Calcutta High Court
Krishna Kumar Singhania vs The Official Liquidator And Ors. on 27 July, 2001
Equivalent citations: (2001)3CALLT91(HC)
Author: Kalyan Jyoti Sengupta
Bench: Kalyan Jyoti Sengupta
JUDGMENT
The Court
1. All formalities are disputed with. However, the department is to check up whether sufficient Court Fee having been paid for filing a review application or not. This application is for review of my judgment and order dated 3rd May 2001 whereby I dismissed the application of the review applicant, for recalling of earlier orders passed by Justice Pinaki Chandra Ghose on 17th August 1999 and 14th September 1999 respectively.
2. Narration of brief fact of this case is necessary for better understanding, though strictly speaking while dealing with a review application fact is hardly material.
3. Usha Automobiles and Engineering Limited (In Liquidation) at the material time when the aforesaid orders were passed was under the process of completion of liquidation exercised by the official liquidator. Some of the properties were stolen. So a complaint was lodged by the official liquidator with the Gaziabad Police Station, Uttar Pradesh figuring review applicant as one of the suspected persons for commission of theft. On 5th May 1999 Justice Ranojit Kumar Mitra while presiding over the Company Court passed an order directing Gaziabad police authorities to enquire into the matter and to file a report to this Court. Subsequently, however, Justice Ghose was pleased to pass an order on 17th August 1999 directing the Joint Director, CBI, Calcutta to cause an investigation to be done into the matter and file a report before this Court stating at whose instance and who are the persons Involved in this matter for illegal removal of 9 chasis of the truck and such report is to be filed to this Court on the next adjourned date,
4. Pursuant to the aforesaid order dated 14th September 1999 the report was filed by the CBI and the same was kept in safe custody of the Registrar General, Original Side of this Court. By this order dated 14th September 1999 Justice Ghose, however, exempted the Joint Director, CBI, Eastern Region from proceeding with the same and filing of report.
5. The earlier application for recalling of the aforesaid two orders was disposed of by me on 3rd May 2001. By my Judgment and order I declined, to recall the aforesaid two orders in view of the fact that two different appeal Courts had already approved of the order of Justice Ghose. Moreover, I also held that the aforesaid two orders were of discretionary ones. Therefore, I refused to substitute my discretion so as to recall the same.
6. Mr. Das, learned Senior Advocate in support of this review application contends that my judgment suffers from errors which are apparent from the face of the record as I did not exercise my discretion though I should have recalled the orders of Justice Chose as the same were passed contrary to the settled law on the subject. He contends that orders of Justice Ghose are contrary to the principle of law laid down by the apex Court as well as this Court that direction cannot be given to the CBI without a findings or conclusion that the local police authorities and/or the State Investigating Agencies are unable to do so. Moreover, earlier order of Justice Mitra still remains valid and subsisting whereby Gaziabad police authority has been directed to enquires into the matter. The said order was not considered nor the same was recalled by Justice Ghose. He submits that discretion has to be exercised judicially, and not capriciously and nor ignoring established Judicial principle. He contends that any order which is passed in derogation of any earlier valid decision, is liable to be reviewed.
7. He further contends that though the two appeal Courts have accepted the orders of Justice Ghose but those orders are not binding upon his client, as he was not party to the same. That apart his client on his application for modification before the appeal Court obtained specific liberty to approach before me by an appropriate application for recalling of the order of Justice Ghosh in order to establish his right. He has drawn my attention to the order dated 6th January 2000 passed by the appeal Court. For his entire argument he has relied on the following decisions: -
(i) 1990(1) CLJ 228
(ii)
(iii)
(iv) 1997 (2) CLJ 409
(v)
(vi) AIR 1972 Mysore 44
(vii)
(viii)
(ix) AIR 1950 FC 131
(x) and
(xi)
8. So, he contends that I should review my aforesaid judgment and order and also re-hear the matter.
9. Mr. Kar, learned Advocate appearing for the security agencies who were deputed in terms of the Court's order for the official liquidator for protecting the properties argues that there is no infirmity either legal or otherwise for which review of judgment is warranted.
10. He contends that I have rightly refused to interfere with the orders of Justice Ghose in the name of recalling as those two orders have been approved and accepted by the appeal Courts not only on two occasions but on serval occasions. He contends that even review applicant himself preferred an appeal against the earlier two orders and the same were dismissed. Now it is not open for me either to re-hear the previous application which was dismissed by me by my judgment and order sought to be reviewed. In support of his submission he has relied on decision of Supreme Court .
11. He contends that the aforesaid two orders of Justice Ghose have been merged with the appeal Court's orders and the only order is of the appeal Court now subsists and it is not for the trial Judge to interfere and upset the orders which have been merged with that of the appeal Court. If that is done the same will tantamount to interference with the order of appeal Courts and that will be a judicial indiscipline.
12. The learned Advocate for the official liquidator has adopted argument of Mr. Kar.
13. The learned Advocate for the CBI has submitted that the Director of CBI has already taken step and the investigation is going on in full swing. So it is not proper for the Court to recall my order or for that matter to recall two orders of Justice Ghose.
14. I have considered the respective contentions of the learned Advocates. It appears to me that two points need to be addressed here, viz., (i) whether my judgment and order dated 3rd May 2001 suffers from any error which is apparent on the face of the record or the same is otherwise liable to be reviewed on any other sufficient ground or not and (ii) even if I recall my order still whether the aforesaid two orders of Justice Ghose on the face of several appeal Courts judgment and order, or in substance, need to be reconsidered or recalled.
15. While delivering my judgment I had refused to interfere with the two orders of Justice Ghose on the ground that the two appeal Courts' judgment have already affirmed the same. Mr. Das contends that I have overlooked the appeal Court's decision on the application for modification of the review applicant whereby he had been given liberty to apply for recalling of the order of Justice Ghose. It is true that I have ignored the aforesaid appeal Court's order. So I am to examine the true scope and purport of the appeal Court's order dated 5th July 2000, which is quoted hereunder:
"The application for modification of the order passed by this Court on 6th January 2000 is totally misconceived. If the petitioner has any right he may agitate. As he was not a party to the proceedings, this order will not affect his rights. The application is dismissed."
16. Mr. Das has taken advantage of the last portion of the aforesaid order. It is incumbent now whether his client had any right on the date of passing of the order dated 5th July 2000 either factually or legally. In the petition of review or in the application for recalling the petitioner has not been able to establish any right. However, one question remains whether orders of Justice Ghose do affect anybody or not. So, I quote the orders of Justice Ghose dated 17.8.1999 and 14.9.1999 respectively.
"Date 17.8.1999.
The Court: A serious allegation has been made before this Court that the assets of the company in liquidation being 9 chasis of the truck which belongs to the Ministry of Defence had been stolen in collusion with the Security Agency. In view of that the Joint Director, CBI, Calcutta is directed to cause an investigation into the matter and file a report before this Court stating that at whose instance and who are the persons involved in this matter for illegal removal of such chasis of 9 trucks. Such report be filed to this Court on the next adjourned date. The Official liquidator is directed to send a copy of his complaint in this matter to the said Director, CBI, Calcutta forthwith. The Registrar, O.S., is directed to send a copy of this order to the Joint Director, CBI at Calcutta forthwith so that the Director, CBI is able to take steps in the matter. This matter stands adjourned till 14.9.99.
All parties including the Director, CBI and Registrar, O.S. are to act on a xerox signed copy of this Dictated Order on the usual undertaking."
"Date 14.9.1999.
The Court: The report filed by the CBI in sealed cover filed in Court today along with another report be kept in the safe custody of the Registrar, O.S. and the same be produced as and when required. Since the Director, CBI has already taken steps in the matter for making an enquiry in respect of the allegation which has been filed by the Official Liquidator, the Joint Director, CBI, Eastern Region is exempted from proceeding with the same and filing of the report. Time to file the report by the said Director of CBI is extended by four weeks from date.
All parties are to act on a signed copy of the minutes of this order on the usual undertaking."
17. Upon close scrutiny of the aforesaid two orders it appears to me by the first order dated 17th August 1999 Justice Ghose was pleased to direct the Joint Director, CBI, Calcutta to cause an investigation to be made into the matter and file a report before this Court stating that at whose Instance and who are the persons involved in this matter for illegal removal of 9 chasis of the truck. By the order dated 14th September 1999. His Lordship has been pleased to record-the Director, CBI has already taken steps for making an enquiry in the complaint filed by the official liquidator and for this reason His Lordship has been pleased to exempt the Joint Director, CBI, Eastern Region from proceeding with the same, and filing of the report and further granted extension to file the report by the Director of CBI.
18. Justice Ghose did not give any direction by any of His Lordship's order upon the Director to inquire into the matter. It is not clear to me who did give direction to the Director, CBI for such enquiry. True and correct effect of the aforesaid two orders is that Justice Ghose has really recalled His Lordship's earlier order but approved impliedly of the action of the Director, CBI by the subsequent order.
19. Much has been told about the legality and validity of the aforesaid orders. I do not think the petitioner does have any right to challenge the aforesaid two orders for the following reasons.
20. Enquiry has been undertaken pursuant to the complaint lodged by the official liquidator who has done it as an agent of the Court. Actually the Court is complainant and it has thought fit subsequently having regard to the gravity of the situation that enquiry should be done by some other agency either in substitution of normal agency or additionally having found no response from Gaziabad police authority. There is no harm for enquiry by substituted agency. If the complainant has chosen one particular agency it is not for the accused person to question the action taken by the complainant provided it is done under the law, though the appeal Court granted liberty, but I hold that the applicant did not have any subsisting right factually also.
21. I do not find any error in my judgment and order even after observing that ground for recalling of the earlier orders of Justice Ghose dated 17th August 1999 and 14th September 1999 respectively are of much substance, as because the aforesaid two orderes have already been merged with two appeal Courts' judgment. In the recent Supreme Court decision cited by Mr. Kar it as been laid down while explaining the principle of merger in paragraph 43 amongst other as follows:-
"......Where an appeal or revision is provided against an order passed by a Court tribunal or any other authority before superior forum and as such superior forum modifies, reverses or affirms the decision put in issue before It, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law."
22. While accepting the aforesaid principle of law laid down by the Supreme Court I am to hold that orders of Justice Ghose have been merged with the two appeal Courts' order dated 26th April 2000 and 6th January 2000 when the appeal Courts have accepted the orders of the learned trial Judge rightly or wrongly ignoring any earlier binding precedent of the Superior Court it is not open for the trial Court to make any effort to rectify the same. Mr. Das is not correct in saying that I have ignored the earlier binding Supreme Court judgment on this subject, as I have no option but to accept the judgment of the appeal Courts on the same subject passed examining the same very orders. The leave granted by the Division Bench by the order dated 11th October 1999 co-relates to any subsisting right of Mr. Das's client, as I have already held that Mr. Das's client has no right, question of being affected by the aforesaid orders of Justice Ghose does not arise. Therefore, I hold that the leave granted by the order of the appellate Court dated 11th October 1999 is not at all available. I have already observed that the Director of CBI has undertaken the investigation, so Justice Ghose had exempted the Joint Director, CBI, Eastern Region from proceeding further. In effect Justice Ghose had recalled his own previous order. It is not correct to say that the Court cannot direct the CBI to undertake any enquiry. Court can do it in certain circumstances, as it has been held in the Calcutta decision of the learned single Judge reported in 1990 (1) CLJ 228.
23. The decisions of Supreme Court and cited by Mr. Das are not applicable in this case. Factually it appears that despite the order of Justice Mitra the Gaziabad police authorities did not proceed further, though it is not mentioned in the aforesaid orders of Justice Ghose but then it was quite clear when the Gaziabad Police authorities under the Criminal Procedure Code could not or did not proceed it was incumbent upon the Court to adopt suitable measure by deputing another agency. It is true that under the scheme of Constitution the law and order is absolutely State subject. When the State Investigating Agency is unwilling or incapable there are many instances where the Court have directed CBI to undertake and complete the unfinished task. So I am of the view that there is no error apparent on the face of the record in my judgment and order.
24. The arguments which have been advanced by Mr. Das might have relevance before the Division Bench who had accepted and affirmed the same very judgment and orders of Justice Chose. Therefore, the decisions reported in AIR 1972 Mysore 44; , , and AIR 1950 Federal Court 131 are absolutely inappropriate in this case.
Therefore, the Review Application stands dismissed, however, without any costs.
Since I did not grant any interim order on this review application, therefore, no other further order is necessary.
25. Application dismissed