H. N. BHATTACHARJEE v. P. B. VENKATA SUBRAMANIUM — 1988 DIGILAW 117 (CAL)

JUDGEMENT This revisional application under S.482 of the Code of Criminal Procedure, which has been assigned by Hon'ble the Chief Justice, is for recalling an order passed by B.C. Chakraborty, J., on 22-12-82 in Criminal Appeal No. 176 of 1976 of this Court. The facts leading to the filing of the revisional application, may be stated as follows : 2. The office of M/s. S.N. Bhattacharjee and Company, of which Sri H.N. Bhattacharjee, is one of the partners, was searched by the officers of the Enforcement Directorate in December, 1965. On 20-3-79, an adjudication order was passed by Sri M.G. Wagh for contravention of Ss.4(1), 4(3) and 5(1)(a) of the Foreign Exchange Regulation Act, 1947. By that order, a penalty of Rs. 50,000/- was imposed on each of the three partners of the firm, M/s. S. N. Bhattacharjee and Company under S. 23(1)(a) of the Foreign Exchange Regulation Act, 1947 (hereinafter referred to as the "Old Act" for the sake of convenience). No penalty was imposed on the firm. There was an appeal, being Appeal No. 42 of 1970, before the Foreign Exchange Regulation Appellate Board against that order of penalty passed by Sri M. G. Wagh. The appeal was dismissed. Thereafter, Sri H. N. Bhattacharjee filed an appeal in this Court in the Criminal Appellate Jurisdiction under S. 54 of the Foreign Exchange Regulation Act, 1973 (hereinafter called the "Act of 1973" for the sake of brevity). The appeal came up for admission on 29-6-76 before A. N. Banerjee, J. The appeal was admitted by His Lordship. It came up for final hearing before the Criminal Appellate Bench presided over by B. C. Chakraborty, J. During the hearing of the appeal, the jurisdiction of the Adjudicating Officer to impose the penalty was challenged on the ground that the Adjudicating Officer, Sri Wagh, was not duly appointed in the manner prescribed by the old Act. There was previously a decision of this Court in Criminal Appeal No. 130 of 1975, Mihir Chatterjee v. P. B. Venkatasubramaniam wherein similar point was successfully urged by the appellant of that appeal. Mr. Satyabrata Bhattacharjee, the learned Advocate for the respondent in that appeal, submitted before B. C. Chakraborty, J., during the hearing of the Criminal Appeal No. 176 of 1976, that the Government did not move against the order passed in Criminal Appeal No. 130 of 1975 of this Court. Mr. Satyabrata Bhattacharjee, the learned Advocate for the respondent in that appeal, submitted before B. C. Chakraborty, J., during the hearing of the Criminal Appeal No. 176 of 1976, that the Government did not move against the order passed in Criminal Appeal No. 130 of 1975 of this Court. On the basis of this concession made by Mr. Bhattacharjee as well as on coming to the conclusion that the order of adjudication passed by Sri Wagh in his purported capacity as Director of Enforcement was without jurisdiction, the Criminal Appeal No. 176 of 1976 was allowed and the order of the Foreign Exchange Regulation Appellate Board, confirming the order of Sri Wagh, was set aside. Subsequently, this application under S.482, Cr.P.C, has been filed by the petitioner. 3. The case of the petitioner, the Director, Enforcement Directorate (the respondent No. 4 in the Criminal Appeal No. 176 of 1976), is that the order dated 22-12-82 passed by B. C. Chakraborty, J. in Criminal Appeal No. 176 of 1976, is a nullity as His Lordship had no jurisdiction to hear the appeal which was filed in a wrong jurisdiction and was admitted by A. N. Banerjee, J. wrongly in the Criminal Appellate Jurisdiction, while sitting singly. It is alleged that the appeal against the order of the Foreign Exchange Regulation Appellate Board is required to be filed in the Original Side of this Court and is to be entertained and disposed of by a Division Bench on the Original Side. As this has not been done, the order dated 22-12-82 is a nullity. It has further been alleged that Sri Satyabrata Bhattacharjee communicated a wrong information to B. C. Chakraborty, J. that the Central Government did not move against the order passed in Criminal Appeal No. 130 of 1975. In fact, the Supreme Court was moved in the matter and in Criminal Appeal No. 60 of 1984, the Supreme Court allowed that appeal, set aside the order of this Court in Criminal Appeal No. 130 of 1975 and reduced the penalty imposed in that case. In fact, the Supreme Court was moved in the matter and in Criminal Appeal No. 60 of 1984, the Supreme Court allowed that appeal, set aside the order of this Court in Criminal Appeal No. 130 of 1975 and reduced the penalty imposed in that case. It was also alleged that the application under S. 482, Cr.P.C. could not be filed earlier as it was only 4/5-10-83 that the petitioner came to know from the counsel of Sri H. N. Bhattacharjee about the judgment delivered by B. C. Chakraborty, J., when a claim for refund on behalf of Sri H. N. Bhattacharjee was filed. 4. Mr. Ghosal, the learned Advocate for the petitioner, has contended that under the Foreign Exchange Regulation Act there are provisions for two separate proceedings viz. adjudication proceeding under Ss. 50 to 54 of the Act of 1973, corresponding to Ss. 23(1)(a), 23-D(1), 23-D(2) and 23-EE of the old Act and criminal prosecution under S. 56 of the Act of 1973, corresponding to Ss. 23(1)(b), 23(1-A) and 23(4) of the old Act. In respect of adjudication proceeding, there is provision for appeal under S. 52 of the Act of 1973 (corresponding to S. 23-E of the old Act) to the Foreign Exchange Regulation Appellate Board against decision of the Adjudication Officer. A second appeal lies only on a point of law before the High Court under S. 54 of the Act of 1973 corresponding to S. 23-EE of the old Act. According to Mr. Ghosal, an appeal under S. 54 of the Act of 1973 is to be heard by a Division Bench on its Original Side. A supplementary affidavit has been filed on behalf of the petitioner to the effect that in course of hearing of several Foreign Exchange Adjudication Appeals being, inter alia, Criminal Appeals Nos. 409 of 1975, 212 of 1976, 367 of 1975, 387 of 1975 and 419 of 1975 of this Court, argument was advanced on behalf of the Deputy Director, Enforcement Directorate and Director of Enforcement Directorate, the respondent in these appeals, that the Foreign Exchange Adjudication Appeals could not be heard by a Hon'ble Judge sitting singly. 409 of 1975, 212 of 1976, 367 of 1975, 387 of 1975 and 419 of 1975 of this Court, argument was advanced on behalf of the Deputy Director, Enforcement Directorate and Director of Enforcement Directorate, the respondent in these appeals, that the Foreign Exchange Adjudication Appeals could not be heard by a Hon'ble Judge sitting singly. It is stated in that supplementary affidavit that the matters were referred by Monoj Kumar Mukherjee, J. to the Hon'ble the Chief Justice, that Hon'ble the Chief Justice constituted a Division Bench presided over by Monoj Kumar Mukherjee, J. to hear out these appeals and that thereafter those appeals were heard out and disposed of by the Division Bench presided over by Monoj Kumar Mukherjee, J. Mr. Ghosal contends that as under the Rules of this Court the appeals under S. 54 of the Act of 1973, corresponding to S. 23-EE of the old Act, are to be heard by a Division Bench on the Original Side, the filing of the appeal on the Criminal Appellate Side, admission of the appeal by a Hon'ble Judge sitting singly as well as disposal of the appeal on 22-12-82 by another Hon'ble Judge sitting singly on the Criminal Appellate Side are without jurisdiction. Mr. Ghosal has referred to the decision of the Supreme Court in the case of Pandurang v. State of Maharashtra, 1986 Cri LJ 1975 to show that even a right decision by a wrong forum is not decision and is a nullity. Mr. Ghosal has, accordingly, contended that the judgment dated 22-12-82 in Criminal Appeal No. 176 of 1976 of this Court is a nullity. 5. The second branch of argument of Mr. Ghosal is that this Court has sufficient inherent power to recall the order passed by B. C. Chakraborty, J. and to direct rehearing of the appeal. According to him, the judgment dated 22-12-82 is also to be recalled as no notice of the Criminal Appeal No. 176 f 1976 of this Court was served on the petitioner, who happened to be the respondent No. 4 in the criminal appeal. 6. Mr. Dutta, appearing for the respondent, Sri H.N. Bhattacharjee, has challenged all these contentions of Mr. Ghosal. Mr. Mukherjee, the learned Public Prosecutor, has also contended that this Court has no power to review the decision of B. C. Chakraborty, J. 7. As regards the first contention of Mr. 6. Mr. Dutta, appearing for the respondent, Sri H.N. Bhattacharjee, has challenged all these contentions of Mr. Ghosal. Mr. Mukherjee, the learned Public Prosecutor, has also contended that this Court has no power to review the decision of B. C. Chakraborty, J. 7. As regards the first contention of Mr. Ghosal, is to be stated that the provisions of the Act of 1973 as well as the old Act show that two types of proceedings are contemplated under the Foreign Exchange Regulation Act. One of these proceedings is adjudication proceeding as urged by Mr. Ghosal. The other proceeding is criminal prosecution under S. 56 of the Act of 1973. In respect of adjudication proceeding, there are provisions for appeal to the Foreign Exchange Regulation Appellate Board in S. 52 of the Act of 1973 and for appeal on point of law only to the High Court under S. 54 of the Act of 1973. Section 53of the Act of 1973, corresponding to S. 23-D(2) of the old Act, enumerates the powers of the Adjudicating Officer and the Appellate Board to summon witnesses and some other power. It is stated in S. 53 of the Act of 1973 that the Adjudicating Officer and the Appellate Board shall have all the powers of a Civil Court under the Code of Civil Procedure, 1908, while trying a suit, in respect of all these matters and will be deemed, while exercising these powers, to be a Civil Court for the purpose of Ss, 480 and 482 of the Code of Criminal Procedure, 1898. In the case of M. R. Pratap v. Director of Enforcement, 1969 Cri LJ 1582 (Mad), it has been held that proceedings under S. 23(1)(a) or 23-D of the old Act are not criminal proceedings by virtue of S. 23-F of the old Act and that these proceedings remain as civil proceedings. To show that the proceedings in this case are criminal proceedings, Mr. Dutta has referred to the provision in S. 53 of the Penal Code and has argued that as fine is one of the punishments enumerated in S. 53, I.P.C., the order of penalty passed by Sri Wagh in this case under S. 50 of the Act of 1973 is an order of fine. Dutta has referred to the provision in S. 53 of the Penal Code and has argued that as fine is one of the punishments enumerated in S. 53, I.P.C., the order of penalty passed by Sri Wagh in this case under S. 50 of the Act of 1973 is an order of fine. He has referred to R. 9 under Part I, Chapter II of the Appellate Side Rules of this Court for the purpose of showing that a single Judge may hear any appeal, reference or application for revision against a sentence of imposition of fine. As such, Mr. Dutt contends that the admission of the appeal by A.N. Banerjee, J. or the disposal of the appeal by B.C. Chakraborty, J., was in exercise of proper jurisdiction and cannot be challenged. This contention of Mr. Dutt cannot be accepted Section 56 of the Act of 1973 shows that without prejudice to any award of penalty by the adjudicating officer under that Act, if any person contravenes any of the provisions of that Act, except some provisions, he shall, upon conviction by a Court (emphasis supplied by me), be punishable with the different kinds of punishment mentioned in that section. Fine is one of these modes of punishment in S. 56 of the Act of 1973. When S. 50 of the Act of 1973 mentions penalty and not fine, which could only be imposed after filing of a criminal proceeding for non-payment of the penalty imposed by Sri Wagh, the appeal to this Court under S. 54 of the Act of 1973 cannot be admitted on the criminal side or disposed of on the criminal side by any Hon'ble Judge sitting singly. If the appeal under S. 54 of the Act of 1973 is to be taken as an appeal from a civil proceeding, in view of the provision in S. 53 of the Act of 1973, the appeal was to be heard by a Division Bench on the Original Side and not on the Appellate Side, under R. 1 in Chapter II of Part I of the Appellate Side Rules of this Court, when the Foreign Exchange Regulation Appellate Board is not a subordinate Civil Court. Even then, it is difficult to recall the order passed by B. C. Chakraborty, J. Whatever be the decisions of some High Courts earlier, such as in the cases of State of U.P. v. Bati, AIR 1950 All 625 ; Shyam Behari v. State of M.P., 1973 Cri LJ 1673 (Madh Pra) and Chitawan v. Mahboob, 1970 Cri LJ 378 (All), referred to by Mr. Ghosal, the decision of the Supreme Court in the case of State of Orissa v. Ram Chander, AIR 1979 SC 87 : (1979 Cri LJ 33) is that once a judgment has been pronounced by the High Court either in exercise of its appellate or revisional jurisdiction, no review or revision can be entertained against that judgment, as there is no provision in the Code which would enable the High Court to review the same or to exercise the revisional jurisdiction. It has further been held by the Supreme Court in that case that the provisions of S. 561 of the old Cod of Criminal Procedure, 1898 (corresponding to o S. 482 of the Code of Criminal Procedure, 1973) cannot be invoked for exercise of a power which is specifically prohibited by the Code. It has further been laid down by the Supreme Court in the case of Sooraj Devi v. Pyare Lal, AIR 1981 SC 736 : (1981 Cri LJ 296), that the inherent power of Court under S. 482. Cr. P.C. is not contemplated by the saving provision in S. 362, Cr. P.C., "save as otherwise provided by this Code or by any other law for the time being in force", referring only to those provisions of the Code of Criminal Procedure where the Court has been expressly authorised by the Code or other law to alter or review judgment. Mr. Ghosal has contended that he had no other alternative than to file the application under S. 482, Cr. P.C. as the judgment was delivered in exercise of Criminal Appellate Jurisdiction of this Court. According to him, he could not file any application unde S. 151 of the Code of Civil Procedure, as the appeal to this Court was taken as a criminal appeal. It is no doubt true that the appeal to this Court against the decision of the Foreign Exchange Regulation Appellate Board was filed on the Criminal Side and was heard by a Judge sitting singly on the Criminal Side. It is no doubt true that the appeal to this Court against the decision of the Foreign Exchange Regulation Appellate Board was filed on the Criminal Side and was heard by a Judge sitting singly on the Criminal Side. Even then, when the application for revision is under S. 482 of the Code of Criminal Procedure and this Court has no inherent power to review the judgment delivered by B.C. Chakraborty, J., in view of the aforesaid decisions of the Supreme Court, the revisional application is to be rejected. The remedy of the petitioner was to move the Supreme Court either under Art. 132 or Art. 136 of the Constitution. Even if the petitioner came to know of the order passed by B.C. Chakraborty, J. on 4/5-10-83, as stated in paragraph 10 of the application, it will be for the petitioner to decide whether still any remedy is available to the petitioner in the matter. So far as this Court is concerned, the judgment delivered by B.C. Chakraborty, J., cannot be recalled as there is no provision for review of judgment on the criminal side in the Code of Criminal Procedure. 8. It is no doubt true that as per a letter dated 12-8-1976 from the Registrar, F.E.R.A. Board to the Seventh Assistant Registrar, High Court, Appellate Side of this Court, notice of the Criminal Appeal No. 176 of 1976 was served on the respondents 1 and 2 and not on respondent 4, Director, Enforcement Directorate in that Criminal Appeal. It is of no use to decide as to whether the non-service of any notice of that Criminal Appeal No. 176 of 1976 on the Director, Enforcement Directorate will entail review of the judgment delivered by B.C. Chakraborty, J., as, for reasons already stated, this Court cannot exercise inherent power under S. 482, Cr.P.C, to recall the order passed by B.C. Chakraborty, J. 9. Sri Satyabarta Bhattacharjee appearing in the Criminal Appeal No. 176 of 1976 on behalf of the State, on whom a notice was served under S. 385(1)(ii) of the Code of Criminal Procedure. He did not enter appearance in that appeal on behalf of the petitioner of this revisional application. Sri Satyabarta Bhattacharjee appearing in the Criminal Appeal No. 176 of 1976 on behalf of the State, on whom a notice was served under S. 385(1)(ii) of the Code of Criminal Procedure. He did not enter appearance in that appeal on behalf of the petitioner of this revisional application. Any statement made by him before B.C. Chakraborty, J., though incorrect, as Criminal Appeal No. 60 of 1984 was then pending in the Hon'ble Supreme Court against the decision of this court in the Criminal Appeal No. 130 of 1975, cannot prejudicially affect the petitioner for whom Sri Bhattacharjee did not enter appearance in that Criminal Appeal No. 176 of 1976. 10. For the above reasons, the revisional application is to be rejected. 11. The revisional application is, accordingly, rejected. The Rule is discharged. Application rejected.