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2017 DIGILAW 985 (ORI)

Aries Mineral Pvt. Ltd. v. Adjudicating Authority

2017-09-05

S.K.MISHRA

body2017
JUDGMENT : S.K. Mishra, J. This is the second journey of the petitioners to this Court. In W.P.(C) No. 7851 of 2017 disposed of on 11.5.2017, the petitioners challenged the initiation of the adjudication proceeding pursuant to the show cause notice dated 19.4.2017 issued by opposite party no.1 under Section 8 of the Prevention of Money Laundering Act, hereinafter referred to as “PML Act, 2002”, for brevity, calling upon the petitioners to appear before him and show cause as to why the provisional order of attachment dated 27.3.2017 passed by the Joint Director, Directorate of Enforcement (PMLA) under Section 5(1) of the PML Act, 2002 should not be quashed. In that writ application, the point of essence raised challenging the initiation of the proceeding as afore-stated on the ground that the proceeding under the PML Act, 2002 is a parallel civil proceeding based upon the allegations made in the FIR by the Vigilance Department in Cuttack Vigilance P.S.Case No. 37 dated 2.6.2010 and the charge-sheet No.17 dated 14.9.2015 submitted therein. The petitioners further assert that the proceeding being a civil proceeding and the substantive criminal proceeding initiated by the State Vigilance being pending before a competent court having jurisdiction to try criminal cases and without registration of any complaint against him under the PML Act, 2002, is hit by Article 20(3) of the Constitution of India and in essence the petitioners prayed that the petitioner no.2 cannot be compelled to give evidence against himself. So, the petitioners contended that as per several rulings of the Hon’ble Supreme Court, a person cannot be compelled to give evidence against himself and filing show cause in civil proceeding like the proceeding under the PML Act, 2002 will be used as evidence against him in the criminal proceeding. The aforesaid writ application was disposed of by this Court on 11.5.2017 by a speaking order. The operative portion of the order appears at para-10 of the said order. The aforesaid writ application was disposed of by this Court on 11.5.2017 by a speaking order. The operative portion of the order appears at para-10 of the said order. It is appropriate to quote the same: “10.Such being the settled principle of law regarding causing prejudice against an accused by divulging a defence plea even prior to the framing of charges, this Court is of the opinion that instead of staying the further continuance of the proceeding, it will be expedient to allow the petitioner to file an application before the opposite party no.1 ventilating his grievance with respect to the contentions raised by him and to direct the opposite party no.1 to consider this matter in the light of the observations made by this Court in the proceeding paragraphs and to take a decision whether to continue with the proceeding or to keep the same in abeyance till a particular stage in the criminal trial is achieved. This Court is of the opinion that the Enforcement Directorates are manned by very Senior Officers, experts and knowledgeable officers and if the petitioner makes his grievance before such a forum, then his grievance can be considered and disposed of as per law. However, this Court further directs that till a decision is taken by opposite party no.1, the petitioner should not create any 3rd party interest of the property attached even after expiry of 180 days. He is given liberty to present a properly articulated petition before the opposite party no.2 within 21 days and on such event, opposite party no.2 shall act upon production of certified copy of this order. With the aforesaid observation, the writ application is disposed of.” Thereafter, the application filed by the petitioner before the Adjudicating Authority was rejected on 15.6.2017 by opposite party No.1 in O.C.No. 722 of 2017. In the said order opposite party no.1 rejected the petitioners’ application to keep the civil proceeding in abeyance for confirmation of the provisional order of attachment during pendency of the trial. Such order is impugned in this writ application. 2. In the said order opposite party no.1 rejected the petitioners’ application to keep the civil proceeding in abeyance for confirmation of the provisional order of attachment during pendency of the trial. Such order is impugned in this writ application. 2. It may be stated that like the case of the present petitioners, some other applications were also considered by this Court and almost similar order was passed in all the writ applications except in one case where stay order has been passed on the ground that the offence that has been allegedly committed was prior to coming into force of the Amendment Act to the PML Act, 2002. In the matter of Bharat Bhusan Swain v. The Adjudicating Authority and others, W.P.(C) No. 9141 of 2017, similar orders were passed as was passed in W.P.(C) No. 7851 of 2017. However, the said Bharat Bhusan Swain preferred appeal before the Division Bench of this Court, which was registered as Writ Appeal No.140 of 2017. The essential objection raised in that case was also regarding the use of the show cause filed by the petitioner before the Adjudicating Authority in evidence against him. Though specifically it was not pleaded that Article 20(3) of the Constitution of India is violated thereby, this Court understand that the same principle is argued though in a different manner relying upon different provisions of the PML Act, 2002. The writ appeal has been dismissed in the meantime by order dated 22.8.2017. It is apposite to quote the exact order passed by the Division Bench of this Court presided over by the Hon’ble Chief Justice of this Court. “11. Mr.S.Acharya, learned counsel appearing for the appellant does not dispute the forums available under the Statute against final order of attachment passed by the adjudicating authority. But the sole grievance lies that in the event of filing of show cause and disclosing the defence before the adjudicating authority, which may be utilized against the appellant in the criminal trial pending before the appropriate criminal courts, there is every likelihood of utilizing the same against him, which will cause prejudice to the appellant. 12. In response to the above submission of the learned counsel for the appellant, Shri A.K.Bose, learned Asst. 12. In response to the above submission of the learned counsel for the appellant, Shri A.K.Bose, learned Asst. Solicitor General appearing for the Union of India contended that the proceedings before the adjudicating authority are summary in nature and confined to the provisions of the PML Act, 2002 where only prima facie findings are to be recorded and he has thus submitted that the findings arrived at by the adjudicating authority will have no binding effect on the criminal courts trying the case against the appellant. 13. In view of the aforesaid facts of the case and the submission made by Shri A.K.Bose, as aforesaid, since the findings which may be recorded by the adjudicating authority would be prima facie findings under the provisions of the PML Act, 2002, we may observe that the same would not have any binding effect on the trial court, which would try the case/charges against the appellant in the criminal case under the provisions of the Code of Criminal Procedure.” 3. In that view of the matter, this Court is of the opinion that there is no further issue to be decided and the writ application can be disposed of with the observation that the findings, which may be recorded by the adjudicating authority, would be prima facie the findings under the provisions of the PML Act, 2002 and the same would not have any binding effect on the trial court, which would try the case/charges against the appellant in the criminal case under the provisions of the Code of Criminal Procedure. I shall add another stipulation in this observation that since the civil proceeding is separate and distinct proceeding, the show cause filed by the petitioners or evidence led by the petitioners before the adjudicating authority will be in no way used by the prosecuting agency against the petitioners in the criminal trial pending before the learned Vigilance Judge. 4. However, this Court hastens to add that the petitioners should file their show cause before the adjudicating authority within a period of 15 days. 5. Another aspect of the case is that the learned Asst. 4. However, this Court hastens to add that the petitioners should file their show cause before the adjudicating authority within a period of 15 days. 5. Another aspect of the case is that the learned Asst. Solicitor General submitted that the provisional attachment is valid for 180 days and in the meantime since substantial time has elapsed during the pendency of this writ application and the earlier writ application, the said time should not be counted while calculating 180 days as stipulated in Section 5(1) of the PML Act, 2002. In other words, the entire period for which the two writ applications filed by the petitioners were pending before this Court till the disposal of the writ applications and 15 days given to the petitioners to file the show cause shall be excluded while calculating 180 days as envisaged in the aforesaid provision. 6. With such observation, the writ application is disposed of. The interim order passed earlier stands vacated. However, there shall be no orders as to costs.