THE HIGH COURT OF SIKKIM : GANGTOK (Criminal Extraordinary Jurisdiction) ------------------------------------------------------------------------------- SINGLE BENCH: THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE ----------------------------------------------------------------------------------------------------------------- I.A. No. 03 of 2022 Arising out of W.P. (Crl.) No. 02 of 2015 Eastern Institute for Integrated Learning In Management University through the Vice Chancellor, 8th Mile, Budang, Malbassey, West Sikkim-737121. ..... Petitioner Versus 1. The Joint Director, Directorate of Enforcement Government of India, CGO, Complex, 3rd MSO Building, 6th Floor, DF Block, Salt Lake, Kolkata-Pin No. 700064. 2. The Enforcement Officer, Directorate of Enforcement Government of India, CGO, Complex, 3rd MSO Building, 6th Floor, DF Block, Salt Lake, Kolkata-Pin No. 700064. 3. The Registrar/Administrative Officer, Adjudicating Authority, Jeevan Deep Building, Room No. 26, 4th Floor, Parliament Street, New Delhi, Pin No.110001. ...Respondents/Applicants The application for modification/clarification of the judgment order dated 22.09.2015 in W.P. (Crl.) No. 02 of 2015 passed by this Court. ------------------------------------------------------------------------------- Appearance: Mr. Shakeel Ahmed, Advocate for the Petitioner. Ms. Sangita Pradhan, Deputy Solicitor General of India assisted by Ms. Natasha Pradhan and Ms. Purnima Subba, Advocates for Respondents/Applicants. ------------------------------------------------------------------ Date of hearing : 27.06.2023 Date of judgment : 27.06.2023 2 I.A. No. 03 of 2022 Arising out of W.P. (Crl.) No. 02 of 2015 Eastern Institute for Integrated Learning in Management University vs. The Joint Director, Directorate of Enforcement & Ors. O R D E R (O R A L)
Bhaskar Raj Pradhan, J.
1. A judgment dated 22.09.2015 was rendered by the
learned Single Judge of this Court in W.P. (Crl.) No. 02 of 2015
filed by Eastern Institute for Integrated Learning in
Management University (EIILM University) against the Joint
Director and the Enforcement Officer, Directorate of
Enforcement, Government of India and the
Registrar/Administrative Officer, Adjudicating Authority.
2. EIILM University had prayed for setting aside the show
cause notice dated 03.02.2015 issued by the Adjudicating
Authority under sub-section (1) of section 5 of the Prevention of
Money Laundering Act, 2002 (PMLA, 2002) and the subsequent
proceedings consequential thereto.
3. The principal ground seeking to quash the show cause
notice under section 8 of the PMLA, 2002 by the Adjudicating
Authority was that it was issued by a Bench constituted under
clause (b) of sub-section (5) of section 6 of the PMLA, 2002
which did not have a Judicial Member.
4. The learned Single Judge after hearing all the parties
to the writ petition and examining sub-section (1), (2) and (3)
and clause (a) and (b) of sub-section (5) of section 6 of the
PMLA, 2002 was of the considered opinion that in a case where
serious question of law and fact arise, as in the case before him, 3 I.A. No. 03 of 2022 Arising out of W.P. (Crl.) No. 02 of 2015
Eastern Institute for Integrated Learning in Management University vs.
The Joint Director, Directorate of Enforcement & Ors.
it is essential that one of the members of the Bench constituted
under clause (b) of sub-section (5) of section 6 of the PMLA,
2002 by the Chairperson of the Adjudicating Authority should
be a Judicial Member.
5. In the circumstances, the learned Single Judge issued
the following directions to the Directorate of Enforcement (i) to
take appropriate steps with the concerned authorities of the
Central Government for appointment of Judicial Member of the
Adjudicating Authority urgently within a period of three months
and not later than that; (ii) on appointment of the Judicial
Member the Chairman of the Adjudicating Authority to
constitute the Bench consisting of a Judicial Member keeping in
view the observations made having regard to the nature of the
lis and the anxiety expressed by EIILM University; (iii) soon after
it is constituted, the Bench to then issue notice upon the EIILM
University who shall appear before the Bench and place before
it all grievances expressed in the petition; and (iv) since the
proceedings before the Adjudicating Authority was stayed by
this Court by order dated 02.04.2015, the period of attachment
prescribed under sub-section (1) of section 5 to exclude the
period spent during the pendency of the case before this Court.
6. An application for modification/clarification of the
judgment dated 22.09.2015 passed by this Court has been filed
by the Joint Director, Directorate of Enforcement on 08.11.2022
after nearly eight years. The applicant prays for clarification as 4 I.A. No. 03 of 2022 Arising out of W.P. (Crl.) No. 02 of 2015
Eastern Institute for Integrated Learning in Management University vs.
The Joint Director, Directorate of Enforcement & Ors.
to whether Member (Judicial) and Member from the field of Law
of the Adjudicating Authority under section 6 (3) (a) (ii) of PMLA,
2002 are the same?
7. The application states that pursuant to the judgment
dated 22.09.2015 of this Court and in compliance thereto file
was moved for reconstitution of Bench of the Adjudicating
Authority with the appropriate Ministry of Finance and it was
learnt that the Central Government has published a Notification
issued vide Gazette of India dated October, 03-09, 2015 for
appointment of Shri G.C. Mishra as Member from the field of
Law w.e.f. 07.09.2015 having qualified for appointment as
member from the field of Law as mandated under section 6 (3)
(a) (ii) of PMLA, 2002.
8. It is further stated that the Bench of the Adjudicating
Authority was reconstituted on 05.10.2015 with Shri Mukesh
Kumar as Chairpeson and Shri G.C. Mishra, Member from the
field of Law. Thereafter, the case was fixed for hearing on
14.10.2015 in respect of EIILM University. The Adjudicating
Authority vide its order dated 01.12.2015 confirmed the
attachment order dated 09.01.2017.
9. This order of the Adjudicating Authority was
impugned before the Appellate Tribunal. The Appellate Tribunal
vide its Order dated 09.03.2017 remanded the matter for
rehearing by Adjudicating Authority having Member (Judicial) 5 I.A. No. 03 of 2022 Arising out of W.P. (Crl.) No. 02 of 2015
Eastern Institute for Integrated Learning in Management University vs.
The Joint Director, Directorate of Enforcement & Ors.
on the Bench in compliance of the judgment dated 22.09.2015
of this Court.
10. It is stated that the Adjudicating Authority with Shri
Tushar V. Shah, Member from the field of Law heard the matter
and again confirmed the attachment vide its order dated
26.05.2017.
11. An appeal was filed by the EIILM University before
the Appellate Tribunal against the order dated 01.12.2015 and
the Adjudicating Authority vide its combined order dated
15.06.2017 while disposing six appeals filed against the order
dated 01.12.2015 in O.C. No. 409 of 2015 and order dated
03.03.2015 in O.C. No. 381 of 2014 remanded the two
provisional attachment orders to the Adjudicating Authority
holding that this Court had directed the matter to be decided by
Member (Judicial) appointed under section 6 (3) (a) of PMLA,
2002 who has to be a District Judge and the Government has
not appointed Judicial Member as directed by this Court.
12. According to the applicant since then the provisional
attachment orders are kept in abeyance and status quo has
been maintained.
13. It is also stated that the appeal before this Court
against the order dated 15.06.2017 passed by the Appellate
Authority was rejected on the ground of delay. 6
I.A. No. 03 of 2022 Arising out of W.P. (Crl.) No. 02 of 2015
Eastern Institute for Integrated Learning in Management University vs.
The Joint Director, Directorate of Enforcement & Ors.
14. The application as well as the learned Deputy
Solicitor General of India appearing for the applicant argues
that section 6 (3) (a) of the PMLA, 2002 does not mention
Judicial Member and therefore, it is not the mandate of section
6 (3) (a) of PMLA, 2002 to have a Judicial Member.
15. Referring to the judgment of the Supreme Court in B.
Premanand & Ors. Vs. Mohan Koikal & Ors. 1 it is submitted
that the literal reading of interpretation really means that there
should be no interpretation. In other words, we should read the
statute as it is, without distorting or twisting its language.
Thus, it is submitted that the judgment passed by this Court on
22.09.2015 is required to be modified to make the necessary
clarification.
16. The learned Deputy Solicitor General of India orally
submits that this court could invoke the provisions of section
482 of the Code of Criminal Procedure, 1973 (Cr.P.C.) to make
the necessary amendments.
17. Section 482 Cr.P.C. saves the inherent powers of the
High Court. It provides that nothing in the Cr.P.C. shall be
deemed to limit or affect the inherent powers of the High Court
to make such orders as may be necessary to give effect to any
order under it, or to prevent abuse of the process of any Court
or otherwise to secure the ends of justice. It is settled law that
1 (2011) 4 SCC 266 7 I.A. No. 03 of 2022 Arising out of W.P. (Crl.) No. 02 of 2015
Eastern Institute for Integrated Learning in Management University vs.
The Joint Director, Directorate of Enforcement & Ors.
the extraordinary power under section 482 have to be exercised
sparingly, carefully and with caution and only when such
exercise is justified by the tests specifically laid down in the
section itself.
18. A reading of the judgment dated 22.09.2015 makes it
evident that it was precisely the case of the petitioner that the
constitution of the Bench without a Judicial Member was not
proper. This lis was contested by the parties including the
present applicant and by a reason judgment the lis was decided
by the learned Single Judge. Evidently and admittedly this
judgment dated 22.09.2015 has not been appealed against.
19. The Supreme Court in numerous judgments has
held very clearly that such practice of filing application for
modification/clarification of judgment rendered must be
deprecated as in actual what it seeks is a review or revision of
the judgment which is not permissible.
20. In Indian Council for Enviro-Legal Action vs. Union
of India2 the Supreme Court examined whether a final
judgment of the Supreme Court could be reopened by merely
filing interlocutory applications. It was held that a final
judgment cannot be reopened by merely filing interlocutory
applications where all possible legal remedies have been fully
exhausted. In the case before the Supreme Court two
interlocutory applications had been filed after the Supreme
2 (2011) 8 SCC 161 8 I.A. No. 03 of 2022 Arising out of W.P. (Crl.) No. 02 of 2015
Eastern Institute for Integrated Learning in Management University vs.
The Joint Director, Directorate of Enforcement & Ors.
Court had pronounced the judgment. It was held that
permitting the parties to reopen the concluded judgments by
filing repeated I.As is clearly an abuse of the process of law and
would have a far reaching adverse impact on the administration
of justice.
21. Recently in Ghanashyam Mishra & Sons Pvt. Ltd.
vs. Edelweiss Asset Reconstruction Company Limited3 the
Supreme Court dismissed an interlocutory application filed for
clarification of the judgment and order dated 13.04.2021 passed
in Civil Appeal No.8129 of 2019 with cost of Rs.10 lakhs holding
that such applications are a total abuse of the process of law
while taking note of the fact that there is a growing tendency of
indirectly seeking review of the orders of the Supreme Court by
filing application either seeking modification or clarification of
the orders passed by it. It was held that the valuable time of
Court is spent in deciding such applications which time would
otherwise be utilized for attending litigations of the litigants who
are waiting in the corridors of justice for decades together.
22. It was open for the applicant to have preferred a
review petition before the learned Single Judge or an appeal
before the Division Bench of this Court or even a Special Leave
Petition before the Supreme Court against the judgment dated
22.09.2015 within the prescribed time if they were not satisfied
with it. However, the applicant chose not to do so for almost
3 2022 LiveLaw (SC) 771 9 I.A. No. 03 of 2022 Arising out of W.P. (Crl.) No. 02 of 2015
Eastern Institute for Integrated Learning in Management University vs.
The Joint Director, Directorate of Enforcement & Ors.
eight years. The application in fact states that it sought to
comply with the judgment dated 22.09.2015. The present
application for modification/clarification is evidently a device to
persuade this Court to revisit, reopen and reverse the judgment
dated 22.09.2015. This is clearly impermissible. Even if this
Court was to consider the application for
modification/clarification as one filed under Section 482 Cr.P.C.
which is the inherent power of this Court to prevent abuse of
the process of any Court or otherwise to secure the ends of
justice it cannot come to aid a litigant to abuse the process of
administration of justice.
23. The application is dismissed.
( Bhaskar Raj Pradhan ) Judge Approved for reporting : Yes Internet : Yes to/