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2019 (10) TMI 371

..... 6 and 227 as well as under Section 482 of Cr.P.C.? HELD 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 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. 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. 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 to have been passed in exercise of the original jurisdiction. In a .....

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..... CATES), (BY SHRI SHASHI KIRAN SHETTY, SENIOR COUNSEL FOR SHRI KIRAN J., ADVOCATE) RESPONDENTS (BY SHRI JEEVAN J.NEERALGI, ADVOCATE FOR R1 & R2; SHRI UNNIKRISHNAN M., CGC FOR R3 & R4) 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. 2. 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 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, 200 .....

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..... 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 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 .....

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..... e 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. 7. 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. 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 Singh (1991)4 SCC 1. Lastly, he relied upon a decision of th .....

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..... terim relief. 12. 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. 13. 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 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 th .....

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..... 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. 17. 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. 18. 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 punishab .....

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..... e 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. 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 of .....

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