2011 (1) TMI 1509 - HC - Indian Laws

Maintainability of LPA against a judgment or order passed in exercise of criminal jurisdiction - Held that - Both the sides are ad idem that when the writ petition is filed invoking original jurisdiction of this Court, LPA would be maintainable against the order passed by the Single Judge in such a writ petition. However, the parties have joined issues on the question as to whether writ petition filed for quashing the FIR should be treated as invoking criminal jurisdiction of this Court. Whereas Ajay Fotedar (2005 (7) TMI 688 - DELHI HIGH COURT ) suggests that such writ petition would be treated as invoking the criminal jurisdiction and LPA would not be maintainable, some of the observations made in Harwinder Singh (1994 (3) TMI 391 - DELHI HIGH COURT ) suggests otherwise. In view of this, we are of the opinion that the matter needs to be referred to the Full Bench to resolve this issue. Accordingly, we make following reference for consideration by the Full Bench - Whether the writ petition filed under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure for quashing a FIR amount to invoking original jurisdiction or these proceedings are to be treated as invoking criminal jurisdiction?

Issues Involved:
1. Maintainability of Letter Patent Appeal (LPA) against the judgment dismissing a writ petition filed under Article 226 of the Constitution read with Section 482 of the Code of Criminal Procedure for quashing an FIR.
2. Jurisdiction exercised by the Single Judge in the impugned judgment: whether it was "criminal jurisdiction" or "original jurisdiction."

Issue-wise Detailed Analysis:

1. Maintainability of Letter Patent Appeal (LPA):

The primary issue in this case is whether an LPA is maintainable against the judgment of a Single Judge who dismissed a writ petition filed under Article 226 of the Constitution read with Section 482 of the Code of Criminal Procedure (Cr.P.C.) for quashing an FIR. The respondents raised a preliminary objection, arguing that the judgment was passed in exercise of criminal jurisdiction, and thus, an LPA is barred under Clause 10 and Clause 18 of the Letters Patent constituting the High Court of Judicature at Lahore, which is applicable to the Delhi High Court.

The appellants countered this objection, asserting that the impugned judgment was passed in exercise of power under Article 226 of the Constitution, which falls within the ambit of the extraordinary original jurisdiction of the Delhi High Court. They argued that the nature of the proceedings before the Single Judge did not change merely because Section 482 Cr.P.C. was mentioned in the writ petition. The appellants relied on the judgment of the Full Bench of the High Court of Andhra Pradesh in Gangaram Kandaram Vs Sunder Chhikha Amin and others, which held that quashing an FIR under Article 226 is not in exercise of criminal jurisdiction, and thus, an LPA is maintainable.

The respondents, on the other hand, referred to the judgment of the Gujarat High Court in Sanjeev Rajendrabhai Bhatt v. State of Gujarat and Ors., which concluded that proceedings under Article 226 arising from an order passed by a court in exercise of power under the Cr.P.C. are still "criminal proceedings" within the meaning of Clause 15 of the Letters Patent, and thus, an LPA would not be maintainable.

2. Jurisdiction Exercised by the Single Judge:

The second issue is whether the Single Judge, while dismissing the writ petition, exercised "criminal jurisdiction" or "original jurisdiction." The appellants argued that the writ petition was filed for quashing the FIR, which is a statutory act, and thus, the Single Judge was exercising the extraordinary original jurisdiction conferred by the Constitution of India. They emphasized that the categorization of the writ petition as a "criminal writ" by the High Court registry is merely a procedural aspect for administrative convenience and does not alter the nature of the jurisdiction exercised by the Single Judge.

The respondents contended that the impugned order was passed in exercise of criminal jurisdiction, as the writ petition sought quashing of an FIR, which is inherently a criminal matter. They relied on the judgment of the Delhi High Court in Ajay Fotedar Vs State of NCT of Delhi and Ors., where it was held that a writ petition filed for quashing an FIR under Article 226 read with Section 482 Cr.P.C. is in the nature of "criminal proceedings," and thus, an LPA would not be maintainable.

The court noted that there are conflicting judgments on this issue. In Harwinder Singh v. Union of India and Others, the Delhi High Court held that an LPA is maintainable against the judgment of a Single Judge dismissing a writ petition challenging a preventive detention order, as such a writ petition invokes the original jurisdiction of the High Court. However, in Ajay Fotedar, the court held that a writ petition filed for quashing an FIR is in the nature of "criminal proceedings," and thus, an LPA would not be maintainable.

Given the conflicting judgments, the court referred the matter to a Full Bench to resolve the issue of whether a writ petition filed under Article 226 of the Constitution read with Section 482 Cr.P.C. for quashing an FIR amounts to invoking "original jurisdiction" or "criminal jurisdiction."

Conclusion:

The court directed the Registry to place the matter before the Hon'ble Chief Justice for constituting a Full Bench to resolve the issue of whether a writ petition filed under Article 226 of the Constitution read with Section 482 Cr.P.C. for quashing an FIR amounts to invoking "original jurisdiction" or "criminal jurisdiction." This determination is crucial for deciding the maintainability of the LPA in such cases.

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