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2017 (3) TMI 1780

..... he nature of the post held by Lokayukta or Upa­Lokayukta. 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 Upa­Lokayukta 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. 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. 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 th .....

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..... 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 fur .....

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..... ve 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 .....

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..... s 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 (2013) 3 SCC 117). 12. First, we intend to advert to the position of the Lokayukta or Upa­Lokayukta as has been dealt with in Justice Chandrashekaraiah (supra). In the said case, Radhakrishnan, J. ruled that Lokayukta and UpaLokayukta act as quasi­judicial 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 quasi­judicial 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 Upa­Lokayukta, however, has no jurisdiction or power to direct th .....

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..... 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 UpaLokayukta does not determine the rights of the complainant or the person complained against. Consequently, the Upa­Lokayukta is neither a court nor a tribunal. Therefore, in my opinion, the Upa­Lokayukta can best be described as a sui generis quasi­judicial 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 (AIR 1965 SC 1595) and arrived at the following conclusion:­ As mentioned above, an Upa­Lokayukta 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 .....

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..... e 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 Cour .....

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..... [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 four­Judge Bench, in SouthAsia Industries Private Ltd v. S.B. Sarup Singh and others (1965) 2 SCR 756), 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 .....

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..... ourt 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 .....

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..... hwarlal Bhagwandas and others (1966) 1 SCR 190), 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 proceedin .....

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..... eding 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 (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 subsequ .....

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..... he 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 (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 u .....

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..... 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 intra­court/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 ma .....

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..... approved by larger Benches in Shail (2004) 4 SCC 785) , Mahendra Saree Emporium (2) (2005) 1 SCC 481) and Salem Advocate Bar Assn. (2) (2005) 6 SCC 344) 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 three­Judge 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 Ar .....

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..... of the Constitution or both. The two­Judge 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 intra­court 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 .....

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..... 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, intra­court 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 respondent­State. 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 Lokay .....

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..... SCC (Crl.) 401), 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 .....

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..... 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 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, sub­section (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 o .....

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..... xpressly 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 (2011 (125) DRJ 241 (FB) was dealing with a situation wherein a writ .....

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..... f 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 (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 eff .....

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..... n we are required to consider a bar or non­permissibility, 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 .....

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..... 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, .....

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