic offender; and
    2. Which is being or is likely to be dealt with in a manner which may result in the property being unavailable for confiscation26
  2. It is important to note that in case such an order of attachment prior to filing of an application is carried out, then the application has to be compulsorily moved before the Special Court within 30 days thereto. This attachment continues for a period of 180 days and can be extended by the Special Court.27
  3. Interestingly, during the period of attachment, any person of interest i.e. claiming or entitled to claim interest in the attached property, is allowed to enjoy the said immovable property.28
  4. Prior to FEOA, several other special laws have been passed by the Government of India wherein even prior to conviction drastic measures could be adopted by the concerned Courts and Authorities, which were always staring at a conflict of the basic tenet of criminal law that every person is innocent unless proven guilty as has been laid down by the apex court in a plethora of judgments as well as Article 20 of Constitution of India. Detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 against suspected smugglers or be it the confiscation of suspected ill-gotten properties under the Smugglers and Foreign Exchange Manipulators Act 1976, these special laws were enacted as a measure to deter offenders under special circumstances and the same stood the test of law for a long time. The validity of COFEPOSA, 1974 was challenged before the apex court, in the case of Attorney General of India Vs Amaratlal Prajivandas29 wherein the vires of the Act was upheld on the ground that individual civil liberty can be curtailed by the authority in the interest of general public and the nation. This also seems to be intent of the Legislature by the introduction of the FEOA.
  5. Such is also the case in the fairly recent, Prevention of Money Laundering Act, 2002 ("PMLA").The legality of the second proviso to Section 5 of PMLA for being violative of Article 14 of the Constitution of India was recently challenged before the Delhi High Court in the case of J. Sekar v. Union of India & Ors.30 wherein the same came to be dismissed. The Union of India immediately challenged31 the same before the apex court wherein vide an interim order dated 04.07.2018, the entire operation of the judgment by the Delhi High Court has been stayed. Section 5 of FEOA is pari materia to Section 532 of PMLA, in view of the pendency of proceedings where the constitutionality of Section 5 of PMLA lies in the limbo the final judgment may have a material effect on Section 5 of FEOA as well.

C. POWERS TO DIRECTOR UNDER FEOA

  1. For making an Application under Section 4 of FEOA, the Director is vested with the same powers of a Civil Court under the Code of Civil Procedure, 1908.33
  2. The Director on the basis of material in possession or reasons to believe in writing that an individual is an FEO, has the power to enter and survey any place that is within the limits of area assigned or authorized for the same.34 Further, the Director has been empowered to make survey, inspect the place, check and verify proceeds of crime, place identification marks, make inventory, record statements etc. for the purposes of FEOA.35
  3. Over and above the powers of a Civil Court and the power to survey, a Director has been empowered to search and seize any such property, vessel, locker, safe etc. as may be required for the purposes of FEOA.36

D. WIDE POWERS TO THE CENTRAL GOVERNMENT AND ITS AUTHORITIES

For the purposes of proceedings under FEOA, the Central Government through any concerned authority has been given wide powers of search of persons and any other material relevant for the same. Moreover, apart from search, the powers of seizure, detention as per the time frame, calling witnesses, recording of statements etc. have been provided for.37

E. DRAWBACKS OR TOO STRINGENT A PROVISION UNDER THE FEOA?

It is our understanding that only the Director can initiate the process under the FEOA seeking declaration of an individual as a FEO and further seek confiscation of the proceeds of crime by the FEO. The FEOA is silent for not having prescribed a remedy or process wherein apart from the Director, any individual / company / bank / Limited Liability Partnership ("LLP") etc. can carry out the aforesaid process under the FEOA.

Under Section 5 of FEOA, the extension of the attachment prior to filing of the application beyond the 180 days period can be extended by the Special Court. This seems to be contrary to the intent of FEOA, as at times it has been seen that such extensions lead to inordinate delays and ultimately may frustrate the proceedings.

Under Section 14 of FEAO, when an individual has been declared as an FEO, every Court / Tribunal wherein any civil proceedings are ongoing, will disallow such an FEO to put forward its civil claim. Furthermore, any Court / Tribunal may disallow a Company / LLP from forwarding or defending any claim, wherein the individual filing such claim on behalf of the Company, LLP, promoter, key managerial position or majority shareholder of the company or having controlling interest in the LLP has been declared an FEO.

This particular provision under the FEAO seems to be ultra vires Article 14 of the Constitution of India for depriving a person from access to justice. The Constitution Bench recently in the matter of Anita Kushwaha v. Pushap Sudan38 dealt with the question of law that, whether access to justice is indeed a fundamental right? Wherein it was held that :

Para 10. The concept of "access to justice" as an invaluable human right, also recognised in most constitutional democracies as a fundamental right, has its origin in common law as much as in the Magna Carta. The Magna Carta lays the foundation for the basic right of access to courts in the following words:

"No freeman shall be taken or imprisoned or disseised or outlawed or exiled or in any way ruined, nor will we go or send against him, except by the lawful judgment of his peers or by the law of the land. To no man will we sell, to no one will we deny or delay right to justice.

Para 17. The legal position is no different in India. Access to justice has been recognised as a valuable right by the courts in this country long before the commencement of the Constitution...

Para 29.To sum up: access to justice is and has been recognised as a part and parcel of right to life in India and in all civilised societies around the globe. The right is so basic and inalienable that no system of governance can possibly ignore its significance, leave alone afford to deny the same to its citizens. The Magna Carta, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, 1966, the ancient Roman jurisprudential maxim ubi jus ibi remedium, the development of fundamental principles of common law by judicial pronouncements of the courts over centuries past have all contributed to the acceptance of access to justice as a basic and inalienable human right which all civilised societies and systems recognise and enforce.

Para 31. Given the fact that pronouncements mentioned above have interpreted and understood the word "life" appearing in Article 21 of the Constitution on a broad spectrum of rights considered incidental and/or integral to the right to life, there is no real reason why access to justice should be considered to be falling outside the class and category of the said rights, which already stands recognised as being a part and parcel of Article 21 of the Constitution of India. If "life" implies not only life in the physical sense but a bundle of rights that makes life worth living, there is no juristic or other basis for holding that denial of "access to justice" will not affect the quality of human life so as to take access to justice out of the purview of right to life guaranteed under Article 21. We have, therefore, no hesitation in holding that access to justice is indeed a facet of right to life guaranteed under Article 21 of the Constitution. We need only add that access to justice may as well be the facet of the right guaranteed under Article 14 of the Constitution, which guarantees equality before law and equal protection of laws to not only citizens but non-citizens also. We say so because equality before law and equal protection of laws is not limited in its application to the realm of executive action that enforces the law. It is as much available in relation to proceedings before courts and tribunal and adjudicatory fora where law is applied and justice administered. The citizen's inability to access courts or any other adjudicatory mechanism provided for determination of rights and obligations is bound to result in denial of the guarantee contained in Article 14 both in relation to equality before law as well as equal protection of laws. Absence of any adjudicatory mechanism or the inadequacy of such mechanism, needless to say, is bound to prevent those looking for enforcement of their right to equality before laws and equal protection of the laws from seeking redress and thereby negate the guarantee of equality before laws or equal protection of laws and reduce it to a mere teasing illusion. Article 21 of the Constitution apart, access to justice can be said to be part of the guarantee contained in Article 14 as well.

In view of the above decision of the Constitution Bench, is Section 14 of FEOA in contravention of Article 14 for depriving a person access to justice? This freshly notified legislation stares at a situation wherein one of its most hailed provisions i.e. Section 14 of FEOA seems to be falling foul of the laid down by the Supreme Court. Will it be struck down?

Footnotes

1. Section 4 of FEOA.

2. Section 2(1)(e) of the FEOA : "Director" means the Director appointed under sub-section (1) of section 49 of the Prevention of Money-laundering Act, 2002.

3. Section 2(1)(d) of FEOA: "Deputy Director" means the Deputy Director appointed under sub-section (1) of section 49 of the Prevention of Money-laundering Act, 2002.

4. Section 2(1)(n) of FEOA : "Special Court" means a Court of Session designated as a Special Court under sub-section (1) of section 43 of the Prevention of Money-laundering Act, 2002.

5. Section 4 of FEOA.

6. Schedule - I under the FEOA.

7. Section 4(2) of FEOA.

8. Section 10(1) and (2) of FEOA.

9. Section 10(3) of FEOA.

10. Section 16 of FEOA.

11. Section 10(4)(5) and (6) of FEOA.

12. Section 11(1) of FEOA.

13. Section 11(2) of FEOA.

14. Section 11(4) of FEOA.

15. Section 11(3) of FEOA.

16. Section 12(1) of FEOA.

17. Section 12 (3) of FEOA.

18. Section 13 of FEOA.

19. Section 12(2), (3) and (4) of FEOA.

20. Section 12(9) of FEOA.

21. Section 12(10) of FEOA.

22. Section 17 of FEOA.

23. Section 16(2) of FEOA.

24. Section 2(1)(a) of FEOA.

25. Section 5 of FEOA.

26. Section 5(2) of FEOA.

27. Section 5(3) of FEOA.

28. Section 5(4) of FEOA.

29. AIR1994SC2179

30. (2018) 246 DLT 610

31. SLP (C) No. 12865/2018

32. Section 5 - Attachment of property involved in money-laundering

(1) Where the Director or any other officer not below the rank of Deputy Director authorised by the Director for the purposes of this section, has reason to believe (the reason for such belief to be recorded in writing), on the basis of material in his possession, that-

(a) any person is in possession of any proceeds of crime; and

(b) such proceeds of crime are likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceedings relating to confiscation of such proceeds of crime under this Chapter,

he may, by order in writing, provisionally attach such property for a period not exceeding one hundred and eighty days from the date of the order, in such manner as may be prescribed:

Provided that no such order of attachment shall be made unless, in relation to the scheduled offence, a report has been forwarded to a Magistrate under section 173 of the Code of Criminal Procedure, 1973(2 of 1974), or a complaint has been filed by a person authorised to investigate the offence mentioned in that Schedule, before a Magistrate or court for taking cognizance of the scheduled offence, as the case may be, or a similar report or complaint has been made or filed under the corresponding law of any other country:

Provided further that, notwithstanding anything contained in first proviso, any property of any person may be attached under this section if the Director or any other officer not below the rank of Deputy Director authorised by him for the purposes of this section has reason to believe (the reasons for such belief to be recorded in writing), on the basis of material in his possession, that if such property involved in money-laundering is not attached immediately under this Chapter, the non-attachment of the property is likely to frustrate any proceeding under this Act.

Provided also that for the purposes of computing the period of one hundred and eighty days, the period during which the proceedings under this section is stayed by the High Court, shall be excluded and a further period not exceeding thirty days from the date of order of vacation of such stay order shall be counted.

(2) The Director, or any other officer not below the rank of Deputy Director, shall, immediately after attachment under sub-section (1), forward a copy of the order, along with the material in his possession, referred to in that sub-section, to the Adjudicating Authority, in a sealed envelope, in the manner as may be prescribed and such Adjudicating Authority shall keep such order and material for such period as may be prescribed.

(3) Every order of attachment made under sub-section (1) shall cease to have effect after the expiry of the period specified in that sub-section or on the date of an order made under 6[sub-section (3)] of section 8, whichever is earlier.

(4) Nothing in this section shall prevent the person interested in the enjoyment of the immovable property attached under sub-section (1) from such enjoyment.

Explanation.--For the purposes of this sub-section, "person interested", in relation to any immovable property, includes all persons claiming or entitled to claim any interest in the property.

(5) The Director or any other officer who provisionally attaches any property under sub-section (1) shall, within a period of thirty days from such attachment, file a complaint stating the facts of such attachment before the Adjudicating Authority.

33. Section 6 of FEOA.

34. Section 7(1) of FEOA.

35. Section 7(2) of FEOA.

36. Section 8 of FEOA.

37. Section 9 of FEOA.

38. (2016) 8 SCC 509

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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