RAM KISHAN FAUJI Vs. STATE OF HARYANA AND ORS
Supreme Court of India (Full Bench (FB)- Three Judge)
Appeal (Civil), 4288 of 2017, Judgment Date: Mar 21, 2017
“The expression "civil proceeding" is not defined in the Constitution, nor
in the General Clauses Act. The expression in our judgment covers all
proceedings in which a party asserts the existence of a civil right
conferred by the civil law or by statute, and claims relief for breach
thereof.”
“A criminal proceeding on the other hand is ordinarily one in which if
carried to its conclusion it may result in the imposition of sentences such
as death, imprisonment, fine or forfeiture of property. It also includes
proceedings in which in the larger interest of the State, orders to prevent
apprehended breach of the peace, orders to bind down persons who are a
danger to the maintenance of peace and order, or orders aimed at preventing
vagrancy are contemplated to be passed.”
In the case at hand, the writ petition was filed under Article 226 of
the Constitution for quashing of the recommendation of the Lokayukta. The
said recommendation would have led to launching of criminal prosecution,
and, as the factual matrix reveals, FIR was registered and criminal
investigation was initiated. The learned Single Judge analysed the report
and the ultimate recommendation of the statutory authority and thought it
seemly to quash the same and after quashing the same, as he found that FIR
had been registered, he annulled it treating the same as a natural
consequence. Thus, the effort of the writ petitioner was to avoid a
criminal investigation and the final order of the writ court is quashment
of the registration of FIR and the subsequent investigation. In such a
situation, to hold that the learned Single Judge, in exercise of
jurisdiction under Article 226 of the Constitution, has passed an order in
a civil proceeding as the order that was challenged was that of the quasi-
judicial authority, that is, the Lokayukta, would be conceptually
fallacious. It is because what matters is the nature of the proceeding,
and that is the litmus test.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4288 OF 2017
(arising out of S.L.P. (Civil) No. 15362 of 2016)
Ram Kishan Fauji ... Appellant
Versus
State of Haryana and Ors. ... Respondents
J U D G M E N T
Dipak Misra, J.
Leave granted.
2. The Chief Secretary to the Government of Haryana in exercise of power
under Section 8(1) of the Haryana Lokayukta Act, 2002 (for brevity, “the
Act”) made a reference to the Lokayukta, Haryana to enquire into the
allegations, namely, (i) whether the allegations of bribery levelled in the
alleged Compact Disc (CD) are correct, (ii) whether Change of Land Use
(CLU)/Licence was granted in pursuance of these allegations, and (iii)
whether by such act, any illegality was committed. The said reference was
registered as Complaint No. 773 of 2013 in the office of the Lokayukta,
Haryana.
3. Acting on the reference made by the Chief Secretary, the office of
the Lokayukta issued a public notice requesting the public in general to
send any such material including Video Compact Disc (VCD) connected with
the subject in issue. Apart from the public notice, communications were
sent to various departments of the Government, television channels and
newspapers for furnishing all materials to find out the allegations of
corruption against the persons who have been named in the complaint.
4. As the facts would unfold, the Lokayukta, Haryana, issued notice to
the appellant in exercise of power under Section 14 of the Act to offer his
explanation. In pursuance of the said communication, the appellant filed a
reply and the Lokayukta granted him time to place on record his evidence in
the form of an affidavit. When the matter stood thus, on 16.01.2014, two
persons allegedly conducted a sting operation and filed their affidavits
before the Lokayukta. The appellant, in the meantime, got the CD examined
from M/s Truth Labs, Bangalore and also got the forensic examination of the
audio and a report was submitted on 20.01.2014 opining, as averred, that
the audio and video recording in the earlier CD was not continuous and the
recording did not appear to be authentic. Be that as it may, on weighing
the material brought on record, the Lokayukta thought it appropriate to
recommend for registration of FIR for offences punishable under the
provisions of the Prevention of Corruption Act, 1988 (for short, “the 1988
Act”) and investigation by a senior competent officer of impeccable
integrity.
5. At this stage, it is necessary to mention that the appellant had
preferred Civil Writ Petition No. 4554/2014 (O&M) praying for issue of a
writ in the nature of certiorari for quashing of the impugned orders dated
20.01.2014 and 11.02.2014 passed by the respondent No. 2 whereby it had
recommended registration of a case against the petitioner therein under the
provisions of the 1988 Act and further for issue of a writ or direction in
the nature of mandamus restraining the respondent No. 1 from initiating any
consequential proceeding on the basis of the impugned orders. The grounds
asserted for the assail were that there was no verification of the
genuinity of the alleged VCD and that the action taken was perverse,
illegal, arbitrary and violative of the provisions of the Act.
6. The High Court, vide order dated 14.03.2014, directed the respondent
State to inquire into the authenticity of the CD in question and file a
status report in the Court and further directed that the State shall be
bound by the judgment of Lalita Kumari v. Govt. of Uttar Pradesh and
others[1] with reference to the preliminary enquiry to be conducted in
respect of corruption cases. A reply was filed before the High Court on
03.12.2014 and FIR No. 10/2014 was registered at P.S. State Vigilance
Bureau, Panchkula on 04.12.2014 under Sections 7 and 8 of the 1988 Act.
Certain other documents were brought on record before the learned Single
Judge of the High Court and eventually. vide judgment dated 27.02.2015, the
learned Single Judge referred to various aspects such as the facts that led
to the complaint before the Lokayukta, the findings of the Lokayukta, the
initial endeavour by the High Court to gather details of the authenticity
of the CD, the contradictory report submitted by the writ petitioner from
private laboratory, he fresh report from Central Forensic Science
Laboratory (CFSL) to quell the contradiction, the law relating to the
admissibility of evidence of electronic record and, thereafter, it recorded
its conclusion on the issues pertaining to the authenticity of the CD,
credible information for bribery, direction for filing of complaint by the
Lokayukta, the report of the Lokayukta, the imputations made against the
petitioner, prima facie proof, the jurisdiction of the Lokayukta to cause
an inquiry and, ultimately, came to hold as follows:-
“I have undertaken this examination only to conclude all the issues which
were urged before me. The observations as regards the untenability
invoking the provision of Section 9 does not obtain relevance to us, for,
we have already found the report to be seriously flawed in every respect
both as regards the competence of the Lokayukta to order a registration of
a complaint after he found the reference in the negative that there was no
case made for allegations of corruption and that also the evidence of CD
which was taken to be the basis for a further investigation itself could
not be relied on, for, it lacks the basic element of authenticity.”
7. Being of this view, it proceeded to deal with the registration of the
complaint on the recommendation of the Lokayukta and, in that regard,
opined that:-
“The learned counsel for the State would submit that the investigation has
proceeded subsequent to the impugned order passed. A FIR has been
registered on 04.12.2014, that is, after the writ petition was filed, when
the issue of the authenticity of the CD was very much open for
consideration. Indeed, I had stayed the further proceedings when I passed
an order on 19.12.2014 directing the CD to be sent along with the memory
chip to the CFSL, Hyderabad. If the investigation is purported to be taken
by lodging a FIR, consequent on the directions given by the order which is
now quashed, it shall also be quashed.”
8. While so stating, the learned Single Judge ruled that if there is any
other material or information of corrupt practice against the writ
petitioner, the State shall be at liberty to carry out the investigation as
per law.
9. The aforesaid order came to be assailed in LPA No. 1426 of 2015. The
Division Bench, by order dated 15.12.2015, without issuing notice to the
present appellant, condoned the delay of 85 days in filing the appeal and
stayed the operation of the judgment passed by the learned Single Judge.
The appellant filed CM No. 3930/LPA of 2015 for vacation of the said
interim order and the Division Bench declined to vacate the interim order
and made it absolute on 12.05.2016 by the impugned order and after
admitting the LPA, passed the following order:-
“However, with a view to ensure absolute objectivity in the ongoing
investigation and to rule out any possibility of alleged prejudice against
respondent No.1, the Director General of Police, Haryana is directed to re-
constitute a Special Investigation Team comprising three senior IPS
officers who originally do not belong to the State of Haryana.
Liberty is granted to the parties to seek out-of-turn hearing of the appeal
after the investigation is over.”
10. Questioning the sustainability of the order passed by the Division
Bench, Dr. Rajeev Dhawan, learned senior counsel, has raised a singular
contention that the LPA preferred before the Division Bench was not
maintainable inasmuch as the learned Single Judge had exercised criminal
jurisdiction. He has placed reliance on certain authorities to which we
shall refer to at the relevant place in the course of our deliberations.
11. Mr. Sanjay Kumar Visen, learned counsel appearing for the respondent
State, resisting the aforesaid submission, would contend that the writ
petition was registered as a civil writ petition for the purpose of issuing
a writ of certiorari and the exercise of jurisdiction by the High Court is
civil in nature and, therefore, the jurisdiction exercised is civil
jurisdiction that invites interference in intra-court appeal. That apart,
contends Mr. Visen that the exercise of power of the learned Single Judge
is strictly under Article 226 of the Constitution of India and, hence, an
intra-court appeal deserved to be entertained by the Division Bench. It is
further submitted by him that the Lokayukta is a quasi-judicial body and
when, at its instance, action is taken for inquiry, it has to come within
the ambit and scope of civil jurisdiction and not criminal jurisdiction.
Learned counsel for the State has stressed on the status of Lokayukta and
for that matter has commended us to the authority in Justice
Chandrashekaraiah (Retd.) v. Janekere C. Krishna & others[2].
12. First, we intend to advert to the position of the Lokayukta or Upa-
Lokayukta as has been dealt with in Justice Chandrashekaraiah (supra). In
the said case, Radhakrishnan, J. ruled that Lokayukta and Upa-Lokayukta act
as quasi-judicial authorities, but their functions are investigative in
nature. Scrutinising the provisions enshrined under Sections 9, 10 and 11
of the Karnataka Lokayukta Act, 1984, he opined that the said authorities,
while investigating the matters, are discharging quasi-judicial functions,
but the nature of functions is investigative. The learned Judge, while
deliberating on the consequence of the report, ruled thus:-
“The Governor of the State, acting in his discretion, if accepts the report
of the Lokayukta against the Chief Minister, then he has to resign from the
post. So also, if the Chief Minister accepts such a report against a
Minister, then he has to resign from the post. The Lokayukta or Upa-
Lokayukta, however, has no jurisdiction or power to direct the Governor or
the Chief Minister to implement his report or direct resignation from the
office they hold, which depends upon the question whether the Governor or
the Chief Minister, as the case may be, accepts the report or not. But when
the Lokayukta or Upa-Lokayukta, if after the investigation, is satisfied
that the public servant has committed any criminal offence, prosecution can
be initiated, for which prior sanction of any authority required under any
law for such prosecution, shall also be deemed to have been granted.”
13. In the concurring opinion, Lokur, J. posed the question whether the
Lokayukta is a quasi-judicial authority. The argument on behalf of the
State was that Upa-Lokayukta is essentially required to investigate
complaints and enquire into the grievances brought before it and,
therefore, he may be exercising some quasi-judicial functions, but that
does not make him a quasi-judicial authority. The said submission was
advanced to highlight the proposition that when the Upa-Lokayukta is not a
quasi-judicial authority, the opinion of the Chief Justice of the High
Court of Karnataka would not have primacy in the appointment and
consultation process. After adverting to the powers and functions of Upa-
Lokayukta, it has been held that:-
“105. Section 14 of the Act enables the Upa-Lokayukta to prosecute a public
servant and if such an action is taken, sanction to prosecute the public
servant shall be deemed to have been granted by the appropriate authority.”
xxxxx xxxxx
“107. The broad spectrum of functions, powers, duties and responsibilities
of the Upa-Lokayukta, as statutorily prescribed, clearly bring out that not
only does he perform quasi-judicial functions, as contrasted with purely
administrative or executive functions, but that the Upa-Lokayukta is more
than an investigator or an enquiry officer. At the same time,
notwithstanding his status, he is not placed on the pedestal of a judicial
authority rendering a binding decision. He is placed somewhere in between
an investigator and a judicial authority, having the elements of both. For
want of a better expression, the office of an Upa-Lokayukta can only be
described as a sui generis quasi-judicial authority.”
“108. ……The final decision rendered by the Upa-Lokayukta, called a report,
may not bear the stamp of a judicial decision, as would that of a court or,
to a lesser extent, a tribunal, but in formulating the report, he is
required to consider the point of view of the person complained against and
ensure that the investigation reaches its logical conclusion, one way or
the other, without any interference and without any fear. Notwithstanding
this, the report of the Upa-Lokayukta does not determine the rights of the
complainant or the person complained against. Consequently, the Upa-
Lokayukta is neither a court nor a tribunal. Therefore, in my opinion, the
Upa-Lokayukta can best be described as a sui generis quasi-judicial
authority.”
14. After so stating, the learned Judge referred to the opinions of
Kania, CJI and Das, J. in Associated Cement Companies Ltd. v. P.N.
Sharma[3] and arrived at the following conclusion:-
“As mentioned above, an Upa-Lokayukta does function as an adjudicating
authority but the Act places him short of a judicial authority. He is much
more “judicial” than an investigator or an inquisitorial authority largely
exercising administrative or executive functions and powers. Under the
circumstances, taking an overall view of the provisions of the Act and the
law laid down, my conclusion is that the Upa-Lokayukta is a quasi-judicial
authority or in any event an authority exercising functions, powers, duties
and responsibilities conferred by the Act as a sui generis quasi-judicial
authority.
15. The aforesaid pronouncement was rendered when the appointment of Upa-
Lokayukta was challenged on the ground that one of the constitutional
functionaries was not consulted. Emphasis was on the nature of the post
held by Lokayukta or Upa-Lokayukta.
16. The aforesaid paragraphs would clearly show that neither the
Lokayukta nor Upa-Lokayukta has any jurisdiction or authority to direct
implementation of his report by the constitutional functionary but when
after investigation, it is found that the public servant has committed any
criminal offence, prosecution can be initiated for which prior sanction of
any authority is required under any law for such prosecution and the same
shall be deemed to have been granted.
17. Relying on the aforesaid judgment, it is submitted by Mr. Visen that
when the posts held by Lokayukta and Upa-Lokayukta are quasi-
judicial in nature, their functioning has to be given the same character
and once they are clothed with such functioning and action taken by them is
subject to challenge before the High Court under Article 226 of the
Constitution seeking a writ of certiorari for quashment of the same, in
that event, the adjudication has to be regarded as civil in nature.
Elaborating further, he would submit that in the instant case, a civil writ
was filed challenging the opinion and recommendation of the Lokayukta and,
therefore, the jurisdiction sought to be exercised is under Article 226 of
the Constitution of India and resultantly, the order passed by the learned
Single Judge is amenable to correction in intra-court appeal.
18. The maze needs to be immediately cleared. In the instant case, we
are really not concerned with the nature of the post held by Lokayukta or
Upa-Lokayukta. We are also not concerned how the recommendation of the
said authorities is to be challenged and what will be the procedure
therefor. As has been held by this Court, neither the Lokayukta nor Upa-
Lokayukta can direct implementation of his report, but it investigates and
after investigation, if it is found that a public servant has committed a
criminal offence, prosecution can be initiated.
19. Having discussed as aforesaid, at this juncture, reference to Clause
10 of the Letters Patent (as applicable to erstwhile Punjab & Lahore High
Courts) is absolutely apposite. It reads as follows:-
“10. Appeals to the High Court from Judges of the Court – And we do further
ordain that an appeal shall lie to the said High Court of Judicature at
Lahore from the judgment (not being a judgment passed in the exercise of
appellate jurisdiction in respect of a decree or order made in the exercise
of appellate jurisdiction by a Court subject to the superintendence of the
said High Court, and not being an order made in the exercise of revisional
jurisdiction, and not being a sentence or order passed or made in exercise
of the power of superintendence under the provisions of Section 107 of the
Government of India Act, or in the exercise of criminal jurisdiction) of
one Judge of the said High Court or one Judge of any Division Court,
pursuant to Section 108 of the Government of India Act, and that
notwithstanding anything hereinbefore provided an appeal shall lie to the
said High Court from a judgment of one Judge of the said High Court or one
Judge of any Division Court, pursuant to Section 108 of the Government of
India Act, made on or after the first day of February, one thousand nine
hundred and twenty-nine in the exercise of appellate jurisdiction in
respect of a decree or order made in the exercise of appellate jurisdiction
by a Court subject to the superintendence of the said High Court where the
Judge who passed the judgment declares that the case is a fit one for
appeal; but that the right of appeal from other judgments of Judges of the
said High Court or of such Division Court shall be to Us, Our Heirs or
Successors in Our or Their Privy Council, as hereinafter provided.”
[emphasis added]
20. On a plain reading of the aforesaid clause of the Letters Patent, it
is manifest that no appeal lies against the order passed by the Single
Judge in exercise of criminal jurisdiction. Thus, the question that is
required to be posed is whether the learned Single Judge, in the obtaining
factual matrix has exercised criminal jurisdiction or not.
21. Presently, we may fruitfully refer to Clauses 15, 17 and 18 that
deal with criminal jurisdiction. Clause 15 that provides for ordinary
criminal jurisdiction of the High Court reads as under:-
“15. And We do further ordain that the High Court of Judicature at Lahore
shall have ordinary original criminal jurisdiction in respect of all such
persons within the Provinces of Punjab and Delhi as the Chief Court of the
Punjab had such criminal jurisdiction over immediately before the
publication of these presents.”
22. Clauses 17 and 18, being pertinent, are extracted below:-
“17. And We do further ordain that the High Court of Judicature at Lahore
shall have extraordinary original criminal jurisdiction over all persons
residing in places within the jurisdiction of any Court subject to its
superintendence, and shall have authority to try at its discretion any such
persons brought before it on charges preferred by any magistrate or other
officer specially empowered by the Government in that behalf.
18. And We do further ordain that there shall be no appeal to the High
Court of Judicature at Lahore from any sentence or order passed or made by
the Courts of original criminal jurisdiction which may be constituted by
one or more Judges of the said High Court. But it shall be at the
discretion of any such court to reserve any point or points of law for the
opinion of the said High Court.”
[underlining is ours]
23. It is worthy to mention here that Clause 10 of the Letters Patent
establishing the Lahore High Court (which is applicable to the Hon’ble
Punjab & Haryana High Court) is in pari materia to Clause 15 of the Letters
Patent of the Chartered High Courts. The four-Judge Bench, in South Asia
Industries Private Ltd v. S.B. Sarup Singh and others[4], speaking through
Subba Rao, J. (as His Lordship then was) referred to Clauses 10 and 11 of
the Letters Patent and, in that context, ruled:-
“A plain reading of the said clause indicates that except in the 3 cases
excluded an appeal lay against the judgment of a single Judge of the High
Court to the High Court in exercise of any other jurisdiction. As the
clause then stood, it would appear that an appeal lay against the judgment
of a single Judge of the High Court made in exercise of second appellate
jurisdiction without any limitation thereon. The effect of the amendment
made in 1928, so far as is relevant to the present enquiry, is the
exclusion of the right of appeal from a judgment passed by a single Judge
sitting in second appeal unless the Judge who passed the judgment grants a
certificate that the case is a fit one for appeal.”
[Emphasis added]
The Court in the said case after referring to number of authorities
also observed:-
“A statute may give a right of appeal from an order of a tribunal or a
Court to the High Court without any limitation thereon. The appeal to the
High Court will be regulated by the practice and procedure obtaining in the
High Court. Under the rules made by the High Court in exercise of the
powers conferred on it under s. 108 of the Government of India Act, 1915,
an appeal under s. 39 of the Act will be heard by a single Judge. Any
judgment made by the single Judge in the said appeal will, under cl. 10 of
the Letters Patent, be subject to an appeal to that Court. If the order
made by a single Judge is a judgment and if the appropriate Legislature
has, expressely or by necessary implication, not taken away the right of
appeal, the conclusion is inevitable that an appeal shall lie from the
judgment of a single Judge under cl. 10 of the Letters Patent to the High
Court. It follows that, if the Act had not taken away the Letters Patent
appeal, an appeal shall certainly lie from the judgment of the single Judge
of the High Court.”
[underlining is ours]
24. From the aforesaid authority, two aspects are absolutely clear.
First, where an appeal is not excluded against the judgment of the High
Court of a Single Judge, an appeal would lie to the Division Bench and
second, if the appropriate Legislature has expressly or by necessary
implication not taken away a right of appeal, the appeal shall lie from the
Single Judge under Clause 10 of the Letters Patent to the High Court.
25. In this context, reference to the Constitution Bench judgment in
Jamshed N. Guzdar v. State of Maharashtra and others[5] would be apposite.
In the said case, the controversy arose pertaining to the constitutional
validity of the Bombay City Civil Court and Bombay Court of Small Causes
(Enhancement of Pecuniary Jurisdiction and Amendment) Act, 1986
(Maharashtra Act 15 of 1987) (for short “the 1987 Act”), Maharashtra High
Court (Hearing of Writ Petitions by Division Bench and Abolition of Letters
Patent Appeals) Act, 1986 (Maharashtra Act 17 of 1986) (for short “the 1986
Act”) and Madhya Pradesh Uchcha Nyayalaya (Letters Patent Appeals Samapti)
Adhiniyam, 1981 (for short ‘the Adhiniyam’) by which State Legislatures had
abolished the intra-court appeals provided under the Letters Patent. It is
apt to note here that the Full Bench of the Madhya Pradesh High Court, by
majority opinion, had struck down the legislation abolishing Letters Patent
Appeal as invalid.
26. The principal question that emerged for consideration related to the
legislative competence of the State Legislatures in passing the above named
enactments. The Constitution Bench held thus:-
“73. … Entry 46 of List III relates to jurisdiction and power of all
courts except the Supreme Court i.e. including the City Civil Court and
High Court with respect to any matter in List III including the Civil
Procedure Code in Entry 13. The contention that merely constituting and
organising High Courts without conferring jurisdiction to deal with the
matters on them does not serve any purpose, cannot be accepted. The
Constitution itself has conferred jurisdiction on High Courts, for
instance, under Articles 226 and 227. This apart, under various enactments,
both Central and State, certain jurisdiction is conferred on High Courts.
The High Courts have power and jurisdiction to deal with such matters as
are conferred by the Constitution and other statutes. This power of
“administration of justice” has been included in the Concurrent List after
3-1-1977 possibly to enable both the Centre as well as the States to confer
jurisdiction on High Courts under various enactments passed by the Centre
or the State to meet the needs of the respective States in relation to
specific subjects. Thus, viewed from any angle, it is not possible to agree
that the 1987 Act and the 1986 Act are beyond the competence of the State
Legislature.
74. We are, therefore, of the view that there is no merit in the contention
that the State Legislature did not have competence to enact the two
legislations, the constitutionality of which has been challenged before
us.”
And again:-
“88. The argument that the 1986 Act or the Adhiniyam encroaches upon the
legislative power of Parliament, cannot be accepted, in the view we have
taken that it was competent for the State Legislatures to pass law relating
to general jurisdiction of the High Courts dealing with the topic
“administration of justice” under Entry 11-A of List III. Assuming that
incidentally the 1986 Act and the Adhiniyam touch upon the Letters Patent,
the 1986 Act and the Adhiniyam cannot be declared either as
unconstitutional or invalid applying doctrine of pith and substance having
due regard to the discussion already made above while dealing with the
legislative competence of the State in passing the 1987 Act.”
27. On the aforesaid analysis, the Court set aside the judgment of the Full
Bench of the High Court of Madhya Pradesh and dismissed the writ petitions
filed by others challenging the 1986 Act and the 1987 Act. Thus, it has
been clearly held that the State Legislature has competence to amend the
Letters Patent.
28. The purpose of referring to this judgment is that till a competent
legislature takes away the power of the Letters Patent, the same can be
exercised by the High Court. However, while exercising the power under the
Letters Patent, it is imperative to see what is the nature of jurisdiction
that has actually been provided in the Letters Patent. The exercise of
jurisdiction has to be within the ambit and scope of the authority
enshrined in the provision meant for intra-court appeal.
29. At this stage, we may refer to some of the pronouncements commended
to us by the learned senior counsel for the appellant. In Commissioner of
Income-Tax, Bombay & another v. Ishwarlal Bhagwandas and others[6], the
High Court of Bombay under Article 226 of the Constitution had quashed the
orders passed by the Income Tax Officer and the Commissioner of Income Tax.
Against the orders passed by the High Court, the Commissioner of Income
Tax and the Income Tax Officer prayed for grant of certificate to the High
Court and after grant of such certificate, appealed to this Court. At the
commencement of hearing of the appeal, the learned counsel for the assessee
raised a preliminary objection that the appeal filed by the revenue was
incompetent because the High Court had no power under Article 133 of the
Constitution to certify a proposed appeal against an order in a proceeding
initiated by a petition for the issue of a writ under Article 226 of the
Constitution inasmuch as the proceeding before the High Court was not “a
civil proceeding” within the meaning of Article 133.
30. The Court referred to Article 133 of the Constitution and took note
of the submission that the jurisdiction exercised by the High Court as
regards the grant of certificate pertains to judgment, decree or final
order of a High Court in a civil proceeding and that “civil proceeding”
only means a proceeding in the nature of or triable as a civil suit and a
petition for the issue of a high prerogative writ by the High Court was not
such a proceeding. Additionally, it was urged that even if the proceeding
for issue of a writ under Article 226 of the Constitution may, in certain
cases, be treated as a civil proceeding, it cannot be so treated when the
party aggrieved seeks relief against the levy of tax or revenue claimed to
be due to the State. The Court, delving into the nature of civil
proceedings, noted that:-
“The expression "civil proceeding" is not defined in the Constitution, nor
in the General Clauses Act. The expression in our judgment covers all
proceedings in which a party asserts the existence of a civil right
conferred by the civil law or by statute, and claims relief for breach
thereof.”
31. After so stating, the Court elucidated the nature of criminal
proceeding and, in that regard, ruled thus:-
“A criminal proceeding on the other hand is ordinarily one in which if
carried to its conclusion it may result in the imposition of sentences such
as death, imprisonment, fine or forfeiture of property. It also includes
proceedings in which in the larger interest of the State, orders to prevent
apprehended breach of the peace, orders to bind down persons who are a
danger to the maintenance of peace and order, or orders aimed at preventing
vagrancy are contemplated to be passed.”
32. Explicating the concept further, the Court opined that:-
“The character of the proceeding, in our judgment, depends not upon the
nature of the tribunal which is invested with authority to grant relief but
upon the nature of the right violated and the appropriate relief which may
be claimed.”
33. It further held that a civil proceeding is, therefore, one in which a
person seeks to enforce by appropriate relief the alleged infringement of
his civil rights against another person or the State, and which, if the
claim is proved, would result in the declaration, express or implied, of
the right claimed and relief such as payment of debt, damages,
compensation, delivery of specific property, enforcement of personal
rights, determination of status, etc.
34. The aforesaid authority makes a clear distinction between a civil
proceeding and a criminal proceeding. As far as criminal proceeding is
concerned, it clearly stipulates that a criminal proceeding is ordinarily
one which, if carried to its conclusion, may result in imposition of (i)
sentence, and (ii) it can take within its ambit the larger interest of the
State, orders to prevent apprehended breach of peace and orders to bind
down persons who are a danger to the maintenance of peace and order. The
Court has ruled that the character of the proceeding does not depend upon
the nature of the tribunal which is invested with the authority to grant
relief but upon the nature of the right violated and the appropriate relief
which may be claimed.
35. In this regard, reference to Umaji Keshao Meshram & others v.
Radhikabai & another[7] would be fruitful. In the said case, the
controversy arose whether an appeal lies under Clause 15 of the Letters
Patent of the Bombay High Court to a Division Bench of two judges of that
High Court from the judgment of a Single Judge of that High Court in a
petition filed under Article 226 or 227 of the Constitution of India. The
Court referred to the Letters Patent of Calcutta, Bombay and Madras High
Courts which are pari materia in the same terms with minor variations that
have occurred due to amendments made subsequently. The Court referred to
the provisions of the Government of India Act, the Indian Independence Act,
1947 and the debates of the Constituent Assembly and observed that the
historical evidence shows that our Constitution did not make a break with
the past. It referred to some earlier authorities and, eventually, came to
hold that:-
“92. The position which emerges from the above discussion is that under
clause 15 of the Letters Patent of the Chartered High Courts, from the
judgment (within the meaning of that term as used in that clause) of a
Single Judge of the High Court an appeal lies to a Division Bench of that
High Court and there is no qualification or limitation as to the nature of
the jurisdiction exercised by the Single Judge while passing his judgment,
provided an appeal is not barred by any statute (for example, Section 100-A
of the Code of Civil Procedure, 1908) and provided the conditions laid down
by clause 15 itself are fulfilled. The conditions prescribed by clause 15
in this behalf are: (1) that it must be a judgment pursuant to Section 108
of the Government of India Act of 1915, and (2) it must not be a judgment
falling within one of the excluded categories set out in clause 15.”
And again:-
“100. According to the Full Bench even were clause 15 to apply, an appeal
would be barred by the express words of clause 15 because the nature of the
jurisdiction under Articles 226 and 227 is the same inasmuch as it consists
of granting the same relief, namely, scrutiny of records and control of
subordinate courts and tribunals and, therefore, the exercise of
jurisdiction under these articles would be covered by the expression
“revisional jurisdiction” and “power of superintendence”. We are afraid,
the Full Bench has misunderstood the scope and effect of the powers
conferred by these articles. These two articles stand on an entirely
different footing. As made abundantly clear in the earlier part of this
judgment, their source and origin are different and the models upon which
they are patterned are also different. Under Article 226 the High Courts
have power to issue directions, orders and writs to any person or authority
including any Government. Under Article 227 every High Court has power of
superintendence over all courts and tribunals throughout the territory in
relation to which it exercises jurisdiction. The power to issue writs is
not the same as the power of superintendence. By no stretch of imagination
can a writ in the nature of habeas corpus or mandamus or quo warranto or
prohibition or certiorari be equated with the power of superintendence.
These are writs which are directed against persons, authorities and the
State. The power of superintendence conferred upon every High Court by
Article 227 is a supervisory jurisdiction intended to ensure that
subordinate courts and tribunals act within the limits of their authority
and according to law (see State of Gujarat v. Vakhatsinghji Vajesinghji
Vaghela[8] and Ahmedabad Mfg. & Calico Ptg. Co. Ltd. v. Ram Tahel
Ramnand[9]). The orders, directions and writs under Article 226 are not
intended for this purpose and the power of superintendence conferred upon
the High Courts by Article 227 is in addition to that conferred upon the
High Courts by Article 226. Though at the first blush it may seem that a
writ of certiorari or a writ of prohibition partakes of the nature of
superintendence inasmuch as at times the end result is the same, the nature
of the power to issue these writs is different from the supervisory or
superintending power under Article 227. The powers conferred by Articles
226 and 227 are separate and distinct and operate in different fields. The
fact that the same result can at times be achieved by two different
processes does not mean that these two processes are the same.”
36. In the ultimate analysis, the two-Judge Bench held that the petition
filed by the appellant before the Nagpur Bench of the Bombay High Court was
admittedly under Article 227 of the Constitution and under the rules of the
High Court, it was heard by a Single Judge and under Clause 15 of the
Letters Patent of that High Court, an intra-court appeal
against the decision of the learned Single Judge was expressly barred.
37. In this context, a reference to a two-Judge Bench decision in Ashok
K. Jha and others v. Garden Silk Mills Limited and another[10] would be
profitable. The question that arose for consideration was whether an
appeal under Clause 15 of the Letters Patent of the High Court of Bombay
was maintainable from the judgment and order passed by the learned Single
Judge in a special civil application. The controversy had arisen from the
dispute raised before the Labour Court. The matter travelled through the
Industrial Court in appeal which was challenged before the High Court under
Articles 226 and 227 of the Constitution of India. While dealing with the
issue of maintainability, the Court referred to Umaji Keshao Meshram
(supra), Kishorilal v. Sales Officer, District Land Development Bank[11],
State of Madhya Pradesh and others v. Visan Kumar Shiv Charan Lal[12] and
Sushilabai Laxminarayan Mudliyar and others v. Nihalchand Waghajibhai Shaha
and others [13] and ultimately held that:-
“35. In Visan Kumar Shiv Charan Lal (supra) this Court further held that
the determining factor is the real nature of principal order passed by the
Single Judge which is appealed against and neither mentioning in the cause-
title of the application of both the articles nor granting of ancillary
order thereupon by the Single Judge would be relevant and in each case the
Division Bench must consider the substance of the judgment under appeal to
ascertain whether the Single Judge has mainly or principally exercised his
jurisdiction under Article 226 or Article 227 of the Constitution. In
Ramesh Chandra Sankla[14] this Court held:
“47. In our judgment, the learned counsel for the appellant is right in
submitting that nomenclature of the proceeding or reference to a particular
article of the Constitution is not final or conclusive. He is also right in
submitting that an observation by a Single Judge as to how he had dealt
with the matter is also not decisive. If it were so, a petition strictly
falling under Article 226 simpliciter can be disposed of by a Single Judge
observing that he is exercising power of superintendence under Article 227
of the Constitution. Can such statement by a Single Judge take away from
the party aggrieved a right of appeal against the judgment if otherwise the
petition is under Article 226 of the Constitution and subject to an intra-
court/letters patent appeal? The reply unquestionably is in the negative….”
38. The Court in the said case accepted the decision rendered in Ramesh
Chandra Sankla (supra) and opined that a statement by a learned Single
Judge that he has exercised power under Article 227 cannot take away the
right of appeal against such judgment if the power is otherwise found to
have been exercised under Article 226. The vital factor for determination
of the maintainability of the intra-court appeal is the nature of
jurisdiction invoked by the party and the true nature of the order passed
by the learned Single Judge.
39. In Radhey Shyam and another v. Chhabi Nath and others[15], the issue
arose with regard to the correctness of the decision in Surya Dev Rai v.
Ram Chander Rai[16] before the three-Judge Bench. The three-Judge Bench
referred to Naresh Shridhar Mirajkar v. State of Maharashtra[17] wherein
this Court came to the conclusion that “Certiorari does not lie to quash
the judgments of inferior courts of civil jurisdiction.” It adverted to the
authority in Surya Dev Rai (supra) copiously and weighed it in the backdrop
of other authorities and compared it with the English law principles and
ruled that:-
“26. The Bench in Surya Dev Rai (supra) also observed in para 25 of its
judgment that distinction between Articles 226 and 227 stood almost
obliterated. In para 24 of the said judgment distinction in the two
articles has been noted. In view thereof, observation that scope of
Articles 226 and 227 was obliterated was not correct as rightly
observed[18] by the referring Bench in para 32 quoted above. We make it
clear that though despite the curtailment of revisional jurisdiction under
Section 115 CPC by Act 46 of 1999, jurisdiction of the High Court under
Article 227 remains unaffected, it has been wrongly assumed in certain
quarters that the said jurisdiction has been expanded. Scope of Article 227
has been explained in several decisions including Waryam Singh v.
Amarnath[19], Ouseph Mathai v. M. Abdul Khadir[20], Shalini Shyam Shetty v.
Rajendra Shankar Patil[21] and Sameer Suresh Gupta v. Rahul Kumar
Agarwal[22].”
40. The ultimate conclusion arrived at in the said case is that:-
“27. … we are of the view that judicial orders of civil courts are not
amenable to a writ of certiorari under Article 226. We are also in
agreement with the view19 of the referring Bench that a writ of mandamus
does not lie against a private person not discharging any public duty.
Scope of Article 227 is different from Article 226.”
41. The Court clarified the position by adding that:-
“28. We may also deal with the submission made on behalf of the respondent
that the view in Surya Dev Rai (supra) stands approved by larger Benches in
Shail[23], Mahendra Saree Emporium (2)[24] and Salem Advocate Bar Assn.
(2)[25] and on that ground correctness of the said view cannot be gone into
by this Bench. In Shail (supra), though reference has been made to Surya
Dev Rai (supra), the same is only for the purpose of scope of power under
Article 227 as is clear from para 3 of the said judgment. There is no
discussion on the issue of maintainability of a petition under Article 226.
In Mahendra Saree Emporium (2) (supra), reference to Surya Dev Rai (supra)
is made in para 9 of the judgment only for the proposition that no
subordinate legislation can whittle down the jurisdiction conferred by the
Constitution. Similarly, in Salem Advocate Bar Assn. (2) (supra) in para
40, reference to Surya Dev Rai (supra) is for the same purpose. We are,
thus, unable to accept the submission of the learned counsel for the
respondent.”
42. In the ultimate eventuate, the three-Judge Bench answered the
reference as follows:-
“29.1. Judicial orders of the civil court are not amenable to writ
jurisdiction under Article 226 of the Constitution.
29.2. Jurisdiction under Article 227 is distinct from jurisdiction under
Article 226.
29.3. Contrary view in Surya Dev Rai (supra) is overruled.”
43. Recently, in Jogendrasinhji Vijaysinghji v. State of Gujarat and
others[26] the Court was dealing with a batch of appeals that arose from
the High Court of Gujarat as regards the maintainability of Letters Patent
Appeal. The Court referred to the nine-Judge Bench decision in Naresh
Shridhar Mirajkar (supra) and the three-Judge Bench decision in Radhey
Shyam (supra) and ruled that a judicial order passed by the civil court can
only be assailed and scrutinised under Article 227 of the Constitution and,
hence, no intra-court appeal is maintainable.
44. As the controversy related to further two aspects, namely, whether
the nomenclature of article is sufficient enough and further, whether a
tribunal is a necessary party to the litigation, the two-Judge Bench
proceeded to answer the same. In that context, the Court referred to the
authorities in Lokmat Newspapers (P) Ltd. v. Shankarprasad[27], Kishorilal
(supra), Ashok K. Jha (supra) and Ramesh Chandra Sankla (supra) and opined
that maintainability of a letters patent appeal would depend upon the
pleadings in the writ petition, the nature and character of the order
passed by the learned Single Judge, the type of directions issued regard
being had to the jurisdictional perspectives in the constitutional context.
It further observed that barring the civil court, from which order as held
by the three-Judge Bench in Radhey Shyam (supra) that a writ petition can
lie only under Article 227 of the Constitution, orders from tribunals
cannot always be regarded for all purposes to be under Article 227 of the
Constitution. Whether the learned Single Judge has exercised the
jurisdiction under Article 226 or under Article 227 or both, would depend
upon various aspects. There can be orders passed by the learned Single
Judge which can be construed as an order under both the articles in a
composite manner, for they can co-exist, coincide and imbricate. It was
reiterated that it would depend upon the nature, contour and character of
the order and it will be the obligation of the Division Bench hearing the
letters patent appeal to discern and decide whether the order has been
passed by the learned Single Judge in exercise of jurisdiction under
Article 226 or 227 of the Constitution or both. The two-Judge Bench further
clarified that the Division Bench would also be required to scrutinise
whether the facts of the case justify the assertions made in the petition
to invoke the jurisdiction under both the articles and the relief prayed on
that foundation. The delineation with regard to necessary party not being
relevant in the present case, the said aspect need not be adverted to.
45. We have referred to these decisions only to highlight that it is
beyond any shadow of doubt that the order of civil court can only be
challenged under Article 227 of the Constitution and from such challenge,
no intra-court appeal would lie and in other cases, it will depend upon the
other factors as have been enumerated therein.
46. At this stage, it is extremely necessary to cull out the conclusions
which are deducible from the aforesaid pronouncements. They are:-
(a) An appeal shall lie from the judgment of a Single Judge to a Division
Bench of the High Court if it is so permitted within the ambit and sweep
of the Letters Patent.
(b) The power conferred on the High Court by the Letters Patent can be
abolished or curtailed by the competent legislature by bringing appropriate
legislation.
(c) A writ petition which assails the order of a civil court in the High
Court has to be understood, in all circumstances, to be a challenge under
Article 227 of the Constitution and determination by the High Court under
the said Article and, hence, no intra-court appeal is entertainable.
(d) The tenability of intra-court appeal will depend upon the Bench
adjudicating the lis as to how it understands and appreciates the order
passed by the learned Single Judge. There cannot be a straitjacket formula
for the same.
47. In the case at hand, learned counsel for the respondent State would
submit that when a writ of certiorari is issued, it is a prerogative writ
and, therefore, an appeal would lie to the Division Bench. He has
emphatically commended us to the pronouncement in Hari Vishnu Kamath v.
Syed Ahmad Ishaque and others[28]. In the said case, the Court has
referred to the earlier decision in T.C. Basappa v. T. Nagappa[29] and held
that:-
“… ‘Certiorari’ will be issued for correcting errors of jurisdiction, as
when an inferior Court or Tribunal acts without jurisdiction or in excess
of it, or fails to exercise it. (2) ‘Certiorari’ will also be issued when
the Court or Tribunal acts illegally in the exercise of its undoubted
jurisdiction, as when it decides without giving an opportunity to the
parties to be heard, or violates the principles of natural justice. (3) The
Court issuing a writ of certiorari acts in exercise of a supervisory and
not appellate jurisdiction. One consequence of this is that the Court will
not review findings of fact reached by the inferior Court or Tribunal, even
if they be erroneous. This is on the principle that a Court which has
jurisdiction over a subject-matter has jurisdiction to decide wrong as well
as right, and when the Legislature does not choose to confer a right of
appeal against that decision, it would be defeating its purpose and policy,
if a superior Court were to re-hear the case on the evidence, and
substitute its own findings in certiorari. These propositions -are well
settled and are not in dispute.”
48. It is propounded by Mr. Visen that a writ of certiorari can be issued
on many a ground and when the learned Single Judge has issued a writ of the
present nature in quashing the order of the Upa-Lokayukta, it has to be
treated as an order under Article 226 of the Constitution of India. That
apart, he urged that the issue whether it would be under Article 226 or 227
is to be determined by the Division Bench of the High Court.
49. The aforesaid argument suffers from a fundamental fallacy. It is
because the submission is founded on the plinth of whether the writ
jurisdiction has been exercised under Article 226 or 227 of the
Constitution. It does not take note of the nature of jurisdiction and the
relief sought. If the proceeding, nature and relief sought pertain to
anything connected with criminal jurisdiction, intra-court appeal would not
lie as the same is not provided in Clause 10 of the Letters Patent.
Needless to emphasise, if an appeal in certain jurisdictions is not
provided for, it cannot be conceived of. Therefore, the reliance placed
upon the larger Bench authority in Hari Vishnu Kamath (supra) does not
render any assistance to the argument advanced by the learned counsel for
the respondent-State.
50. The crux of the present matter is whether the learned Single Judge
has exercised “civil jurisdiction” or “criminal jurisdiction”. In that
regard, Mr. Visen has strenuously contended that the Lokayukta is a quasi-
judicial authority and the proceeding being quasi-judicial in nature, it
cannot be regarded as one relatable to criminal jurisdiction, but it may be
treated as a different kind or category of civil proceeding. His argument
is supported by the Full Bench decision of the High Court of Andhra Pradesh
in Gangaram Kandaram v. Sunder Chikha Amin and others[30]. In the said
case, a writ petition was filed for issue of a writ of mandamus to declare
the action of the respondents in registering crimes under Sections 420 and
406 of the Indian Penal Code against the writ petitioner in FIR Nos. 14/97,
137/97 and 77/97 as illegal and to quash the same. The learned Single Judge
had allowed the writ petition by order dated 06.08.1997 and quashed the
FIRs. The order passed by the learned Single Judge was assailed by the 7th
respondent in intra-court appeal. The Full Bench posed the following
question:-
“Whether appeal under Clause 15 of the Letters Patent of the Court lies
against the judgment in such a case. In other words, whether a proceeding
for quashing of investigation in a criminal case under Article 226 of the
Constitution of India is a civil proceeding and the judgment as above is a
judgment in a civil proceeding in exercise of the original jurisdiction of
the Court for the purposes of appeal under Clause 15 of the Letters
Patent."
51. Dwelling upon the said issue, the Court referred to the authority in
State of Haryana and others v. Bhajanlal and others[31] wherein the Court
had categorised certain aspects of the case as illustrations wherein power
under Article 226 or the inherent power under Section 482 CrPC can be
exercised. Be it noted, the Court gave a note of caution to the effect that
the power of quashing a criminal proceeding should be exercised very
sparingly and with circumspection and that too in the rarest of rare cases
and further, the Court will not be justified in embarking upon an enquiry
as to the reliability or genuineness or otherwise of the allegations made
in the FIR or the complaint and that the extraordinary or inherent powers
do not confer an arbitrary jurisdiction on the Court to act according to
its whim or caprice. The Full Bench, after referring to the same, adverted
to the authorities in Rashmi Kumar v. Mahesh Kumar Bhada[32] and Rajesh
Bajaj v. State NCT of Delhi[33], deliberated upon the maintainability of
the appeal and, in that regard, stated thus:-
“15. As per Clause 15 of Letters Patent, no appeal shall lie against the
judgment of one Judge of the said High Court or one Judge of any Division
Bench passed in exercise of appellate jurisdiction in respect of decree or
order made in exercise of appellate jurisdiction by a Court subject to the
superintendence of the said High Court and not being an order made in
exercise of the revisional jurisdiction and not being a sentence or order
passed or made in exercise of power of superintendence of Section 107 of
Government of India Act or in exercise of criminal jurisdiction. An appeal
shall lie to the Division Bench under Clause 15 of Letters Patent from the
judgment of one Judge of the High Court or one Judge of any Division Bench.
The appeal from judgments of single Judges of the High Court shall lie to
the Division Bench except the judgments prohibited by Clause 15. The
learned single Judge while exercising the extraordinary jurisdiction under
Article 226 quashed the criminal proceedings. In our view, the exercise
powers under Article 226 of the Constitution by issuing a writ in quashing
the FIR is not in exercise of criminal jurisdiction. No doubt against the
order under Section 482 of Cr.P.C. or against the proceedings under
Contempt of Court, no appeal will lie under Clause 15 of Letters Patent,
but against the judgments quashing the FIR is in exercise of the original
jurisdiction of the Court under Article 226, writ appeal lies under Clause
15 of Letters Patent. Issuing a writ of mandamus or certiorari by the High
Court under Article 226 pertaining to a criminal complaint or proceeding
cannot be said to be an order passed in exercise of the criminal
jurisdiction. Therefore, we hold that an appeal lies under Clause 15 of
Letters Patent.”
[Emphasis added]
52. According to Mr. Visen, learned counsel for the respondent State, the
view expressed by the Andhra Pradesh High Court is absolutely defensible in
law and, therefore, the appeal being maintainable, the order impugned in
the present appeal does not warrant any interference.
53. Dr. Dhawan, learned senior counsel, has commended us to two
authorities – one by the Division Bench of Gujarat High Court and the other
by the Full Bench of High Court of Delhi. In Sanjeev Rajendrabhai Bhatt v.
State of Gujarat & others[34], two appeals being Special Criminal
Application Nos. 6 and 24 of 1998 arose out of a common order passed by the
learned Single Judge. The learned Single Judge, by the impugned order,
upheld the preliminary objection raised on behalf of the State of Rajasthan
that the High Court of Gujarat had no territorial jurisdiction in the
matter as the proceedings were initially conducted in the Court of Chief
Judicial Magistrate, Pali situated in Rajasthan. The maintainability of the
objections on the ground of want of territorial jurisdiction was the
subject matter of appeal before the Division Bench. The Court posed two
questions and the primary one pertained to the maintainability of Letters
Patent Appeal. For the aforesaid purpose, the appellate Bench thought it
appropriate to pose the following two questions:-
“First, whether an order passed by the learned single Judge can be said to
have been made in the exercise of extraordinary powers under Article 226 of
the Constitution or in the exercise of supervisory jurisdiction under
Article 227 of the Constitution. Secondly, whether the order passed by the
learned single Judge can be said to have been passed in the exercise of
criminal jurisdiction within the meaning of Clause 15 of the Letters
Patent.”
54. The Division Bench referred to Umaji Keshao Meshram (supra),
adverted to the decisions in Supreme Court Bar Association v. Union of
India and another[35] and A.R. Antulay v. R.S. Nayak and another[36] (as
Article 21 was also raised as an issue) and came to hold that it would not
be advisable to express final opinion on the question whether the petitions
filed by the petitioners can be said to be under Article 226 or Article 227
of the Constitution. Proceeding on the other score, the Court analysed the
various provisions of the CrPC, namely, Sections 109, 200, 202, sub-section
(3) of Section 156 and various clauses of the Letters Patent, distinguished
the decision in State of Gujarat v. Jayantilal Maganlal Patel[37] and
distinguished the same by holding that the observations of the Division
Bench cannot be construed to mean that when a petition is filed
under Article 226 of the Constitution, L.P.A. would lie irrespective of the
fact that such question might have arisen in exercise of criminal
jurisdiction.
55. It is worthy to note that a series of decisions were cited on behalf
of the appellants therein including a Full Bench judgment of the Gujarat
High Court in Patel Kashiram Lavjibhai v. Narottamdas Bechardas &
others[38] wherein the Full Bench considered Articles 226 and 227 of the
Constitution in the light of various decisions of this Court and deduced
certain principles. The Division Bench distinguished the said decision on
the ground that the Full Bench did not lay down as a proposition of law
that LPAs would be maintainable even if an order was passed by the learned
Single Judge in exercise of criminal jurisdiction, for the case before the
Full Bench related to right in land and the question was whether the power
exercised by the learned Single Judge was under Article 226 or under
Article 227 of the Constitution. Eventually, the Court referred to
Ishwarlal Bhagwandas (supra) and opined thus:-
“80. In our considered opinion, in the instant case, the proceedings can be
said to be criminal proceedings inasmuch as, carried to its conclusion,
they may result into imprisonment, fine etc. as observed by the Supreme
Court in Narayana Row.
81. From the totality of facts and circumstances, we have no hesitation in
holding mat the learned single Judge has passed an order in exercise of
criminal jurisdiction. At the cost of repetition, we reiterate what we have
already stated earlier that the proceedings were of a criminal nature.
Whether a criminal Court takes cognizance of an offence or sends a
complaint for investigation under Sub-section (3) of Section 156 of the
Code of Criminal Procedure, 1973 does not make difference so far as the
nature of proceedings is concerned. Even if cognizance is not taken, that
fact would not take out the case from the purview of criminal jurisdiction.
82. In our judgment, a proceeding under Article 226 of the Constitution
arising from an order passed or made by a Court in exercise or purported
exercise of power under the Code of Criminal Procedure is still a 'criminal
proceeding' within the meaning of Clause 15 of the Letters Patent. A
proceeding seeking to avoid the consequences of a criminal proceeding
initiated under the Code of Criminal Procedure will continue to remain
'criminal proceeding' covered by the bracketed portion of Clause 15 of the
Letters Patent.”
56. Being of this view, the Division Bench ruled that as Clause 15 of the
Letters Patent expressly bars an appeal against the order passed by a
Single Judge of the High Court in exercise of criminal jurisdiction, LPAs
are not maintainable and, accordingly, dismissed the same.
57. From the aforesaid analysis, it is demonstrable that the Gujarat High
Court has opined that relying on the authority of this Court in Ishwarlal
Bhagwandas (supra), the issue whether the proceedings are civil or not
would depend upon the nature of the right violated and the appropriate
relief which might be claimed and not upon the nature of the tribunal which
has been invested to grant relief. The Division Bench further opined that
even if cognizance is not taken in respect of a criminal case, it would not
take out the case from the purview of criminal jurisdiction. Thus, it has
been held by the Division Bench that when there is a proceeding under
Article 226 of the Constitution arising from an order made by a Court in
exercise of power under the Code of Criminal Procedure, it would be a
criminal proceeding within the meaning of Letters Patent.
58. The Full Bench of the High Court of Delhi in C.S. Agarwal v. State &
others[39] was dealing with a situation wherein a writ petition was filed
before the High Court under Article 226 of the Constitution of India read
with Section 482 of Cr.P.C. seeking for appropriate writ for quashing of
the FIR. As the writ petition was dismissed by the learned Single Judge,
an intra-court appeal was preferred. A preliminary objection was taken by
the respondents as regards the maintainability of the LPA contending that
the judgment of the learned Single Judge was passed in exercise of criminal
jurisdiction and the Letters Patent Appeal against such an order is barred
by Clause 10 and Clause 18 of the Letters Patent constituting the High
Court of Judicature at Lahore, which is applicable to the Judicature of
High Court of Delhi. The Full Bench analysed Clause 10 of the Letters
Patent and took note of what has been prohibited for entertaining any intra-
court appeal. The Full Bench, analyzing various decisions, opined thus:-
“… proceedings under Article 226 of the Constitution would be treated as
original civil proceedings only when it concerns civil rights. A fortiori,
if it concerns a criminal matter, then such proceedings would be original
criminal proceedings. Letters Patent would lie when the Single Judge
decides the writ petition in proceedings concerning civil rights. On the
other hand, if these proceedings are concerned with rights in criminal law
domain, then it can be said that the Single Judge was exercising his
‘criminal jurisdiction’ while dealing with such a petition filed under
Article 226 of the Constitution.”
59. After so stating, the Full Bench referred to the Constitution Bench
decision in Ishwarlal Bhagwandas (supra) and distinguished the Full Bench
decision of the Andhra High Court in Gangaram Kandaram (supra) and noted
the decision of the Division Bench of Gujarat High Court in Sanjeev
Rajendrabhai Bhat (supra) and came to hold as follows:-
“32. The test, thus, is whether criminal proceedings are pending or not and
the petition under Article 226 of the Constitution is preferred concerning
those criminal proceedings which could result in conviction and order of
sentence.
33. When viewed from this angle, it is clear that if the FIR is not
quashed, it may lead to filing of Challan by the investigating agency,
framing of charge and can result in conviction of order of sentence. Writ
of this nature filed under Article 226 of the Constitution. Seeking
quashing of such an FIR would therefore be “criminal proceedings” and while
dealing with such proceedings, the High Court exercises its “criminal
jurisdiction”.”
60. Being of this view, the Full Bench opined that the Letters Patent
Appeal was not maintainable. In this regard, learned counsel for the
appellant has also drawn our attention to the Division Bench judgment of
the Delhi High Court in Vipul Gupta v. State & Ors[40] wherein the Division
Bench, placing reliance on the Full Bench decision, has expressed the view
that though the writ petitions were not filed for quashing of FIR as in the
case of the Full Bench decision, yet the learned Single Judge was
exercising criminal jurisdiction, for the Lieutenant Governor of Delhi had
agreed with the proposal not to press the application for withdrawal of the
criminal case under Section 321 of the Cr.P.C. and allowed the trial court
to proceed on merits. In this factual backdrop, the Division Bench opined:-
“…Even though the challenge in the writ petitions was to a decision of
Hon’ble the Lieutenant Governor but the said decision was relating to the
prosecution already underway of the appellants and the direct effect of the
dismissal of the writ petitions is of continuation of the prosecution which
may result in imposition of sentences such as death, imprisonment, fine or
forfeiture of property, of the appellants. We are thus of the view that
this Court while dealing with the writ petitions was exercising its
criminal jurisdiction. It cannot be also lost sight of that the writ
petitions were intended to avoid the consequences of criminal proceedings
imitated under the Code of Criminal Procedure and concerned with rights in
criminal law domain. We have thus no doubt that the learned single Judge,
in dealing with the writ petitions was exercising “criminal jurisdiction”
and these Letters Patent Appeals are not maintainable.”
61. As we find from the decisions of the aforesaid three High Courts, it
is evident that there is no disagreement or conflict on the principle that
if an appeal is barred under Clause 10 or Clause 15 of the Letters Patent,
as the case may be, no appeal will lie. The High Court of Andhra Pradesh,
however, has held that when the power is exercised under Article 226 of the
Constitution for quashing of a criminal proceeding, there is no exercise of
criminal jurisdiction. It has distinguished the proceeding for quashing of
FIR under Section 482 CrPC and, in that context, has opined that from such
an order, no appeal would lie. On the contrary, the High Courts of Gujarat
and Delhi, on the basis of the law laid down by this Court in Ishwarlal
Bhagwandas (supra), have laid emphasis on the seed of initiation of
criminal proceeding, the consequence of a criminal proceeding and also the
nature of relief sought before the Single Judge under Article 226 of the
Constitution. The conception of ‘criminal jurisdiction’ as used in Clause
10 of the Letters Patent is not to be construed in the narrow sense. It
encompasses in its gamut the inception and the consequence. It is the field
in respect of which the jurisdiction is exercised, is relevant. The
contention that solely because a writ petition is filed to quash an
investigation, it would have room for intra-court appeal and if a petition
is filed under inherent jurisdiction under Section 482 CrPC, there would be
no space for an intra-court appeal, would create an anomalous, unacceptable
and inconceivable situation. The provision contained in the Letters Patent
does not allow or permit such an interpretation. When we are required to
consider a bar or non-permissibility, we have to appreciate the same in
true letter and spirit. It confers jurisdiction as regards the subject of
controversy or nature of proceeding and that subject is exercise of
jurisdiction in criminal matters. It has nothing to do whether the order
has been passed in exercise of extraordinary jurisdiction under Article 226
of the Constitution or inherent jurisdiction under Section 482 CrPC. In
this regard, an example can be cited. In the State of Uttar Pradesh,
Section 438 CrPC has been deleted by the State amendment and the said
deletion has been treated to be constitutionally valid by this Court in
Kartar Singh v. State of Punjab[41]. However, that has not curtailed the
extraordinary power of the High Court to entertain a plea of anticipatory
bail as has been held in Lal Kamlendra Pratap Singh v. State of Uttar
Pradesh and others[42] and Hema Mishra v. State of Uttar Pradesh and
others[43]. But that does not mean that an order passed by the Single
Judge in exercise of Article 226 of the Constitution relating to criminal
jurisdiction, can be made the subject matter of intra-court appeal. It is
not provided for and it would be legally inappropriate to think so.
62. In view of the aforesaid premised reasons, we hold that the High
Courts of Gujarat and Delhi have correctly laid down the law and the view
expressed by the Full Bench of the High Court of Andhra Pradesh is
incorrect.
63. We will be failing in our duty if we do not take note of an authority
cited by Mr. Visen. He has commended us to the Division Bench Judgment of
the High Court of Punjab and Haryana in Adishwar Jain v. Union of India and
another[44]. In the said case, the question arose with regard to the
maintainability of Letters Patent Appeal, for the Single Judge had
dismissed the writ of Habeas Corpus. The Division Bench, dealing with the
maintainability of LPA, referred to Umaji Keshao Meshram (supra) and
extracted the following passage:-
“By Article 226 the power of issuing prerogative writs possessed by the
Chartered High Courts prior to the commencement of the Constitution has
been made wider and more extensive and conferred upon every High Court.
The nature of the exercise of the power under Article 226, however, remains
the same as in the case of the power of issuing prerogative writs possessed
by the Chartered High Courts. A series of decision of this Court has
firmly established that proceeding under Article 226 is an original
proceeding and when it concerns civil rights, it is an original civil
proceeding.”
64. On the aforesaid basis, the Division Bench ruled that in a proceeding
under Article 226 consisting of civil rights, the proceedings are civil in
nature falling within the ambit of Clause 10 of the Letters Patent. In the
said case, the detention was under the COFEPOSA Act. The Court observed
that the said detention is purely preventive without any trial in a
criminal court and the challenge to such detention is for the enforcement
of a fundamental civil right and, therefore, a writ under Article 226 for
issue of Habeas Corpus in such like matters cannot be considered as a
proceeding under criminal jurisdiction even though the writ petition is
identified as a criminal writ petition under the High Court Rules and
others. The said decision has to be carefully appreciated. The
nomenclature of a writ petition is not the governing factor. What is
relevant is what is eventually being sought to be enforced. The Division
Bench observed that as there is a preventive detention, there is a
violation of fundamental civil right. The said decision, as is noticeable,
was rendered in a different context. We are only inclined to say that the
said authority does not assist the proposition expounded by the learned
counsel for the State.
65. In the case at hand, the writ petition was filed under Article 226 of
the Constitution for quashing of the recommendation of the Lokayukta. The
said recommendation would have led to launching of criminal prosecution,
and, as the factual matrix reveals, FIR was registered and criminal
investigation was initiated. The learned Single Judge analysed the report
and the ultimate recommendation of the statutory authority and thought it
seemly to quash the same and after quashing the same, as he found that FIR
had been registered, he annulled it treating the same as a natural
consequence. Thus, the effort of the writ petitioner was to avoid a
criminal investigation and the final order of the writ court is quashment
of the registration of FIR and the subsequent investigation. In such a
situation, to hold that the learned Single Judge, in exercise of
jurisdiction under Article 226 of the Constitution, has passed an order in
a civil proceeding as the order that was challenged was that of the quasi-
judicial authority, that is, the Lokayukta, would be conceptually
fallacious. It is because what matters is the nature of the proceeding,
and that is the litmus test.
66. In view of the aforesaid prismatic reasoning, the irresistible
conclusion is that the Letters Patent Appeal was not maintainable before
the Division Bench and, consequently, the order passed therein is wholly
unsustainable and, accordingly, it is set aside. However, as the State had
been diligently agitating its grievance in a legal forum which it thought
had jurisdiction, we grant liberty to the State to assail the order of the
learned Single Judge in accordance with law.
67. Consequently, the appeal is allowed and the impugned order is set
aside. However, liberty is granted to the State to challenge the order of
the learned Single Judge. There shall be no order as to costs.
..........................................J.
(Dipak Misra)
..........................................J.
(A.M. Khanwilkar)
..........................................J.
(Mohan M. Shantanagoudar)
New Delhi;
March 21, 2017.
-----------------------
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