* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ [LPA 638 of 2009]
% JUDGMENT DELIVERED ON: 21.11.2011
ENFORCEMENT DIRECTORATE . . . APPELLANT
Through: Mr. A.S. Chandhiok, ASG with Mr.
P.S. Parmar, Mr. Naveen K. Matta
& Mr. Ram Avtar, Advocates.
VERSUS
DEVASHISH BHATTACHARYA . . .RESPONDENT
Through: Mr. Manoj Singh, Advocate.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW A.K. SIKRI, ACTING CHIEF JUSTICE (ORAL)
1. This Letters Patent Appeal is preferred by the appellant impugning the judgment dated 21st April, 2009 passed by the learned Single Judge of this Court in W.P.(Crl.) 800/2002. When this appeal came up for hearing on 4th November, 2011, we asked Mr. Chandhiok, learned ASG to demonstrate as to how the LPA was maintainable against the aforesaid judgment. Today we have heard the arguments on the maintainability. LPA 638/2009 Page 1 of 6
2. A complaint bearing No. 880/2001 dated 27th May, 2002 entitled Enforcement Director Vs. Sanjay Malviya and Ors was filed by the appellant under Section 56 of the Foreign Exchange Act, 1973 read with sub-Section (3) and (4) of Section 49 of the Foreign Exchange Management Act, 1999. In the said complaint filed before the Metropolitan Magistrate, Delhi, the appellant alleged violation of the provisions of the aforesaid two Acts and the respondent was impleaded as one of the accused; relief that the respondent alongwith other accused be punished for such violations was sought. The prayer clause in the said complaint reads as under:
"a) take cognizance of the offences mentioned in this complaint, issue process against the accused, try and proceed to punish u/s 56 of Foreign Exchange Regulation Act, 1973 r/w Section 49(3) and (4) of Foreign Exchange Management Act, 1999 accused No. 1,2 and 4 for violation of Section 47,16 (1) (b) and 29(1) (a) r/w 64 (2) and 68 of FERA, 1973 accused No.3 and 5 for the violation of Section 47,16,(1) (b) and 29(1) (a) r/w 64 (2) and accused No. 6 for the violation of Section 29(1) (a), and 47 of FERA, 1973.
b) Pass such other and further orders as this Hon'ble Court may deem fit and proper in the facts and in the circumstances of the case."
3. The respondent was at that time working as Chief Enforcement Officer in the Office of Enforcement Directorate, Ministry of Finance, LPA 638/2009 Page 2 of 6 Government of India. Cognizance of this complaint was taken by the Court and process was issued. When the respondent came to know of the same, he filed aforesaid W.P.(Crl.) 800/2002 seeking quashing of the said complaint
4. Vide impugned decision of the learned Single Judge, his prayer was allowed in the following terms:
"In view of the above discussion, this writ petition is allowed. It is directed that the proceedings arising out of complaint no.880/1 dated 27 th May, 2002 entitled Enforcement Directorate v. Sanjay Malviya & Ors. pending in the court of learned Additional Chief Metropolitan Magistrate, New Delhi as against the petitioner alone shall stand quashed. The order dated 27th May, 2002 of the learned Metropolitan Magistrate taking cognizance of the complaint against the petitioner herein and directing issuance of summons to him shall also stand quashed."
5. As per Section 10 of the Delhi High Court Act, 1966 intra Court appeal is permissible inter alia under Clause 10 of the Letters Patent. Clause 10 of the Letters Patent reads as under:
"10. Appeals to the High Court from Judges of the Court - And we do further ordain that an appeal shall lie to the said High Court of Judicature at Lahore from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or LPA 638/2009 Page 3 of 6 order made in the exercise of appellate jurisdiction by a Court subject to the Superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the exercise of the power of Superintendence under the provisions of Section 107 of the Government of India Act, or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant of Section 108 of the Government of India Act, made on or after the first day of February, one thousand nine hundred and twenty-nine in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to Us, Our heirs or Successors in our or their Privy Council, as hereinafter provided."
6. This Clause clearly prohibits maintainability of an intra-court appeal if the impugned judgment is passed in exercise of: LPA 638/2009 Page 4 of 6
1. Revisional Jurisdiction
2. The power of superintendence
3. Criminal Jurisdiction
7. The question is as to whether the impugned order is passed in exercise of criminal jurisdiction. If it is so then the present appeal is not maintainable. This very question came up for consideration before the Full Bench of this Court in LPA 819/2010 with LPA 825/2010 in the case entitled C.S. Agarwal Vs. State and Ors, 2011 (125) DRJ 241(FB). The Full Bench held that such proceedings would be in exercise of criminal jurisdiction and, therefore, appeal will not be maintainable. In para 32 of the judgment, following test to determine the nature of the proceedings were laid down:
"The test, thus, is whether criminal proceedings are pending or not and the petition under Article 226 of the Constitution is preferred concerning those criminal proceedings which could result in conviction and order of sentence.
8. It is clear that had the complaint been not quashed and the Metropolitan Magistrate proceeded with the matter, it could result in order of conviction. Writ of this nature filed under Article 226 of the Constitution seeking quashing of such a complaint would, therefore, be LPA 638/2009 Page 5 of 6 "criminal proceedings" and while dealing with such proceedings, the High Court exercised its "criminal jurisdiction". It is more so when cognizance of the said complaint was also taken and writ is allowed and while allowing the writ petition, order taking cognizance has been set aside.
9. We are, therefore, of the opinion that LPA is not maintainable and the same is accordingly dismissed. The remedy of the appellant is to challenge the order by filing SLP in the Supreme Court.
ACTING CHIEF JUSTICE ( RAJIV SAHAI ENDLAW) JUDGE November 21, 2011 skb LPA 638/2009 Page 6 of 6