TMI Blog2011 (1) TMI 1509X X X X Extracts X X X X X X X X Extracts X X X X ..... Criminal Procedure for quashing a FIR amount to invoking “original jurisdiction” or these proceedings are to be treated as invoking “criminal jurisdiction?” - LPA 819 OF 2010 & LPA 825 OF 2010 - - - Dated:- 14-1-2011 - A. K. Sikri And Suresh Kait, JJ. For the Appellant : Mr. Arvind K. Nigam, Mr. Sandeep Kumar Sethi, and Mr. Siddharth Luthra, Sr. Advocates with Mr. P.K. Dubey, Mr. Anurag Yadav, Ms. Ramjana Roy, Mr. Shailesh Suman and Mr. Arshdeep Singh, Advocates For the Respondents : Mr. Ramesh Gupta, Sr. Advocate with Mr. Rajinder Singh, Advocate for the complainant. Mr. Ranjit Kapoor, ASC for the State JUDGMENT A. K. Sikri, J. 1. This Letter Patent Appeal has been filed against the Judgment and order dated 11th November 2010 passed by the learned Single Judge dismissing the W.P. (Crl.) No.57 of 2010. The writ was filed under Article 226 of the Constitution read with Section 482 of the Code of Criminal Procedure by the appellant C.S. Aggarwal for quashing of FIR No. 264/2009 dated 23.12.2009 lodged against the appellant by the Economic Offences Wing, Crime and Railways, Delhi under Sections 420/406/120-B of the Indian Penal Code. 2. Succinctly stated, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 demanded back his money but all of his efforts in this direction went into vain. During the investigation, carried on by the respondent on its own, he came to know that it was falsely represented to him that RPL had 250 acres land and instead only 170 acres of land was available. Even the authority, which issued approval letter, was provided with wrong information on this account that the applicant fulfills the criteria of having a minimum of 250 acres of land for the purpose of development of SEZ. It was also revealed to the respondent no. 3 that as such no payment was made by the petitioner herein for the purpose of purchasing more land as agreed between the parties in the MoU and subsequently represented by the petitioner herein to the respondent no. 3. Under these circumstances, the respondent no. 3 filed a complaint dated 12.10.2009 at Hauz Khas police station. He also lodged a similar complaint dated 14.10.2009 with Dy. Commissioner of Police, Economic Offences Wing Crime and Railways, Delhi, in pursuant to which a FIR no.266/09 dated 23.12.2010 was registered against the appellant herein under Sections 420/406/120-B of the Indian Penal Code. 5. The appellant Sh. C.S. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of High Court of Delhi. (1) The High Court of Delhi shall have, in respect of the territories for the time being included in the Union territory of Delhi, all such original, appellate and other jurisdiction as, under the law in force immediately before the appointed day, is exercisable in respect of the said territories by the High Court of Punjab. (2) Notwithstanding anything contained in any law for the time being in force, the High Court of Delhi shall also have in respect of the said territories ordinary original civil jurisdiction in every suit the value of which exceeds rupees twenty lakhs. 10. Powers of Judges. (1) Where a single Judge of the High Court of Delhi exercises ordinary original civil jurisdiction conferred by sub-section (2) of section 5 on that Court, an appeal shall lie from the judgment of the single Judge to a Division Court of that High Court. (2) Subject to the provisions of sub- section (1), the law in force immediately before the appointed day relating to the powers of the Chief Justice, single Judges and Division Courts of the High Court of Punjab and with respect to all matters ancillary to the exercise of those powers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il, as hereinafter provided. 10. This clause clearly prohibits maintainability of an intra-court appeal if the impugned judgment is passed in exercise of: 1. Revisional Jurisdiction 2. The power of superintendence 3. Criminal Jurisdiction Similarly, clause 18 of the same Letter Patent provides that no appeal would lie from any sentence or order passed or made by the courts of original jurisdiction. 11. On the basis of aforesaid bar on the maintainability of LPA against a judgment or order passed in exercise of criminal jurisdiction , the respondents have raised the preliminary objection. As against this, the contention of the appellant is that the writ was filed for quashing of FIR and therefore it was in the nature of Certiorari as the registration of FIR under section 154 Cr. P. C. is a statutory act. He further contends that the nature of the proceedings before the Single Judge could not be said to have been changed just because of mentioning of section 482 Cr. P. C. in the writ petition filed under Art. 226 or the categorization of the same as criminal writ by the High Court registry. As far as nomenclature i.e. civil writ and criminal writ , as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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.PC 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 hol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llegal. However, direction that the investigation be carried out by an officer not below the rank of DGP was set aside. Rest of the order was confirmed. Investigation was conducted wherein it was prima facie found that offences under certain provisions of IPC and NDPS were committed. The offences were, therefore, registered as CR. FIR was registered in accordance therewith. Since the appellant/accused apprehended arrest, he approached the High Court by filing special criminal application under Article 226 of the Constitution of India, which as dismissed. Against that LPA was filed and in this backdrop question of maintainability of LPA arose and the Court held that such LPA was not maintainable. Following passages from the said judgment were pressed into service by the learned counsel for the respondent:- 13. So far as maintainability of LPAs is concerned, in our opinion, the point can be examined in the light of two questions; firstly 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ach this Court against any order passed by any Court or Government in exercise of criminal jurisdiction. Criminal trial was over and he was convicted. An appeal was pending in this Court. The question before the learned single Judge in a petition under Article 226 of the Constitution was inaction on the part of the Government in not deciding an application for extension of parole. In our considered opinion, the decision by the learned single Judge, in that petition cannot be said to be a decision in exercise of criminal jurisdiction. An intra-Court appeal against such decision was, therefore, competent. The power which was to be exercised by the State Government was neither under IPC nor under Cr. P.C. It was administrative or executive power under the Prison (Bombay Furlough and Parole) Rules, 1959. When the power was not exercised by Government, a grievance was made by the aggrieved party by invoking Article 226 of the Constitution and the learned single Judge passed an order. In our opinion, therefore, the observations of the Division Bench cannot be construed to mean that when petition is filed under Article 226 of the Constitution, LPA would lie irrespective of the fact that s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provision has been made. xxxxx xxxxx xxxxx xxxxx 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 etcj as observed by the Supreme Court in Narayan Row. 81. From the totality of facts and circumstances, we have no hesitation in holding that 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 proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an invoke it for his release, In fact, the right sought to be projected and enforced by the petitioner, is a fundamental right and his case is that his fundamental right is violated. (13) A detention under COFEPOSA is not a detention consequent on any finding of guilt; it is not penal at all. Detention order is made on the basis of suspicion based on relevant materials; the detention order is purely preventive, to prevent the detenu from indulging in certain activities for a specified period. We over rule the petitioner's objection. 18. That was a case of preventive detention and admittedly, there was no criminal case registered against the petitioners and he did not challenge the quashing of those criminal proceedings. However, as pointed out above, the appellants rest their arguments on the plea that even if criminal case is registered in the instant case, the appellants are seeking quashing of the FIR which power can be exercised under Article 226 of the Constitution by the High Court in exercise of original jurisdiction as filing of such petition should not be treated as the petition in criminal proceedings. 19. On the other hand, in the case of Ajay Fotedar, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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