H N BHATTACHARJEE Vs. P B VENKATA SUBRAMANIUM

JUDGEMENT

(1.) 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. 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. 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.