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Adverting carefully to the tactical and enthralling contentions raised at the Bar and on perusal of the available records, it is apparent that the Enforcement Directorate was not made a party to the Interim Application No.01 of 2013 filed before the Designated Court by the State of Odisha but during pendency of such proceeding, on the basis of Original Complaint under section 5 (5) of the 2002 Act filed by the Joint Director, Directorate of Enforcement before the Adjudicating Authority under the 2002 Act, New Delhi in O.C. No. 411 of 2015, the provisional attachment of the properties of the petitioners has been confirmed vide order dated 01.06.2015 wherein it is further held that the order shall continue during the pendency of the proceedings relating to any offence under the 2002 Act before Court or under the corresponding law of any other country, before the competent Court of criminal jurisdiction outside India as the case may be and become final after an order of confirmation is passed under sub-section (5) to sub-section (7) of section 8 or section 58-B or sub-section (2-A) of section 60. Therefore, in view of the lis pendence development, when on the basis of Original Complaint filed by the Joint Director, Directorate of Enforcement, the Adjudicating Authority has confirmed the provisional attachment of the properties of the petitioners which are the subject matter in the OPID proceeding pending before the Designated Court, I am of the humble view that in view of the legal issues involved in the case, the Enforcement Directorate should be given an opportunity of hearing. Merely because the Enforcement Directorate was not impleaded as party before the Designated Court at the time of filing of the Interim Application No.01 of 2013, in view of the lis pendence development, prayer made by the petitioners in that respect cannot be turned down as the issues involved in the case can be effectively adjudicated by hearing the Enforcement Directorate. Even if twenty eight of the opposite parties in Interim Application No.01 of 2013 out of forty five have filed the criminal appeal and the other opposite parties have not been impleaded as parties to the appeal, by impleading the Enforcement Directorate as a party to the appeal, no prejudice can be caused to them. There cannot be any conflict of interest by passing such order without hearing the other opposite parties who have not been impleaded as parties to the appeal. Though on the memo filed by Mr. Tripathy to delete the Enforcement Directorate as respondent no.2 on the ground of not seeking any relief against such party, the prayer was accepted and respondent no.2 was deleted from the cause title vide order dated 06.12.2016 but during course of hearing of the criminal appeal, necessity was felt by the learned counsel for the petitioners to implead the Enforcement Directorate as party in view of the legal issues involved and accordingly, this Misc. Case was filed. Such an order dated 06.12.2016 is neither a judgment nor a final order disposing of the case and therefore, section 362 of Cr.P.C. is not a bar in entertaining the application filed by the petitioners and directing the Enforcement Directorate to be made as a party. Even though sub-section (3) of section 9 of the OPID Act permits any person not noticed but claiming an interest in the property attached or any portion thereof to make an objection before the Designated Court at any time before the order is passed under sub-section (4) or sub-section (6) but at the instance of the parties on record or even by the Designated Court suo moto, any other person can be impleaded as party if it is found during investigation as contemplated under section 9 of the OPID Act that such person has got interest in the property attached or any portion thereof or hearing of such person would be necessary in the facts and circumstances of the case in the interest of justice. Not only the Designated Court has got such power but also the Appellate Court while entertaining an appeal under section 13 of the OPID Act can pass such order. However, all attempts made by any party to file frivolous application for impleading parties without any justification for delaying the proceeding should not be entertained either by the Designated Court or by the Appellate Court. Sub-section (5) of section 9 clearly enumerates to follow the procedure and exercise all the powers of a Court in hearing a suit under the Code of Civil Procedure, 1908 by the Designated Court and therefore, such procedure as laid down under the C.P.C. has also to be followed by the Appellate Court while dealing with an appeal under section 13 of the OPID Act. In case of Mumbai International Airport Pvt. Ltd. -Vrs.- Regency Convention reported in A.I.R. 2010 S.C. 3109, it is held that Order 1 of Rule 10(2) of C.P.C. is not about the right of a non- party to be impleaded as a party, but about the judicial discretion of the Court to strike out or add parties at any stage of a proceeding. The discretion under the sub-rule can be exercised either suo moto or on the application of the plaintiff or the defendant or on an application of a person who is not a party to the suit. The Court can add any one as a plaintiff or as a defendant if it finds that he is a necessary party or proper party. In exercising its judicial discretion under Order 1 Rule 10(2) of the Code, the Court will of course act according to reason and fair play and not according to whims and caprice.

In view of the discussions above, I am of the view that for adjudicating the legal issues involved in the appeal and the lis pendence development before the Adjudicating Authority under 2002 Act, New Delhi in O.C. No.411 of 2015, the hearing of the Enforcement Directorate is necessary.

Accordingly, the Misc. Case filed by the petitioner for addition of Enforcement Directorate as party to the Criminal Appeal proceeding is allowed. The Enforcement Directorate (through Joint Director, Government of India, CGO Complex, 3rd MSO Building, DF Block, 6th Floor, Salt Lake, Kolkata-64) is permitted to be made as respondent no.2. The learned counsel for the petitioners is directed to serve a copy of the appeal memo along with all the annexures on Mr. Anup Kumar Bose, learned Asst. Solicitor General of Government of India within a week from today.