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TMI Blog2017 (3) TMI 1780X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 - Appeal allowed. - Civil Appeal No. 4288 OF 2017 (arising out of S.L.P. (Civil) No. 15362 of 2016) - - - Dated:- 21-3-2017 - Dipak Misra, A.M. Khanwilkar And Mohan M. Shantanagoudar, JJ. For Petitioner(s) Dr. Rajeev Dhavan, Mr. Arunabh Chowdhury, Mr. Anu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gation 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 (2014) 2 SCC 1) with reference to the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs, 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 argu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the opinions of Kania, CJI and Das, J. in Associated Cement Companies Ltd. v. P.N. Sharma (AIR 1965 SC 1595) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional 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] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicates 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 wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rts 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal, 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 claime ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (1986 (Supp.) SCC 401) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (AIR 1968 SC 1481) and Ahmedabad Mfg. Calico Ptg. Co. Ltd. v. Ram Tahel Ramnand(1973) 1 SCR 185). 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 appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (2015) 5 SCC 423), the issue arose with regard to the correctness of the decision in Surya Dev Rai v. Ram ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a 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 (2015) 9 SCC 1) the Court was dealing with a batch of appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ief 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 Judgeto 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 LettersPatent 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 inthe High Court has to be understood, in all circumstances, to be a challenge under Article 227 of the Constitution and determin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment 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 app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ram (supra), adverted to the decisions in Supreme Court Bar Association v. Union of India and another and A.R. Antulay v. R.S. Nayak and another (AIR 1988 SC 1531) (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 (1995 (2) GLH 260) 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. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (2011 (125) DRJ 241 (FB) was dealing with a situation wherein a writ petition was filed before the High Court under Article 226 of the Constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (208 (2014) DLT 468 (DB) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 (1994) 3 SCC 569). 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 (2009) 4 SCC 437) and Hema Mishra v. State of Uttar Pradesh and others (2014) 4 SCC 453) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erved 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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