Let Us See Whether It Is An Appeal In Disguise: Apex Court While Adjourning Review Petitions Against 2022 PMLA Judgment

The Supreme Court, while adjourning the petitions seeking review of the landmark judgment in Vijay Madanlal Choudhary and Others vs. Union of India and Others (2022), has raised a question of whether the review petition filed is an appeal in disguise.

One Review Petition was filed by Karti P Chidambaram seeking a review of the judgment which upheld several provisions of the Prevention of Money Laundering Act, 2002 relating to the power of arrest, attachment and search and seizure conferred on the Enforcement Directorate.

The Bench of Justice Surya Kant, Justice CT Ravikumar and Justice Ujjal Bhuyan adjourned the matter for a further date.

During the hearing, Justice CT Ravikumar said, "There cannot be any doubt that it is a review petition. So in a review petition, can you say that the judgment gravely erred... as it will partake the character of an appeal, therefore, the question is, what are the parameters of the review petition? Let us see whether it is an appeal in disguise or a review because the matter came up before a three-judge bench...definitely it is open, now that it is in open court."

Senior Advocate Kapil Sibal on behalf of the Review Petitioners submitted, "My respectful submission is once a review is in open court, we are entitled to persuade Your Lordships..."

Justice Kant said, "We will give ample time to both sides."

Sibal also submitted that they have filed an affidavit in which all issues they think have been wrongly decided are there.

Solicitor General Tushar Mehta appeared for the Enforcement Directorate along with Additional Solicitor General SV Raju.

Senior Advocates Dr AM Singhvi and Menaka Guruswamy also appeared for the Petitioners.

The judgment was delivered by the Bench of Justice A.M. Khanwilkar, Justice Dinesh Maheshwari and Justice C.T. Ravikumar on July 27, 2022, holding that the expression “proceedings” occurring in Clause (na) of Section 2(1) of the 2002 Act is contextual and is required to be given expansive meaning to include inquiry procedure followed by the Authorities of ED, the Adjudicating Authority, and the Special Court. Further, the Court upheld the constitutionality of the provisions under Sections 5, 8(4), 15, 17 and 19 of the Act and also upheld the burden of proof under Section 24 of the Act.

As regards "twin condition", the Court had held, "The reasons which weighed with this Court in Nikesh Tarachand Shah706 for declaring the twin conditions in Section 45(1) of the 2002 Act, as it stood at the relevant time, as unconstitutional in no way obliterated the provision from the statute book; and it was open to the Parliament to cure the defect noted by this Court so as to revive the same provision in the existing form...We are unable to agree with the observations in Nikesh Tarachand Shah707 distinguishing the enunciation of the Constitution Bench decision in Kartar Singh708; and other observations suggestive of doubting the perception of Parliament in regard to the seriousness of the offence of money-laundering, including about it posing serious threat to the sovereignty and integrity of the country."

Accordingly, the matter has been adjrouned for hearing on August 28.

Cause Title: Karti P Chidambaram v. The Directorate of Enforcement (R.P.(Crl.) No.219/2022)