Deposition of any
sum as a condition of bail and a deposit with the
Agency on one’s own even if to avoid arrest would
stand on a different footing. The later action has
nothing to do with the proceedings in the court.
Thus understood, Section 482 of the Code could not
have been exercised as the action taken by the
appellant, a channelising industry under the Ministry
of Commerce is absolutely an administrative action
and, therefore, we are of the considered opinion that
the same can only be challenged by way of a writ
petition and not by seeking relief invoking the
inherent power under Section 482 of the Code.Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 387 OF 2007
Engineering Export Promotion Council
...Appellant
Versus
Usha Anand and another
...Respondents
JUDGMENT
Dipak Misra, J.
Citation;2013 ALL MR 2448
The facts which are essential to be exposited are
that the husband of the Ist respondent, late Yash Pal
Anand, was a merchant exporter of automotive
components and was carrying on business in the
name and style of M/s. Anand Craft Centre.
The
Central Bureau of Investigation (CBI) registered six
cases against him for offences punishable under
Sections 420, 468/471 of the Indian Penal Code (for
short “IPC”) in the year 1994.
Identical cases of
equal numbers were registered against his brothers,
namely, Ashok, Satish and Subhash. The allegations
against the four accused persons are not required to
be stated because the controversy pertains to a
different realm altogether.
would
demonstrate,
late
As the factual matrix
Yash
Pal
Anand
had
deposited a sum of Rs.22 lakhs with Engineering
Export Promotion Council (EEPC), a channelising
industry under the Ministry of Commerce.
Other
three brothers had also deposited the sum with the
said agency.
The trial continued in different cases
against all the four brothers and, eventually, Ashok,
Satish and Subhash were acquitted in all the cases
by the trial court which extended them the benefit of
doubt. As far as the husband of the Ist respondent is
concerned, he expired before the conclusion of the
trial and, therefore, the trial stood abated against
him. Against the judgment of acquittal of the three
brothers CBI preferred appeals which were dismissed
on 27.5.2002 and no appeal was preferred assailing
the judgment of affirmation of acquittal. Thereafter,
they claimed refund of the amount by filing requisite
applications before the learned trial Judge who, by
order
dated
13.8.2001, directed refund of the
amount. The reason ascribed by the trial court for
refund was that the said sum was deposited by the
accused persons in compliance of the conditions of
the bail order and it was clearly stated that the
accused persons had deposited the money without
prejudice to their rights and as they had been
acquitted, they were entitled to refund of the money
deposited with the EEPC.
3.
As the amount was not refunded despite the order
passed by the trial court, one of the brothers
preferred Cri.M. (M) No. 3541 of 2001 before the
High Court which passed an order directing the
present appellant to refund the amount.
The
relevant part of the order dated 5.10.2001 passed in
Crl. M. (M) No. 3541 of 2001 is as follows: -
“The question that is being raised before me, is
whether the amount deposited by the accused
persons pursuant to orders dated 12.10.1994
requiring the petitioner to deposit a sum of
Rs.15,24,079/- with the second respondent by
way of terms and condition of the bail and the
petitioner during trial having been acquitted of
all charges on 22.6.2001 is entitled to receive
back the money that is deposited pursuant to
the orders of this Court with the second
respondent as a condition of bail. Learned
counsel for the CBI submits that the CBI does
not have the money and that the same was
deposited with the second respondent and,
therefore it is only the second respondent that
can be directed to return the money deposited.
I have heard learned counsel present for
the parties the second respondent choosing not
to be present, I direct that the amount
deposited by the petitioner with the second
respondent pursuant to orders of this Court and
which was directed to be returned vide order
dated 13.8.2001 shall be returned within a
period of two weeks from date of service of the
order.”
4.
Thereafter, the 1st respondent filed Crl. M. (M) No.
3009 of 2003 with a prayer to command the
respondent No. 2, the appellant herein, to refund the
amount of Rs.22 lakhs on the ground that she was
the sole legal heir; that the allegations in all the
cases were identical without any exception; that the
trial court had allowed the applications for refund
vide order dated 13.8.2001 in respect of other
brothers; that as the order passed by the trial court
was not complied with, one of the brothers had filed
Crl. M. (M) No. 3541 of 2001 before the High Court
which was disposed of by order dated 5.10.2001
directing the respondent to refund the deposited
amount within two weeks; that as the trial against
the husband had abated, she had not been able to
move
the
application
earlier;
that
after
the
termination of the trial she had approached the
officers of the respondent but despite the earlier
direction by this Court and they being under legal
obligation to refund the amount, tremendous apathy
was shown and money was not refunded; and that no
response
was
given
to
the
legal
notice
and,
therefore, she was entitled to refund of the deposited
sum.
5.
The High Court entertained the application preferred
by the 1st respondent and passed the following order
on 3.12.2003: -
“In identical petition namely Crl. M. (M) No.
3541/2001 an order dated 15.10.2001 was
passed directing refund of the money deposited
by the petitioner of that petition within a period
of two weeks from the date of service of the
respondent.
Since in this case also respondent No. 2 has
been served the same order needs to be
passed.
The amount deposited by the
petitioner shall now be returned to the
petitioner within a period of two weeks from
today.”
6.
Being grieved by the aforesaid order special leave
petition (Crl.) No. 41 of 2004 was filed before this
Court, which was eventually converted to Criminal
Appeal No.1085 of 2004. This Court, on 27.9.2004,
passed the following order in the said criminal
appeal: -
“Let the present appellant, if they are advised,
file their objections, if any, to the petition in
Criminal Miscellaneous (Main) No. 3009 of 2003
in the High Court within three weeks from
today. If any objection is filed, the same shall
be considered on its own merits by the High
Court about which we express no opinion. The
Criminal Miscellaneous (Main) No. 3009 of 2003
shall be restored to its original position as stood
before disposal on 3.12.2003. If no objection is
filed, the order passed on 3.12.2003 shall
remain operative.
The liberty given to the
appellant to file a counter shall be also
applicable to the CBI.
This order has been passed notwithstanding the
stand of the respondents that full liberty was
granted to the appellant to file any objection
which they failed to avail. Since a specific stand
has been taken that the appellant intended to
file objections for which it was not granted any
opportunity, we have passed the present
order.”
7.
After the aforesaid order an objection was filed and
the High Court, while dealing with the controversy
referred to the order passed by the trial court on
13.8.2001 directing refund of amount in respect of
other accused persons, and further referred to the
order
passed
reproduced
on
5.10.2001,
hereinabove,
and
which
we
thereafter,
have
as
is
manifest from the order impugned, it reproduced a
part of the letter dated 30.8.1994 by late Yash Pal
Anand written to the respondent No. 2 therein and
observed thus: -
“Admittedly, the other three brothers also
deposited the amount under the same
circumstances. After their acquittal when they
applied to the trial court for refund of the
amount deposited by them the trial court
directed the refund of the amount.
While
passing the order of refund the learned trial
court has categorically observed that money
was deposited in compliance of the condition of
bail order and without prejudice to the rights of
the accused to be entitled to refund of the
money. I fail to understand as to why same
treatment be not meted out to the petitioner.”
8.
Being of this view, the High Court further opined that
once the proceeding stood abated against him, it
cannot be argued that the case would have resulted
in conviction when cases against other brothers on
identical allegations had resulted in acquittal and the
appeals had been dismissed.
Resultantly, the
petition was allowed and the respondent No. 2
therein was directed to refund the amount within a
period of four weeks.
9.
Mr. Amit Singh Chadha, learned senior counsel
appearing for the appellant, has seriously criticized
the order on the ground that the respondent’s
husband had deposited the money with the appellant
on his own and it is not in pursuance of the order or
command of any court and it has nothing to do with
the grant of bail.
It is strenuously urged that the
High Court has fallen into grave error by applying the
doctrine of parity which is remotely not applicable. It
is canvassed by him that when as a condition of bail
a sum is deposited, the same is liable to be released
after acquittal but when an amount is deposited on
one’s volition it cannot be directed to be refunded
under Section 482 of the Code of Criminal Procedure
(for short “the Code”).
10. The learned counsel for the respondent No. 2, per
contra, would contend that the order passed by the
High Court is absolutely defensible inasmuch as
when the trial stood abated against late Yash Pal
Anand, husband of the Ist respondent, it had the
effect of acquittal and, therefore, the fall out is
refund of the amount which had been deposited with
the appellant. It is his further submission that when
the charges were identical against all and the three
accused persons were acquitted, there was no
justification to treat the legal heir of other accused in
a different manner. It is put forth that the amount
was deposited by late Yash Pal Anand to avoid arrest
and without prejudice which is perceptible from letter
dated 30.8.1994 written by him to the appellant
which has been appositely referred to by the High
Court
and
hence,
interference
with
the
order
impugned would amount to non-refund of the
amount to the respondent which would result in
miscarriage of justice.
11. To appreciate the rivalised submissions raised at the
Bar, we have with great anxiety scrutinized the order
passed by the High Court.
Indubitably, the High
Court was exercising its inherent powers under
Section 482 of the Code. The fulcrum of the order
passed by the High Court is that late husband of the
Ist respondent had deposited the money to avoid
arrest and similarly placed accused persons had
been acquitted and they had been granted relief of
refund by the trial court and again reiterated by the
High Court under Section 482 of the Code, similar
treatment should be meted out to her.
12. To appreciate the ratiocination of the order passed
by the High Court it is necessary to understand the
jurisdiction of the High Court while exercising the
power under Section 482 of the Code.
In R.P.
Kapur v. State of Punjab1, a three-Judge Bench
was dealing with the scope of inherent power the
High Court under Section 561A of the old Code. In
that context, it has been observed that the High
Court has said inherent power as may be necessary
is meant to give effect to any order under the Code
or to prevent abuse of the process of any court or
otherwise to secure the ends of justice.
13. In State of Punjab v. Kasturi Lal and others2, the
Court, dealing with the scope of exercise of power
under Section 482 of the Code. has observed that the
Section does not confer any new power on the High
Court.
It only saves the inherent power which the
Court possesses before the enactment of the Code.
14. After so stating it has been laid down that it
envisages three circumstances under which the
inherent jurisdiction may be exercised, namely, (i) to
give effect to an order under the Code, (ii) to prevent
abuse of the process of the Court, and (iii) to
AIR 1960 SC 866
AIR 2005 SC 4135
otherwise secure the ends of justice.
It is neither
possible nor desirable to lay down any inflexible rule
which
would
jurisdiction.
govern
the
exercise
of
inherent
No legislative enactment dealing with
procedure can provide for all cases that may possibly
arise. Courts, therefore, have inherent powers apart
from express provisions of law which are necessary
for proper discharge of functions and duties imposed
upon them by law. That is the doctrine which finds
expression in the section which merely recognizes
and preserves inherent powers of the High Courts.
15. In this context, we may fruitfully refer to State of
U.P. and others v. Surender Kumar3 wherein the
appellant-State had assailed the order passed by the
a learned Judge of the Allahabad High Court who, in
exercise of power under Section 482 of the Code,
had
modified
its
earlier
order
directing
the
respondent-State and its functionaries not to carry
out search and seizure of the goods lying at the
railway station or in the custody of the City Booking
(2005) 9 SCC 161
Agency belonging to the applicant therein prior to
their delivery to the consignee and also not to
interfere in the functioning of the City Booking
Agency.
The two learned Judges opined that the
High Court could not have modified the order as it
amounted to review.
Repelling the contention that
the High Court had only acted in accordance with the
judgment of the Division Bench of the said High
Court, the two-Judge Bench proceeded to state as
follows: -
“In the garb of an application for modification of
that order, the respondent could not file an
application which was in effect a review
application praying for other reliefs. Yet the
High Court passed an order directing the
appellants not to search and seize the goods
lying at the railway station or in the custody of
the City Booking Agency of the applicant prior
to the delivery to the consignees. It has further
directed that the appellants shall not interfere
in the functioning of the City Booking Agency.
These are matters which were entirely beyond
the scope of the application under Section 482
CrPC and if, we may say so, beyond the
jurisdiction of the High Court exercising
jurisdiction under Section 482 CrPC. It does not
arise out of any order passed by a court, nor
was there any allegation of abuse of the process
of the court, nor was it a case of manifest
injustice caused to a party. A direction like the
one which the High Court has given in its
impugned order could be given by the High
Court in exercise of its writ jurisdiction in an
appropriate case and not under Section 482
CrPC.”
16. In Divine Retreat Centre v. State of Kerala4 the
central controversy that arose before this Court
pertained to the scope, content and ambit of the
inherent power conferred on the High Court under
Section 482 of the Code.
A submission was
canvassed that the jurisdiction of the High Court
under Section 482 of the Code was not available to
order investigation into any case by the police. After
referring to number of decisions it has been opined
thus: -
“22. In our view, there is nothing like unlimited
arbitrary jurisdiction conferred on the High
Court under Section 482 of the Code. The
power has to be exercised sparingly, carefully
and with caution only where such exercise is
justified by the tests laid down in the Section
itself. It is well settled that Section 482 does
not confer any new power on the High Court but
only saves the inherent power which the court
possessed before the enactment of the Code.
There are three circumstances under which the
inherent jurisdiction may be exercised, namely,
(i) to give effect to an order under the Code, (ii)
to prevent abuse of the process of Court, and
(iii) to otherwise secure the ends of justice.”
AIR 2008 SC 1614
17. In the said case, the two-Judge Bench made a
distinction between the exercise of power under
Article 226 of the Constitution of India and the power
under the Code.
18. In the case at hand, the High Court has given, as has
been stated hereinbefore, emphasis on judgment of
acquittal and the deposit of money with the appellant
to avoid arrest. As far as the judgment of acquittal
because of abatement is concerned, it is not
necessary to dwell upon what would be the effect of
an acquittal in a case of this nature.
The second
issue being important requires to be delved into.
Late Yash Pal Anand, had written two letters to the
appellant
on
25.8.1994
and
on
30.8.1994
respectively. We may reproduce the relevant part of
the letter dated 30.8.1994 : -
“Without prejudice to our claim and contention
that benefit of I.P.R.S. has been legally claimed
by us, we are happy tendering approximately a
sum of Rs.7,40,000.00 which constitute about
27% of the total sum of Rs.27,50,000.00 as
payable by us to E.E.P.C. as alleged to be
payable. The detail of the tendering amount is
as under.
1. Banker’s Cheque No. 198929 dt. 27.8.94
of Rs. 2,80,000.00 issued by Canara
Bank, New Delhi.
2. Banker’s Cheque No. 198928 dt. 27.8.94
of Rs. 4,60,000.00 issued by Canara
Bank, New Delhi.
Kindly accept this sum of Rs. 7,40,000.00 under
protest and acknowledge.
We are already made 13% amount vide
Banker’s Cheque No. 198878 dt. 25.8.94 of Rs.
3,60,000.00 issued by Canara Bank, New Delhi
and now total amount paid 40% (Rs.
11,00,000.00)
We are at present in serious financial constraint,
therefore, the balance left over amount may not
be deposited by us immediately. But however
the remaining sum should be deposited in the
course of the time as intimated to you from
time to time.
In view of the above you are requested to also
kindly inform immediately to the special
investigation branch (CBI) not to take measure
against us.
We assure you that we will fully co-operate with
you from time to time and further assure you
that the entire sum as become payable by us
shall be paid with.”
[Emphasis added]
19. Again on 5.10.1994 late Yash Pal Anand wrote
another letter the relevant part of which is as follows:
“We are already made 13% amount vide
Banker’s Cheque No. 198878 dt. 25.8.94 of Rs.
3,60,000.00 issued by Canara Bank, New Delhi
and 27% of Rs. 7,40,000.00 (Banker’s Cheque
No. 198929 dt. 27.8.94) and now total amount
paid 80% (Rs. 22,00,000.00)
We are at present in serious financial constraint,
therefore the balance left over amount may not
be deposited by us immediately. But however
the remaining sum should be deposited as early
as possible.
In view of the above you are requested to also
kindly inform immediately to the special
investigation branch (CBI) not to take measure
against us.”
[Emphasis supplied]
20. From the aforesaid communications, it is clear that
the money was deposited by the husband of the Ist
respondent on his own volition with the appellant.
The High Court has observed that the other three
brothers had deposited the amount under same
circumstances and, therefore, after their acquittal
the amount was directed to be refunded. The High
Court has referred to its earlier order wherein it had
been categorically stated that the money was
deposited as a condition of bail. Deposition of any
sum as a condition of bail and a deposit with the
Agency on one’s own even if to avoid arrest would
stand on a different footing. The later action has
nothing to do with the proceedings in the court.
Thus understood, Section 482 of the Code could not
have been exercised as the action taken by the
appellant, a channelising industry under the Ministry
of Commerce is absolutely an administrative action
and, therefore, we are of the considered opinion that
the same can only be challenged by way of a writ
petition and not by seeking relief invoking the
inherent power under Section 482 of the Code.
21. Consequently, the appeal is allowed, the order
passed by the High Court is set aside and liberty is
granted to appellant to approach the High Court by
way of writ petition.
If a writ petition is filed, the
same shall be dealt with on merits. Needless to
emphasise, to
all
contentions
relating
liability,
entitlement for refund and all other aspects are kept
open as we have not expressed any opinion on any
count except the jurisdictional facet. There shall be
no order as to costs.
..............................................J.
[Dr. B. S. Chauhan]
..............................................J.
[Dipak Misra]
New Delhi;
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