TMI Blog2022 (7) TMI 720X X X X Extracts X X X X X X X X Extracts X X X X ..... point of the 180 days period - In RAJENDRA KUMAR MURARKA VERSUS MOHSINA TABASSUM ORS. [ 2021 (7) TMI 1273 - CALCUTTA HIGH COURT] , the Court noted that the writ petitioner had not only participated in the adjudication but the hearing had also been concluded and final orders were awaited. In the appeal from this order, the Division Bench declined to interfere taking into account that the Single Bench had expressed its wish to finally adjudicate the issue on the strength of affidavits directed to be exchanged by the parties. The Division Bench also took note of the fact that the Single Bench had directed that any decision taken by the Adjudicating Authority would abide by the result of the writ petition. In the present facts, the petitioner has only replied to the ECIR case, which cannot be equated to participating in the proceedings. In Rajendra Kumar Murarka, the hearing was complete and final orders remained to be passed. The Court also noted the element of personal liberty of a person which was required to be protected. Although, the right of the petitioners before the Court is more to do with the right not to be deprived of property save by authority of law - Article 300A, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all other conditions in the present case. It is also submitted that the 180 days expired on 31st March, 2022; taken from the provisional order of attachment dated 30th September, 2021. Learned counsel appearing for the Directorate of Enforcement, relies on the Supreme Court orders passed in Suo Motu Writ Petition (Civil) No.(S) 3/2020 to urge that by the said orders the limitation period provided in the PMLA also stood extended. Counsel submits that the petitioners, having participated in the process, cannot now seek reliance on the statutory time-limit under the PMLA. Counsel places the object of the PMLA to contend that the Authorities must be at liberty to take all steps with regard to proceeds of crime. After hearing learned counsel, the main issue for adjudication is whether the Enforcement Directorate (ED) can seek refuge under the orders passed by the Supreme Court extending the period of limitation in all general and special laws. The very stand of the ED, as also supported by the material on record, is that the ED has admittedly over-shot the statutory time-limit of 180 days under the PMLA. The provisional order of attachment is of 30th September, 2021 and the no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court on 23rd March, 2020 in the Suo Motu writ petition was to protect litigants/lawyers whose petitions/applications/suits/ appeals and all other proceedings would become time barred by reason of not being able to physically file such proceedings. The Supreme Court held that the order was for the benefit of the litigants who have to take remedy in law as per the applicable statute. As stated above, Prakash Corporates restricted S. Kasi to the facts in that particular case. Therefore, the present position of Judicial precedents is (a) one order of a Co-ordinate Bench holding in favour of the petitioner; (b) one order of Coordinate Bench construing the 180 window in favour of the ED with reference to the Supreme Court order and undisturbed in appeal; (c) one order of a Co-ordinate Bench holding in favour of the petitioner but vacated in appeal and (d) two decisions of the Supreme Court one in favour of the petitioner before the Court and the other decision restricting the application of the former decision. The starting point however remains the order passed by a 3-Judge Bench of the Supreme Court on 23rd March, 2020 in Suo Motu Writ Petition (C) 3/2020. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondone delay) and termination of proceedings. The order dated 10th January, 2022 (relied on by the respondents before this Court) also refers to the object of the first order, i.e. of 23rd March, 2020, in the very first line. The order starts with. In March, 2020, this Court took Suo Motu cognizance of the difficulties that might be faced by the litigants in filing petitions/ applications/ suits/appeals/all other quasi proceedings within the period of limitation prescribed under the general law of limitation or under any special laws (both Central and/or State) due to the outbreak of the Covid-19 pandemic. Paragraph 5 of the said order taking into consideration, the arguments advanced on behalf of the Supreme Court Advocates on Record Association (SCAORA) coupled with the impact of the surge of the pandemic and the adversities faced by litigants in the prevailing conditions (words used by the Supreme Court), the following direction was issued. 5 . (1) The order dated 23.03.2020 is restored and in continuation of the subsequent orders dated 08.03.2021, 27.04.2021 and 23.09.2021, it is directed that the period from 15.03.2020 till 28.02.2022 shall stand excl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the expiry of the period specified in that subsection or on the date of an order made under sub-section (3) of section 8, whichever is earlier. Section 5(3) is a clear embargo on the order of attachment continuing to have effect after the expiry of 180 days. Section 5(1) designates the authority and the steps to be taken for proceeding against any person who is in possession of any proceeds of crime. The section is hence concerned with the procedure to be undertaken for provisional attachment of a property subject to the fulfillment of the other conditions in Section 5. A prescribed procedure after the same has been initiated cannot be equated to institution of a suit or filing of a petition/application which is a starting point of litigation for a person who seeks relief under a statute. The 180 days window in Section 5 contemplates an end-point whereas the Supreme Court in the Suo Motu writ petition sought to protect the starting-point, which was at the risk of being defeated by reason of the pandemic. In other words, what was being protected by the orders of the Supreme Court was the right to remedy, not the right to take away a remedy under a given statute. The respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23rd March, 2020 order in the Suo Motu writ petition was for the benefit of those whose remedy may be barred by time because of not being able to physically come to Court to file proceedings. The Supreme Court made a distinction between the benefit given to litigants and extension of time for filing of a chargesheet by the police as contemplated under Section 167(2) of the Cr.P.C. The Court also noted the element of personal liberty of a person which was required to be protected. Although, the right of the petitioners before the Court is more to do with the right not to be deprived of property save by authority of law - Article 300A, the petitioners have established a case where such right is under threat by the action of the ED. The litigants have been conferred a benefit under Section 5(1)(b) and 5(3) of the PMLA on the failure of the Authority to take action within the specified time frame. If the Authority does fail to take requisite steps, the right to relief arises immediately after exhaustion of the 180 days window and once such right is given to a litigant, it cannot be taken away. This Court is therefore of the considered view that the petitioners are entitled to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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