Enforcement Directorate vs Devashish Bhattacharya
2011 Latest Caselaw 5600 Del

*              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.

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,

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

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:

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

"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