TMI Blog2023 (11) TMI 618X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Thus, it can be safely held that the impugned order has been passed by the Special Judge without proper appreciation of the provisions of PMLA, 2002 and the PMLA Rule, 2016. As such, this order is suffering from gross infirmity and illegality. As a result thereof, this revision petition is allowed. - Hon'ble Shri Justice Prem Narayan Singh For the Petitioner : Shri Himanshu Joshi, Dy. Solicitor General For the Respondents : Shri Manu Maheshwari, Advocate ORDER 1. The petitioner has preferred this revision being crestfallen by the order dated 13.06.2023 passed by Special Judge (PMLA), Indore in S.C./1924/2018, whereby the learned Special Court allowed the applications of applicants for releasing of property in lieu of fixed deposit. 2. Succinctly, the facts of the case are that the Adjudicating Office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dure, 1973 are not applicable to this case. In this regard, Sections 65 and 71 of the PMLA, 2002 are applied. Since, the provisions of attachment and confiscation or contained in the act, no order can be passed by the Special Court, in this regard. Section 71 clearly predicates that the provision of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. It is demurred that in view of Section 5 of PMLA, 2002, the substitute application at the first instance required to be filed before the authorized office. Thus, the Special Court was not the appropriate forum at this stage. As such learned Special Court has passed the order in violation of the provisions of Section 8 of PMLA, 2002 read with Section 5(5) of the Prevention of Money Laundering (Taking Possession of Attached or frozen properties confirmed by the adjudicating authority), Rules, 2013 where the immovable property confirmed by the Adjudicating Authority is in the form of a land, building, house, flat etc. and is under joint ownership. Hence, the order of Special Court is not sustainable in the eyes of law and facts and thus, the same is liable to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vs. State Anr., (1977) 1 SCC 169 , wherein, it is held that the question as to whether the order is final order or interlocutory, must be judged from the point of view of the persons seeking revision. In this case, the learned metropolitan Magistrate summoned the petitioner under Section 94 of the Code of Criminal Procedure, 1973 to attend the Court and make statements on oath that he is not in the possession of the documents summoned. The order was challenged by the petitioner and the revision of this order has been dismissed by the Additional Sessions Judge and the High Court and thus, she has approached to Hon'ble Apex Court. Since the order of Magistrate was not according to law and adversely affecting the petitioner, the appeal was allowed by Hon'ble Apex Court. Now, coming to the case at hand the petitioner is challenging the order of the learned Special Court alleging that the order passed in contravention of PMLA, 2002. Hence, even in view of aforesaid law laid down by Hon'ble Apex Court, this impugned order cannot be assumed as interlocutory order. 10. Learned counsel for the respondents has also relied upon the judgment Aruni Sahgal Vs. State of M.P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty, therefore, it would be treated as final order. 13. Counsel for the respondents also placing reliance upon the judgment of K. Basha Vs. State, MANU/TN/0211/2012 , the Magistrate has returned the application placed before him under Section 451 and 457 of Cr.P.C. on the basis of that the property was not produced before him. Virtually, the facts of this case, are also different to the facts of the case at hand. 14. In this context, learned counsel for the respondents also placed reliance upon another case Central Bank of India Vs. Directorate of Enforcement and 2 others passed on 06.09.2016 in Criminal Revision No. 947/2014. Certainly, this case is related to Directorate of Enforcement and in this case, the applicant filed an application under Section 453 of Cr.P.C. that the petitioner is entitled to the possession of cash amount of Rs. 2,55,82,159/- and learned Sessions Judge dismissed the petition. Hon'ble Single Bench of this Court, after considering the provision of Section 65 of Cr.P.C. allowed the revision and ordained that the Special Judge can exercise the power of disposal of the property. The aforesaid citation is itself an example that the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order be-cause it did not decide the controversy between the parties and did not of its own force affect the rights of the parties or put an end to the controversy. This court observed: (1) that the word 'proceeding' in Art. 133 was a word of a very wide import, (2) that the contention that the order was not final because it did not conclude the dispute between the parties would have had force if it was passed in the exercise of the appellate or revisional jurisdiction of the High Court, as an order of the High Court if passed in an appeal or revision would not be final if the suit or proceeding from which there was such an appeal or revision remained still alive after the High Court's order, (3) but a petition under Art. 226 was a proceeding independent of the original controversy between the parties; the question therein would be whether a proceeding before a Tribunal or an authority or a court should be quashed on the ground of want of jurisdiction or on other well recognised grounds and that the decision in such a petition, whether interfering or declining to interfere, was a final decision so far as the petition was concerned and the finality of such an order coul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d view was endorsed in the commentary of Criminal Procedure Code, 1973 written by Acharya Dr. Durgadas Baso . The following paragraphs in IV Addition 2010 Page 2057, is worth referring here :- 15. Revision -Even though the order under Section 451 may be of a temporary duration, it cannot be said to be interlocutory ; at any rate it would be open to revision where it is without jurisdiction. 19. On this aspect, the view of Hon'ble High Court in the case of Pankaj Mehta Vs. State of Madhya Pradesh, 1989 MPLJ 290 is also poignant to point out, Hon'ble Bench relying upon Mohanlal (Supra), elucidated that the order passed by Magistrate allowing an application of the accused for interim custody of the property, is not an interlocutory order and revision lies against it. 20. On going through the aforesaid analysis in entirety, it is explicitly evident that the order passed by the Courts regarding handing over the custody of property would be considered as final order since they are finally adjudging the possession of the property. However, when the order is challenged on the basis of violation of law, without applying proper procedure and passed without jurisdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts by the aforesaid verdict. 23. Now, considering the legality of the order, having gone through the whole order, it seems that the order was mainly based on second proviso of Section 8(8) of PMLA, 2002, which is reproduced below :- Provided further that the Special Court may, if it thinks fit, consider the claim of the claimant for the purposes of restoration of such properties during the trial of the case in such manner as may be prescribed. 24. Now, the word 'claimant' is required to be defined. On this aspect first proviso of Section 8(8) of PMLA, 2002, is also worth considering, which is as under :- Provided that the Special Court shall not consider such claim unless it is satisfied that the claimant has acted in good faith and has suffered the loss despite having taken all reasonable precautions and is not involved in the offence of money laundering: 25. In view of the aforesaid proviso, the question arises that who is a ' claimant ' and what is ' such manner as may be prescribed '. On this aspect, the Prevention of Money-Laundering (Restoration of Property) Rules, 2016 (hereinafter referred to as 'PMLA Rule, 2016') is require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Court may entertain any claim not exceeding further thirty days, upon the satisfaction that the claimant was prevented by sufficient cause. [3A. Manner of restoration of property during trial. - (1) The Special Court, after framing of the charge under section 4 of the Act, on the basis of an application moved for restoration of a property attached under sub-section (1) of section 5, or, seized or frozen under section 17 or section 18 of the Act prior to confiscation, if it thinks fit, may, for the purposes of the second proviso to subsection (8) of section 8 of the Act, 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 such property is situated calling upon the claimants, who claim to have a legitimate interest in such property or part thereof, to submit and establish their claims, if any, for obtaining restoration of such property or part thereof. (2) When the property referred to in sub-rule (1) is insufficient to meet the loss suffered by the claimant as a result of the offence of money-laundering, the Special Court, as it thinks fit, may pass an order of r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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