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TMI Blog2023 (11) TMI 618X X X X Extracts X X X X X X X X Extracts X X X X ..... Division Bench of this Court. This writ petition was disposed of as withdrawn with liberty to pursue such remedies as available in law. Under these circumstances, the applicants had filed their applications for returning the properties mentioned in their applications in lieu of fixed deposit. 3. Learned Special Court (PMLA), Indore after considering the contents of applications and analyzing the provisions of Prevention of Money Laundering Act, 2002 (hereinafter referred to as 'PMLA, 2002') ordained for releasing the properties in lieu of fixed deposit of Rs. 7.02 crores. Being aggrieved by this impugned order, the present petitioner has been filed by the learned counsel for the Directorate of Enforcement Department. 4. In brief, the contentions of petition and arguments of counsels for the petitioner are that the case was registered vide ECIR/INSZO/2/2014 by the Directorate of Enforcement for the offence committed under Sections 120-B, 419, 420, 467 and 471 of IPC which are being scheduled offences under the PMLA, 2002. It is alleged that Investigation confirms that Dr. Vinod Bhandari invested the illegal money earned through malpractices in PMT-2012 & Pre PG Exam-2012, in vari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intainability. In addition to that, learned counsel for the respondents has also contended on merits of the case and submitted that the order of learned Special Court has been passed within the jurisdiction and in accordance with provision of PMLA, 2002. Learned counsel for the respondents, relying upon various citations of Hon'ble Supreme Court and other High Courts, expostulated that since the order is correct in view of the law and facts of the case, this revision petition being devoid of merits, deserves to be dismissed and requested for dismissal of the revision petition. 7. In view of the aforesaid contentions and rival submissions, the point for determination is as under :- (i) whether this revision petition is liable to be dismissed on the basis of non-maintainability as the impugned order is an interlocutory order ? (ii) If not, as to whether, the impugned order passed by the learned Special Court is suffering from infirmity, illegality and impropriety ? 8. On the issue regarding interlocutory order, Shri Himanshu Joshi, learned counsel for the Directorate of Enforcement Department submitted that the order passed by the Special Court is final in nature, as the proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt. The revision against that order was dismissed on the basis of non-maintainability. In that case, no allegations regarding violation of respective Acts and passing order without jurisdiction was made while in this case, the petitioner has challenged the order on the basis of violation of the Act. Hence, no benefit can be afforded to the respondents by the aforesaid citation. 11. Learned counsel for the respondents is also placing reliance upon the judgment of Shyam Tiwari Vs. State of M.P., 2021 SC OnLine MP 2671. The case relates to the offences punishable under Sections 420, 120-B and 409 of IPC and Section 13(1) of the Prevention of Corruption Act, the trial Court has declared the prosecution witness hostile and photocopy of audit report was taken as evidence. The Division Bench of this Court rejected the revision as not maintainable in the light of the bar under Section 397(2) of the Cr.P.C. The facts of this case, are absolutely different to the case at hand. Hence, no benefit can be given to the respondents at this stage. 12. Learned counsel for the respondents further placed reliance upon the judgment of Manish Vs. State of Madhya Pradesh, 2023 SC OnLine MP 909, in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this, the petitioner contended that if the order under challenge culminates the criminal proceedings as a whole or finally decides the rights and liabilities of the parties is not interlocutory in spite of the facts that it was passed during any interlocutory stage. 16. Having gone through the aforesaid principles laid down by Hon'ble Apex Court and also High Court, it emerges that if the order is finally deciding the rights and liabilities of the parties, even, in an interim stage, it will be treated as final order and revision against that order lies. In this case, the petitioner has also challenged the order on the basis of violation of PMLA, 2002 and also passing the order without jurisdiction. On this aspect, I want to quote the view of Hon'ble Constitutional Bench of Apex Court taken in Mohanlal Maganlal Thakre Vs. State of Gujarat, AIR 1968 SC 733. In the para 6 of the judgment, Hon'ble Apex Court endorsing another judgment held as under :- The decision in Ramesh v. Patni SCR 198 (2) would seem to throw light on these questions. There the Claims Officer under the Madhya Pradesh Abolition of Proprietory Rights Act, 1950 (1) [1964]7S.C.R.734. It is held in an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be final. 17. In view of the aforesaid verdict, it is crystal clear that if the jurisdiction is challenged, the order will be considered as final. On this aspect, the law laid down in the judgment of Praveen Kumar Vs. State of Himachal Pradesh, 1989 CRLJ 2537, is also pertinent to mention here. The relevant para 8 of the judgment is mentioned below :- 8. An application under Section 451 Cr. P.C. has to be decided by the Court after hearing the parties seeking the release of the property in question. The parties are allowed to adduce evidence and it is only after hearing them that the Court passes the order thereby giving the custody of the property to one of them who may be adjudged by the Court to be best entitled for the same. To say that such an order is revisable by the Court on the termination of the proceedings or in between is no reason to call the order interlocutory order. Till such an order is made, it is final between the parties and the Magistrate cannot arbitrarily or without proper justification change the same during the course of the proceedings. The argument of the petitioner that such an order becomes final on the termination of the proceedings cannot be acce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts Private Limited and Anr., (Special Leave to Appeal No. 9335/2022 decided on 16.09.2022). In this case, Hon'ble the Apex Court passed the order of provisional attachment in lieu of fixed deposit of Rs. 3 crores. This order was passed by Hon'ble Apex when the petitioner approached the High Court challenging the order of attachment as the Appellate Authority was not available whereas, in the case at hand, the orde+r was passed by the learned Special Judge not by Appellate Authority. Likewise, he has also placed reliance upon the judgment Veerbhadrappa G.E. Vs. State of Karnataka & Ors, (Writ Petition (s)(criminal) No(s) 124/2023 decided on 21.07.2023). In this regard, para 5 of the order is worth referring here :- 5. Enforcement Directorate also passed an order dated 29.06.2018 for provisional attachment of various properties including properties involving third party interest as disproportionate assets alleged in the CBI Case. Appeal filed by the petitioners against confirmation of attachment of disproportionate assets by the Enforcement Directorate is pending before the PMLA Tribunal. The pleadings further go to show that one of the properties under attachment situate i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed criminal case and others applicants are his relatives. Then, at this stage, it cannot be presumed that they have acted in good faith and have suffered a quantifiable loss as a result of the offence of Money-laundering despite having taken all reasonable precautions. Since, Dr. Vinod Bhandari himself is an accused, he cannot be treated as 'claimant'. In view of the aforesaid definition enshrined under Rule 2(b) of PMLA Rule 2016. The respondents at this stage also cannot satisfy the first proviso of Section 8(8) of PMLA, 2002. 27. So far as the words 'such manner as may be prescribed' is concerned, the manner is also predicated under Section 3 and 3A of PMLA Rule, 2016, it would be condigned to quote these rules as under :- 3. Manner for restoration of confiscated property. - (1) The Special Court, within forty-five days from the date of passing the order of confiscation under sub-section (5) section 8 of the Act in respect of property, shall cause to be published a notice in two daily newspapers, one in English language and one in vernacular language, having sufficient circulation in the locality where the property is situated calling upon the claimants, who c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... restoration of the property referred in sub-rule (1) before the Special Court beyond thirty days from the date of publication of the notice referred to in that sub-rule: Provided that the Special Court may entertain any claim not exceeding further thirty days, upon the satisfaction that the claimant was prevented by sufficient cause. (4) No restoration order shall be passed by the Special Court under this rule, without giving an opportunity of being heard to the owner of the property referred to in sub-rule (1) or in the event of his death, the legal representatives of such person or official assignee or official receiver, as the case may be.] 28. The learned Special Judge, in impugned order, has not mentioned anything with regard to the said manner specified in the Rules 3 and Rule 3A of PMLA Rule, 2016. Likewise, learned Special Judge has not clarified as to how the applicant coming into purview of definitions of 'claimants' mentioned in Rule 2(b) of PMLA Rule, 2016 and first proviso of Section 8(8) of the PMLA, 2002. Virtually, the impugned order is a sear violation of the respective provisions of PMLA, 2002 and PMLA Rule, 2016. 29. In the wake of the foregoing obs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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