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2019 (10) TMI 371

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..... 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 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 deliver .....

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..... 612/2019 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, 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. 3. 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 t .....

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..... 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 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. 6. 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., ILR 2018 KAR 2915. He submitted that reference made in the writ petitions filed by the appellants to Section 482 of .....

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..... or 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 this Court dated 26th June 2019 in WA.Nos.3017-3018/2018 between K.Mahesh and the State of Karnataka and others. 9. 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. (2017) 5 SCC 533. 10. 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 pla .....

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..... .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 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. 14. 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. 15. Our attention is therefore invited to various paragraphs of the judgment and order dated 29th August 2019. Firstly, our attention is .....

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..... gs 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 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. 19. 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 Ju .....

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..... ct 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 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 .....

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