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- 1 - IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF SEPTEMBER, 2019
PRESENT
THE HON’BLE MR.ABHAY S. OKA, CHIEF JUSTICE
AND
THE HON’BLE MR.JUSTICE MOHAMMAD NAWAZ
WRIT APPEAL NO.3611 OF 2019 (GM-RES) C/W WRIT APPEAL NO.3612 OF 2019 (GM-RES) AND WRIT APPEAL NO.3613 OF 2019 (GM-RES)
IN WA.No.3611/2019: BETWEEN: SRI SACHIN NARAYAN S/O.LATE H.G.NARAYAN AGED ABOUT 40 YEARS R/AT NO.902, 9TH ‘A’ CROSS 6TH MAIN, 2ND STAGE WEST OF CHORD ROAD BENGALURU-560 086 ... APPELLANT
(BY SHRI A.SHANKAR, SENIOR COUNSEL FOR SHRI SANDEEP PATIL AND SMT. SWAMINI G.MOHANAMBAL, ADVOCATES)
AND: 1. THE INCOME TAX DEPARTMENT
BY ITS DEPUTY DIRECTOR OF
INCOME TAX (INV.), UNIT-3(1)
C.R.BUILDING (ANNEX)
QUEENS ROAD
BENGALURU-560 001
THE ENFORCEMENT DIRECTORATE
MINISTRY OF FINANCE
GOVERNMENT OF INDIA
6TH FLOOR, LOK NAYAK BHAWAN
KHAN MARKET NEW DELHI-110 003
- 2 -
REPRESENTED BY SPECIAL PUBLIC PROSECUTOR ... RESPONDENTS
(BY SHRI JEEVAN J.NEERALGI, ADVOCATE FOR R1; SHRI M.B.NARGUND, SENIOR COUNSEL FOR SHRI UNNIKRISHNAN M., CGC FOR R2) --- IN WA.No.3612/2019: BETWEEN: SRI SUNIL KUMAR SHARMA S/O.SRI D.P.SHARMA AGED ABOUT 43 YEARS NO.328, SANGEETHA BHAVAN TSP ROAD, KALASIPALYAM BENGALURU-560 002 ... APPELLANT
(BY SHRI B.V.ACHARYA, SENIOR COUNSEL FOR SHRI PAVAN G.N. AND SHRI R.VYBHAV, ADVOCATES)
AND: 1. THE PRINCIPAL DIRECTOR OF
INCOME TAX (INVESTIGATION)
3RD FLOOR, C.R.BUILDING (ANNEX)
QUEENS ROAD
BENGALURU-560 001
INCOME TAX DEPARTMENT
BY ITS DEPUTY DIRECTOR OF
INCOME TAX (INV.), UNIT-3(1)
C.R.BUILDING (ANNEX)
QUEENS ROAD
BENGALURU-560 001
ASSISTANT DIRECTOR
DIRECTORATE OF ENFORCEMENT
6TH FLOOR, LOK NAYAK BHAVAN
KHAN MARKET NEW DELHI-110 003
JOINT DIRECTOR
ENFORCEMENT DIRECTORATE
BENGALURU ZONAL OFFICE
3RD FLOOR, B BLOCK
BMTC BUILDING
- 3 -
SHANTHINAGAR
BENGALURU-560 027 ... RESPONDENTS
(BY SHRI JEEVAN J.NEERALGI, ADVOCATE FOR R1 & R2; SHRI M.B.NARGUND, SENIOR COUNSEL FOR SHRI UNNIKRISHNAN M., CGC FOR R3 & R4) --- IN WA.No.3613/2019: BETWEEN: SRI ANJANEYA HANUMANTHAIAH S/O.HANUMANTHAIAH AGED ABOUT 44 YEARS R/AT GOK QUARTERS NO.1, R.K.PURAM SECTOR 6 PHASE-2, NEW DELHI-110 022 ... APPELLANT
(BY SHRI SHASHI KIRAN SHETTY, SENIOR COUNSEL FOR SHRI KIRAN J., ADVOCATE)
AND: 1. THE PRINCIPAL DIRECTOR OF
INCOME TAX (INV.)
3RD FLOOR, C.R.BUILDING (ANNEX)
QUEENS ROAD
BENGALURU-560 001
THE JOINT DIRECTOR OF
INCOME-TAX (OSD)
UNIT 1(1)
OFFICE OF THE PRINCIPAL
DIRECTOR OF INCOME-TAX
(INVESTIGATION), 3RD FLOOR
C.R.BUILDING ANNEX
QUEENS ROAD
BENGALURU-560 001
CENTRAL BOARD OF DIRECT TAXES
THROUGH THE SECRETARY
MINISTRY OF FINANCE
NORTH BLOCK
NEW DELHI-110 001
DIRECTORATE OF ENFORCEMENT
THROUGH THE ASSISTANT DIRECTOR
- 4 -
MINISTRY OF FINANCE
DEPARTMENT OF REVENUE
6TH FLOOR, LOK NAYAK BHAVAN
NEW DELHI-110 001 ... RESPONDENTS
(BY SHRI JEEVAN J.NEERALGI, ADVOCATE FOR R1 & R2; SHRI UNNIKRISHNAN M., CGC FOR R3 & R4) --- THESE WRIT APPEALS ARE FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO SET ASIDE THE ORDER DATED 30.08.2019 PASSED BY THE LEARNED SINGLE JUDGE ON THE MEMO DATED 30.08.2019 IN WP.NOS.5299/2019, 5824/2019 AND 5408/2019 RESPECTIVELY AND ETC.
THESE APPEALS COMING ON FOR ORDERS THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING:
JUDGMENT
We have heard the submissions of the learned Senior Counsel appearing for the appellants and the learned Senior Counsel appearing for the Enforcement Directorate. In these three appeals, the appellants who are the writ petitioners before the learned Single Judge have taken an exception to the order dated 30th August 2019 passed by the learned Single Judge.
A brief reference to the factual aspects of the case will have to be made. For the sake of convenience, we are referring to the facts of the case in WP.No.3612/2019 as the factual details are more or less the same in all three petitions. A writ petition was filed by the appellant seeking various
- 5 - prayers. Ultimately, before the learned Single Judge, only one prayer was pressed into service i.e. the prayer clause (e) which reads thus: “e. Issue an appropriate writ or order declaring that the action of the Enforcement Directorate Authorities registered ECIR/HQ/4/2018 for an alleged offence under prevention of Money Laundering Act, 2002, whereby necessitating the petitioner to appear for an investigation and other proceedings as illegal and resultantly Quash the Summons issued to the petitioner dated 15.02.2019 vide Annexure-L and summons dated 25.02.2019, vide Annexure-M to the Writ Petition and quash all further proceedings pursuant thereto.”
The learned Single Judge by the judgment and order dated 29th August 2019 dismissed the writ petition filed by the appellant and companion writ petitions containing the same prayer clause (e). The occasion for passing the order impugned in these three appeals arose as by filing a memo dated 30th August 2019, prayers were made by the writ petitioners in the dismissed writ petitions for continuing the interim order in the writ petitions for a reasonable time which
- 6 - was in operation in the writ petitions for considerably long time. By the impugned order, the learned Single Judge came to the conclusion that the judgment and order dated 29th August 2019 (which is the subject matter of challenge in the other appeals listed along with these three appeals) was also passed in exercise of the powers under Section 482 of Code of Criminal Procedure, 1973 (for short ‘Cr.P.C’). The learned Single Judge held that the order passed under Section 482 of Cr.P.C is not amenable to either review or correction in the light of the bar contained under Section 362 of Cr.P.C as the Court had become functus officio the moment order was passed dismissing the writ petitions and the same is signed.
The issue involved in these three appeals is whether the learned Single Judge while passing the judgment and order dated 29th August 2019 exercised the power only under Articles 226 and 227 of the Constitution of India or under Articles 226 and 227 as well as under Section 482 of Cr.P.C. If it is found that the power exercised while passing the judgment and order dated 29th August 2019 was also under Section 482 of Cr.P.C, the other appeals on the cause list filed for challenging the judgment and order dated 29th August 2019 will not be
- 7 - maintainable. Even these appeals will have to be held as not maintainable.
The learned Senior Counsel appearing for the appellants firstly submitted that on a plain reading of the judgment and order dated 29th August 2019, it is crystal clear that the learned Single Judge exercised the jurisdiction under Articles 226 and 227 of the Constitution of India and not under Section 482 of Cr.P.C. He submitted that the observation made by the learned Single Judge in the impugned order dated 30th August 2019 is that the power exercised by him was under Section 482 of Cr.P.C as well, is completely contrary to the record. For that purpose, he has taken us through the various paragraphs of the judgment and order dated 29th August 2019. He submitted that if the learned Single Judge was of the view that he was functus officio, there were no occasion for him to pass the order dated 30th August 2019 which is impugned in these appeals. He submitted that in any case, going by the reasoning adopted by the learned Single Judge, the impugned order has been passed by him after observing that he was functus officio and therefore, the said order is void. In substance, he submitted that as the power exercised by the
- 8 - learned Single Judge while passing the judgment and order dated 29th August 2019 in the writ petitions was only under Articles 226 and 227 of the Constitution of India, the impugned order is erroneous. He submitted that the simple prayer made before the learned Single Judge by filing a memo was for continuation of interim order which was operating for few months and the said order ought to have been continued. He submitted that once the impugned order dated 30th August 2019 holding that the power exercised by the learned Single while passing the judgment and order dated 29th August 2019 was under Section 482 of Cr.P.C is set aside, the other appeals preferred by the appellants impugning the judgment and order dated 29th August 2019 will have to be held as maintainable.
The learned Senior Counsel invited our attention to the decision of this Court in the case of U.O.I., Ministry of Home Affairs vs. Asim Shariff & Ors.,1. He submitted that reference made in the writ petitions filed by the appellants to Section 482 of Cr.P.C is only a matter of form and therefore, by mere reference to Section 482 of Cr.P.C in the writ petitions will
1 ILR 2018 KAR 2915
- 9 - not make the petitions filed as invoking the power under Section 482 of Cr.P.C. He submitted that though in the petitions, there is a reference to Section 482 of Cr.P.C along with Articles 226 and 227 of the Constitution of India, in substance, the power exercised by the learned Single Judge while passing the order dated 29th August 2019 was under Article 226 of the Constitution of India and therefore, an appeal under Section 4 of the Karnataka High Court Act, 1961 (for short ‘the High Court Act’) against the judgment and order dated 29th August 2019 was clearly maintainable. He submitted that as the order dated 29th August 2019 has been passed in exercise of jurisdiction under Article 226 of the Constitution of India, even the impugned order dated 30th August 2019 will have to be read as the order passed under Article 226 of the Constitution of India and that part of the impugned order which records that the learned Single Judge exercised the power under Section 482 of Cr.P.C, is completely erroneous. The learned Senior Counsel for the appellants also dealt with the objection raised by the Registry based on the decision of the Division Bench of this Court in the case of Shreemad Jagadguru Shankaracharya Shree Shree Raghaveshwara
- 10 - Bharathi Swamiji vs. State of Kar., Girinagara P.S. & Ors.2. He urged that the said case has no application inasmuch as in the facts of the case before the Division Bench, the learned Single Judge had clearly exercised the power under Section 482 of Cr.P.C notwithstanding the nomenclature of the matter as a writ petition under Articles 226 and 227 of the Constitution of India. He, would, therefore submit the issue of maintainability of the appeal will not arise in these appeals as well as in the companion appeals directed against the order dated 29th August 2019.
The learned Senior Counsel appearing for the Enforcement Directorate in these three appeals submitted that what was invoked by the writ petitioners by filing the petitions before the learned Single Judge was the jurisdiction of the learned Single Judge not only under Articles 226 and 227 of the Constitution of India but also under Section 482 of Cr.P.C. He pointed out certain paragraphs of the judgment and order dated 29th August 2019 for showing that the learned Single Judge exercised the jurisdiction even under Section 482 of Cr.P.C.
2 ILR 2015 KAR 842
- 11 - 8. The learned Senior Counsel for the Enforcement Directorate placed reliance on a decision of the Division Bench of this Court dated 11th October 2018 in WA.No.100192/2018 between Sardar Veerangouda Patil and Basantkumar. He also placed reliance on a decision of the Apex Court in the case of State of Punjab v. Gurdev Singh3. Lastly, he relied upon a decision of this Court dated 26th June 2019 in WA.Nos.3017-3018/2018 between K.Mahesh and the State of Karnataka and others.
The learned Senior Counsel appearing for the Enforcement Directorate in the other appeals, in which the challenge is to the judgment and order dated 29th August 2019 was also heard. He relied upon a decision of the Apex Court in the case of RAM KISHAN FAUJI v. STATE OF HARYANA.4
We have given careful consideration to the submissions. We may note here that when on 5th September 2019 in WA.Nos.3446, 3447 and 3448 of 2019 preferred against the judgment and order dated 29th August 2019 by the appellants in these three appeals were listed for preliminary hearing, a reliance was placed by the learned Senior Counsel
3 (1991)4 SCC 1 4 (2017)5 SCC 533
- 12 - appearing for the Enforcement Directorate on the order dated 30th August 2019 which is impugned in these three appeals for submitting that as the power exercised by the learned Single Judge is also under Section 482 of Cr.P.C, the said companion appeals challenging the judgment and order dated 29th August 2019 were not maintainable. That is why the learned Senior Counsel appearing for the appellants in these three appeals sought time to enable the appellants to challenge the order dated 30th August 2019, which is challenged by filing the present three appeals. In short, the decision in these three appeals will also decide the issue of maintainability of the other appeals which are listed today wherein the challenge is to the judgment and order dated 29th August 2019.
Before we go into the issue of maintainability of these three appeals, we must record that Section 362 of Cr.P.C could not have come in the way of the learned Single Judge in considering the prayer made by the writ petitioners for continuation of the interim relief which was operating in the writ petitions. Even assuming that the learned Single Judge had exercised the power under Section 482 of Cr.P.C as well, what Section 362 of Cr.P.C prohibits is that the alteration of order
- 13 - except to the extent of correcting clerical and arithmetical errors. What was prayed for by the petitioners was the continuation of interim relief which was operative till the disposal of the writ petitions. In our view, there was no warrant for the learned Single Judge to have taken recourse to Section 362 of Cr.P.C and even to refuse to consider the prayer for continuation of interim relief.
Now, we come to the issue of maintainability of these three appeals. The appeals are filed by invoking Section 4 of the High Court Act, which reads thus:
“4. Appeals from decisions of a single Judge of the High Court, - An appeal from a judgment, decree, order or sentence passed by a single Judge in the exercise of the original jurisdiction of the High Court under this Act or under any law for the time being in force, shall lie to and be heard by a Bench consisting of two other Judges of the High Court.”
There cannot be any dispute that if an order which is sought to be challenged by way of an appeal under Section 4 of the High Court Act is made in exercise of power under Section 482 of Cr.P.C, an appeal under Section 4 of the High Court Act will not be maintainable as the order cannot be said
- 14 - to have been passed in exercise of the original jurisdiction. In a given case, in one petition, the powers of the learned Single Judge both in Article 226 of the Constitution of India and in Section 482 of Cr.P.C can be invoked depending upon the facts of the case and prayers made in the case. It is quite possible that in a given case, the learned Single Judge exercises the powers both under Article 226 of the Constitution of India and under Section 482 of Cr.P.C. In such a case, an appeal under Section 4 of the High Court Act will not be maintainable because the exercise of powers under Section 482 of Cr.P.C and under Article 226 of the Constitution of India cannot be separated.
In the present appeals, the entire emphasis of the appellants is on the fact that the judgment delivered in the writ petitions dated 29th August 2019 shows that the learned Single Judge exercised the power under Articles 226 and 227 of the Constitution of India.
Our attention is therefore invited to various paragraphs of the judgment and order dated 29th August 2019. Firstly, our attention is invited to what is mentioned on the typed page Nos.2 to 8 of the cause title of the judgment and
- 15 - order dated 29th August 2019. It is mentioned therein that the writ petitions were filed under Articles 226 and 227 of the Constitution of India. This portion of the cause title which is pressed into service is not a part of the judgment and order. In fact, that is the description of the writ petitions as filed by the appellants incorporated in the cause title. As a matter of fact, in the title of the writ petitions filed by the appellants, it is specifically mentioned that the writ petitions were filed under Articles 226 and 227 of the Constitution of India read with Section 482 of Cr.P.C. Therefore, reference to Articles 226 and 227 of the Constitution of India in the cause title of the judgment and order dated 29th August 2019 is of no consequence. Our attention is invited to the various paragraphs of the order both by the learned Senior Counsel appearing for the appellants and the learned Senior Counsel appearing for the Enforcement Directorate.
Our attention is invited to paragraphs 17, 18, 19, 22, 29, 30 and 32 of the judgment and order dated 29th August 2019 wherein the learned Single Judge has referred to exercise of jurisdiction under Articles 226 and 227 of the Constitution of India. At the same time, our attention was also
- 16 - invited to paragraph 33 of the judgment and order dated 29th August 2019 wherein the submission of the learned Senior Counsel appearing for the appellants has been recorded that the prayer was for quashing of the proceedings under the Prevention of Money Laundering Act, 2002. According to the learned Senior Counsel appearing for the Enforcement Directorate, paragraph 33 shows that the prayer for quashing of the proceedings of the offence punishable under the Prevention of Money Laundering Act, 2002 (for short ‘said Act of 2002’) was made by the appellants and therefore, what is recorded in the said paragraph shows that what was invoked by the appellants was the power of the learned Single Judge under Section 482 of Cr.P.C as well.
After having perused the said paragraphs, we find that at some places, the learned Single Judge has given an indication that he was exercising power under Article 226 of the Constitution of India. Paragraph 33 shows that a prayer was urged before the learned Single Judge for quashing of the proceedings under the said Act of 2002. This indicates that the appellants themselves invoked Section 482 of Cr.P.C in addition to Articles 226 and 227 of the Constitution of India.
- 17 -
At this stage, we may also make a note of prayer clause (e) which was pressed into service. We already quoted the prayer clause (e). The prayer clause (e) contains quashing of the further proceedings pursuant to registration of ECIR for an offence under Section 3 of the said Act of 2002 which is punishable under Section 4 thereof. ECIR is “Enforcement Case Information Report” like a First Information Report. Thus, the prayer clause (e) indicates that there was a prayer for quashing of further proceedings on the basis of registration of ECIR. This prayer is referable to Section 482 of Cr.P.C.
We have carefully perused the decisions relied upon by both the parties. After having perused the said decisions, we are of the view that the same lay down the settled position of law. Merely because a petition is styled as the one under Articles 226 and 227 of the Constitution of India read with Section 482 of Cr.P.C, it cannot be said that the power is exercised under all the three provisions by the learned Single Judge. In a given case, on the basis of factual aspects, if it is found that the learned Single Judge had exercised the power under Section 482 of Cr.P.C while passing the impugned order, the appeal under Section 4 of the High Court Act will not be
- 18 - maintainable. If in a given case, the learned Single Judge in the petitions styled as the one under Articles 226 and 227 of the Constitution of India read with Section 482 of Cr.P.C has exercises the power under only Article 226 of the Constitution of India, surely an appeal under Section 4 of the High Court Act will be maintainable. The decisions relied upon by the learned Senior Counsel for the Enforcement Directorate of the Apex Court in the case of Ram Kishan Fauji may not be relevant as it deals with issue of maintainability of Letters Patent Appeal under a Letters Patent, which is in pari materia with Chartered High Courts’ Letters Patent.
After considering the aforesaid aspects and the legal position, we are not inclined to interfere with the view taken by the learned Single Judge that he has exercised power under Section 482 of Cr.P.C in addition to Articles 226 and 227 of the Constitution of India. The reasons for the said conclusion are more than one. As stated earlier, the prayer which was pressed into service was for quashing of the proceedings initiated on basis of the registration of an offence under Section 3 of the said Act of 2002. The said prayer shows that Section 482 of Cr.P.C was invoked by the appellants. Most importantly, in the
- 19 - present case, the learned Single Judge has himself stated and observed that while passing the judgment and order dated 29th August 2019 apart from exercising the powers under Articles 226 and 227 of the Constitution of India, he also exercised the jurisdiction under Section 482 of Cr.P.C. While deciding the issue which power was exercised by the learned Single Judge while passing the judgment and order dated 29th August 2019, what the learned Single Judge has observed cannot be ignored altogether, especially when the writ petitions filed by the appellants indicate that the jurisdiction of the Court was invoked under all the three provisions and the prayer clause (e) also indicates that apart from invoking jurisdiction under Article 226 of the Constitution of India, even the prayer for quashing of the proceedings arising out of the offence registered under the said Act of 2002 was made. In the order dated 30th August 2019 impugned in these three appeals, the learned Single Judge has himself stated that while passing the judgment and order dated 29th August 2019, he also exercised the power under Section 482 of Cr.P.C as well. There is no reason to discard or disbelieve what he has said.
- 20 - 21. The prayer clause (e) of the writ petitions was a combined prayer. The first part was for quashing of the proceedings pursuant to registration of an offence and the second part was for quashing of the summons as issued in exercise of power under Section 50 of the said Act of 2002. The summons issued in a given case under Section 50 of the said Act of 2002 may also be in connection with adjudication as contemplated in Section 8 of the said Act 2002 and not necessary in relation to the investigation of the offence under Section 3 of the said Act 2002 punishable under Section 4 of the said Act, 2002. As stated earlier, the submission of the learned Senior Counsel appearing for the appellants recorded in paragraph 33 indicates that a prayer also made for quashing of the proceedings obviously in exercise of the powers under Section 482 of Cr.P.C. All this has to be understood in the background of the fact that the appellants themselves had invoked all the three provisions by filing the writ petitions. The decision relied upon by the learned Senior Counsel appearing for the appellants in the case of Union of India (supra) will not be helpful inasmuch as in the facts of the case, it was found that the writ petitions were adjudicated under Article 226 of the Constitution of India.
- 21 -
As stated earlier, it is very difficult to question the correctness of what is recorded by the learned Single Judge who passed the judgment and order dated 29th August 2019 that he has also exercised the power under Section 482 of Cr.P.C.
We, therefore, cannot find fault with the view taken by the learned Single Judge that while passing the order dated 29th August 2019, he has also exercised the power under Section 482 of Cr.P.C. Therefore, we are unable to accede to the prayers made by the appellants in these three appeals. Accordingly, we pass the following order: The appeals are dismissed with no order as to costs. The pending interlocutory applications do not survive for consideration and are disposed of.
Sd/- CHIEF JUSTICE
Sd/- JUDGE