-1- IN HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS 17TH DAY OF SEPTEMBER, 2019 PRESENT HON BLE MR.ABHAY S. OKA, CHIEF JUSTICE AND 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 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. INCOME TAX DEPARTMENT BY ITS DEPUTY DIRECTOR OF INCOME TAX (INV.), UNIT-3(1) C.R.BUILDING (ANNEX) QUEENS ROAD BENGALURU-560 001 2. 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. PRINCIPAL DIRECTOR OF INCOME TAX (INVESTIGATION) 3RD FLOOR, C.R.BUILDING (ANNEX) QUEENS ROAD BENGALURU-560 001 2. INCOME TAX DEPARTMENT BY ITS DEPUTY DIRECTOR OF INCOME TAX (INV.), UNIT-3(1) C.R.BUILDING (ANNEX) QUEENS ROAD BENGALURU-560 001 3. ASSISTANT DIRECTOR DIRECTORATE OF ENFORCEMENT 6TH FLOOR, LOK NAYAK BHAVAN KHAN MARKET NEW DELHI-110 003 4. 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. PRINCIPAL DIRECTOR OF INCOME TAX (INV.) 3RD FLOOR, C.R.BUILDING (ANNEX) QUEENS ROAD BENGALURU-560 001 2. JOINT DIRECTOR OF INCOME-TAX (OSD) UNIT 1(1) OFFICE OF PRINCIPAL DIRECTOR OF INCOME-TAX (INVESTIGATION), 3RD FLOOR C.R.BUILDING ANNEX QUEENS ROAD BENGALURU-560 001 3. CENTRAL BOARD OF DIRECT TAXES THROUGH SECRETARY MINISTRY OF FINANCE NORTH BLOCK NEW DELHI-110 001 4. DIRECTORATE OF ENFORCEMENT THROUGH 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 KARNATAKA HIGH COURT ACT, 1961, PRAYING TO SET ASIDE ORDER DATED 30.08.2019 PASSED BY LEARNED SINGLE JUDGE ON 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 FOLLOWING: JUDGMENT We have heard submissions of learned Senior Counsel appearing for appellants and learned Senior Counsel appearing for Enforcement Directorate. In these three appeals, appellants who are writ petitioners before learned Single Judge have taken exception to order dated 30th August 2019 passed by learned Single Judge. 2. brief reference to factual aspects of case will have to be made. For sake of convenience, we are referring to facts of case in WP.No.3612/2019 as factual details are more or less same in all three petitions. writ petition was filed by appellant seeking various -5- prayers. Ultimately, before learned Single Judge, only one prayer was pressed into service i.e. prayer clause (e) which reads thus: e. Issue appropriate writ or order declaring that action of Enforcement Directorate Authorities registered ECIR/HQ/4/2018 for alleged offence under prevention of Money Laundering Act, 2002, whereby necessitating petitioner to appear for investigation and other proceedings as illegal and resultantly Quash Summons issued to petitioner dated 15.02.2019 vide Annexure-L and summons dated 25.02.2019, vide Annexure-M to Writ Petition and quash all further proceedings pursuant thereto. 3. learned Single Judge by judgment and order dated 29th August 2019 dismissed writ petition filed by appellant and companion writ petitions containing same prayer clause (e). occasion for passing order impugned in these three appeals arose as by filing memo dated 30th August 2019, prayers were made by writ petitioners in dismissed writ petitions for continuing interim order in writ petitions for reasonable time which -6- was in operation in writ petitions for considerably long time. By impugned order, learned Single Judge came to conclusion that judgment and order dated 29th August 2019 (which is subject matter of challenge in other appeals listed along with these three appeals) was also passed in exercise of powers under Section 482 of Code of Criminal Procedure, 1973 (for short Cr.P.C ). learned Single Judge held that order passed under Section 482 of Cr.P.C is not amenable to either review or correction in light of bar contained under Section 362 of Cr.P.C as Court had become functus officio moment order was passed dismissing writ petitions and same is signed. 4. issue involved in these three appeals is whether learned Single Judge while passing judgment and order dated 29th August 2019 exercised power only under Articles 226 and 227 of Constitution of India or under Articles 226 and 227 as well as under Section 482 of Cr.P.C. If it is found that power exercised while passing judgment and order dated 29th August 2019 was also under Section 482 of Cr.P.C, other appeals on cause list filed for challenging judgment and order dated 29th August 2019 will not be -7- maintainable. Even these appeals will have to be held as not maintainable. 5. learned Senior Counsel appearing for appellants firstly submitted that on plain reading of judgment and order dated 29th August 2019, it is crystal clear that learned Single Judge exercised jurisdiction under Articles 226 and 227 of Constitution of India and not under Section 482 of Cr.P.C. He submitted that observation made by learned Single Judge in impugned order dated 30th August 2019 is that power exercised by him was under Section 482 of Cr.P.C as well, is completely contrary to record. For that purpose, he has taken us through various paragraphs of judgment and order dated 29th August 2019. He submitted that if learned Single Judge was of view that he was functus officio, there were no occasion for him to pass order dated 30th August 2019 which is impugned in these appeals. He submitted that in any case, going by reasoning adopted by learned Single Judge, impugned order has been passed by him after observing that he was functus officio and therefore, said order is void. In substance, he submitted that as power exercised by -8- learned Single Judge while passing judgment and order dated 29th August 2019 in writ petitions was only under Articles 226 and 227 of Constitution of India, impugned order is erroneous. He submitted that simple prayer made before learned Single Judge by filing memo was for continuation of interim order which was operating for few months and said order ought to have been continued. He submitted that once impugned order dated 30th August 2019 holding that power exercised by learned Single while passing judgment and order dated 29th August 2019 was under Section 482 of Cr.P.C is set aside, other appeals preferred by appellants impugning judgment and order dated 29th August 2019 will have to be held as maintainable. 6. learned Senior Counsel invited our attention to decision of this Court in case of U.O.I., Ministry of Home Affairs vs. Asim Shariff & Ors.,1. He submitted that reference made in writ petitions filed by appellants to Section 482 of Cr.P.C is only matter of form and therefore, by mere reference to Section 482 of Cr.P.C in writ petitions will 1 ILR 2018 KAR 2915 -9- not make petitions filed as invoking power under Section 482 of Cr.P.C. He submitted that though in petitions, there is reference to Section 482 of Cr.P.C along with Articles 226 and 227 of Constitution of India, in substance, power exercised by learned Single Judge while passing order dated 29th August 2019 was under Article 226 of Constitution of India and therefore, appeal under Section 4 of Karnataka High Court Act, 1961 (for short High Court Act ) against judgment and order dated 29th August 2019 was clearly maintainable. He submitted that as order dated 29th August 2019 has been passed in exercise of jurisdiction under Article 226 of Constitution of India, even impugned order dated 30th August 2019 will have to be read as order passed under Article 226 of Constitution of India and that part of impugned order which records that learned Single Judge exercised power under Section 482 of Cr.P.C, is completely erroneous. learned Senior Counsel for appellants also dealt with objection raised by Registry based on decision of Division Bench of this Court in case of Shreemad Jagadguru Shankaracharya Shree Shree Raghaveshwara - 10 - Bharathi Swamiji vs. State of Kar., Girinagara P.S. & Ors.2. He urged that said case has no application inasmuch as in facts of case before Division Bench, learned Single Judge had clearly exercised power under Section 482 of Cr.P.C notwithstanding nomenclature of matter as writ petition under Articles 226 and 227 of Constitution of India. He, would, therefore submit issue of maintainability of appeal will not arise in these appeals as well as in companion appeals directed against order dated 29th August 2019. 7. learned Senior Counsel appearing for Enforcement Directorate in these three appeals submitted that what was invoked by writ petitioners by filing petitions before learned Single Judge was jurisdiction of learned Single Judge not only under Articles 226 and 227 of Constitution of India but also under Section 482 of Cr.P.C. He pointed out certain paragraphs of judgment and order dated 29th August 2019 for showing that learned Single Judge exercised jurisdiction even under Section 482 of Cr.P.C. 2 ILR 2015 KAR 842 - 11 - 8. learned Senior Counsel for Enforcement Directorate placed reliance on decision of 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 decision of Apex Court in case of State of Punjab v. Gurdev Singh3. Lastly, he relied upon decision of this Court dated 26th June 2019 in WA.Nos.3017-3018/2018 between K.Mahesh and State of Karnataka and others. 9. learned Senior Counsel appearing for Enforcement Directorate in other appeals, in which challenge is to judgment and order dated 29th August 2019 was also heard. He relied upon decision of Apex Court in case of RAM KISHAN FAUJI v. STATE OF HARYANA.4 10. We have given careful consideration to submissions. We may note here that when on 5th September 2019 in WA.Nos.3446, 3447 and 3448 of 2019 preferred against judgment and order dated 29th August 2019 by appellants in these three appeals were listed for preliminary hearing, reliance was placed by learned Senior Counsel 3 (1991)4 SCC 1 4 (2017)5 SCC 533 - 12 - appearing for Enforcement Directorate on order dated 30th August 2019 which is impugned in these three appeals for submitting that as power exercised by learned Single Judge is also under Section 482 of Cr.P.C, said companion appeals challenging judgment and order dated 29th August 2019 were not maintainable. That is why learned Senior Counsel appearing for appellants in these three appeals sought time to enable appellants to challenge order dated 30th August 2019, which is challenged by filing present three appeals. In short, decision in these three appeals will also decide issue of maintainability of other appeals which are listed today wherein challenge is to judgment and order dated 29th August 2019. 11. Before we go into issue of maintainability of these three appeals, we must record that Section 362 of Cr.P.C could not have come in way of learned Single Judge in considering prayer made by writ petitioners for continuation of interim relief which was operating in writ petitions. Even assuming that learned Single Judge had exercised power under Section 482 of Cr.P.C as well, what Section 362 of Cr.P.C prohibits is that alteration of order - 13 - except to extent of correcting clerical and arithmetical errors. What was prayed for by petitioners was continuation of interim relief which was operative till disposal of writ petitions. In our view, there was no warrant for learned Single Judge to have taken recourse to Section 362 of Cr.P.C and even to refuse to consider prayer for continuation of interim relief. 12. Now, we come to issue of maintainability of these three appeals. appeals are filed by invoking Section 4 of High Court Act, which reads thus: 4. Appeals from decisions of single Judge of High Court, - appeal from judgment, decree, order or sentence passed by single Judge in exercise of original jurisdiction of High Court under this Act or under any law for time being in force, shall lie to and be heard by Bench consisting of two other Judges of High Court. 13. There cannot be any dispute that if order which is sought to be challenged by way of appeal under Section 4 of High Court Act is made in exercise of power under Section 482 of Cr.P.C, appeal under Section 4 of High Court Act will not be maintainable as order cannot be said - 14 - to have been passed in exercise of original jurisdiction. In given case, in one petition, powers of learned Single Judge both in Article 226 of Constitution of India and in Section 482 of Cr.P.C can be invoked depending upon facts of case and prayers made in case. It is quite possible that in given case, learned Single Judge exercises powers both under Article 226 of Constitution of India and under Section 482 of Cr.P.C. In such case, appeal under Section 4 of High Court Act will not be maintainable because exercise of powers under Section 482 of Cr.P.C and under Article 226 of Constitution of India cannot be separated. 14. In present appeals, entire emphasis of appellants is on fact that judgment delivered in writ petitions dated 29th August 2019 shows that learned Single Judge exercised power under Articles 226 and 227 of Constitution of India. 15. Our attention is therefore invited to various paragraphs of judgment and order dated 29th August 2019. Firstly, our attention is invited to what is mentioned on typed page Nos.2 to 8 of cause title of judgment and - 15 - order dated 29th August 2019. It is mentioned therein that writ petitions were filed under Articles 226 and 227 of Constitution of India. This portion of cause title which is pressed into service is not part of judgment and order. In fact, that is description of writ petitions as filed by appellants incorporated in cause title. As matter of fact, in title of writ petitions filed by appellants, it is specifically mentioned that writ petitions were filed under Articles 226 and 227 of Constitution of India read with Section 482 of Cr.P.C. Therefore, reference to Articles 226 and 227 of Constitution of India in cause title of judgment and order dated 29th August 2019 is of no consequence. Our attention is invited to various paragraphs of order both by learned Senior Counsel appearing for appellants and learned Senior Counsel appearing for Enforcement Directorate. 16. Our attention is invited to paragraphs 17, 18, 19, 22, 29, 30 and 32 of judgment and order dated 29th August 2019 wherein learned Single Judge has referred to exercise of jurisdiction under Articles 226 and 227 of Constitution of India. At same time, our attention was also - 16 - invited to paragraph 33 of judgment and order dated 29th August 2019 wherein submission of learned Senior Counsel appearing for appellants has been recorded that prayer was for quashing of proceedings under Prevention of Money Laundering Act, 2002. According to learned Senior Counsel appearing for Enforcement Directorate, paragraph 33 shows that prayer for quashing of proceedings of offence punishable under Prevention of Money Laundering Act, 2002 (for short said Act of 2002 ) was made by appellants and therefore, what is recorded in said paragraph shows that what was invoked by appellants was power of learned Single Judge under Section 482 of Cr.P.C as well. 17. After having perused said paragraphs, we find that at some places, learned Single Judge has given indication that he was exercising power under Article 226 of Constitution of India. Paragraph 33 shows that prayer was urged before learned Single Judge for quashing of proceedings under said Act of 2002. This indicates that appellants themselves invoked Section 482 of Cr.P.C in addition to Articles 226 and 227 of Constitution of India. - 17 - 18. At this stage, we may also make note of prayer clause (e) which was pressed into service. We already quoted prayer clause (e). prayer clause (e) contains quashing of further proceedings pursuant to registration of ECIR for offence under Section 3 of said Act of 2002 which is punishable under Section 4 thereof. ECIR is Enforcement Case Information Report like First Information Report. Thus, prayer clause (e) indicates that there was prayer for quashing of further proceedings on basis of registration of ECIR. This prayer is referable to Section 482 of Cr.P.C. 19. We have carefully perused decisions relied upon by both parties. After having perused said decisions, we are of view that same lay down settled position of law. Merely because petition is styled as one under Articles 226 and 227 of Constitution of India read with Section 482 of Cr.P.C, it cannot be said that power is exercised under all three provisions by learned Single Judge. In given case, on basis of factual aspects, if it is found that learned Single Judge had exercised power under Section 482 of Cr.P.C while passing impugned order, appeal under Section 4 of High Court Act will not be - 18 - maintainable. If in given case, learned Single Judge in petitions styled as one under Articles 226 and 227 of Constitution of India read with Section 482 of Cr.P.C has exercises power under only Article 226 of Constitution of India, surely appeal under Section 4 of High Court Act will be maintainable. decisions relied upon by learned Senior Counsel for Enforcement Directorate of Apex Court in case of Ram Kishan Fauji may not be relevant as it deals with issue of maintainability of Letters Patent Appeal under Letters Patent, which is in pari materia with Chartered High Courts Letters Patent. 20. After considering aforesaid aspects and legal position, we are not inclined to interfere with view taken by learned Single Judge that he has exercised power under Section 482 of Cr.P.C in addition to Articles 226 and 227 of Constitution of India. reasons for said conclusion are more than one. As stated earlier, prayer which was pressed into service was for quashing of proceedings initiated on basis of registration of offence under Section 3 of said Act of 2002. said prayer shows that Section 482 of Cr.P.C was invoked by appellants. Most importantly, in - 19 - present case, learned Single Judge has himself stated and observed that while passing judgment and order dated 29th August 2019 apart from exercising powers under Articles 226 and 227 of Constitution of India, he also exercised jurisdiction under Section 482 of Cr.P.C. While deciding issue which power was exercised by learned Single Judge while passing judgment and order dated 29th August 2019, what learned Single Judge has observed cannot be ignored altogether, especially when writ petitions filed by appellants indicate that jurisdiction of Court was invoked under all three provisions and prayer clause (e) also indicates that apart from invoking jurisdiction under Article 226 of Constitution of India, even prayer for quashing of proceedings arising out of offence registered under said Act of 2002 was made. In order dated 30th August 2019 impugned in these three appeals, learned Single Judge has himself stated that while passing judgment and order dated 29th August 2019, he also exercised power under Section 482 of Cr.P.C as well. There is no reason to discard or disbelieve what he has said. - 20 - 21. prayer clause (e) of writ petitions was combined prayer. first part was for quashing of proceedings pursuant to registration of offence and second part was for quashing of summons as issued in exercise of power under Section 50 of said Act of 2002. summons issued in given case under Section 50 of said Act of 2002 may also be in connection with adjudication as contemplated in Section 8 of said Act 2002 and not necessary in relation to investigation of offence under Section 3 of said Act 2002 punishable under Section 4 of said Act, 2002. As stated earlier, submission of learned Senior Counsel appearing for appellants recorded in paragraph 33 indicates that prayer also made for quashing of proceedings obviously in exercise of powers under Section 482 of Cr.P.C. All this has to be understood in background of fact that appellants themselves had invoked all three provisions by filing writ petitions. decision relied upon by learned Senior Counsel appearing for appellants in case of Union of India (supra) will not be helpful inasmuch as in facts of case, it was found that writ petitions were adjudicated under Article 226 of Constitution of India. - 21 - 22. As stated earlier, it is very difficult to question correctness of what is recorded by learned Single Judge who passed judgment and order dated 29th August 2019 that he has also exercised power under Section 482 of Cr.P.C. 23. We, therefore, cannot find fault with view taken by learned Single Judge that while passing order dated 29th August 2019, he has also exercised power under Section 482 of Cr.P.C. Therefore, we are unable to accede to prayers made by appellants in these three appeals. Accordingly, we pass following order: appeals are dismissed with no order as to costs. pending interlocutory applications do not survive for consideration and are disposed of. Sd/- CHIEF JUSTICE Sd/- JUDGE LB Sachin Narayan v. Income-tax Department by Its Deputy Director of Income-tax (Inv.), Unit-3(1), Bengaluru/ Enforcement Directorate Ministry of Finance Government of India, New Delhi