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2017 (3) TMI 1780

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..... ecommendation 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. Anupam Lal Das, Mr. Karma Dorjee, Mr. Vaibhav Tomar, Mr. Anirudh Singh .....

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..... /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 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 Bur .....

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..... g 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 re­constitute a Special Investigation Team comprising three senior IPS officers who originally do .....

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..... ccepts 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 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 Upa­Lokayukta, 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 quasi­judicial authority. The argument on behalf of the State was that Upa­Lokayukta is essentially required to investigate complaints and enquire into the grievances brought before it and, therefore, he may be exercising some quasi­judicial functions, but that does not .....

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..... cating 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 Upa­Lokayukta is a quasi­judicial authority or in any event an authority exercising functions, powers, duties and responsibilities conferred by the Act as a sui generis quasi­judicial authority. 15. The aforesaid pronouncement was rendered when the appointment of Upa­Lokayukta 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 Upa­Lokayukta. 16. The aforesaid paragraphs would clearly show that neither the Lokayukta nor Upa­Lokayukta 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 und .....

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..... 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 twenty­nine 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 .....

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..... sdiction 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 inevita .....

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..... gh 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 3­1­1977 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 Legisl .....

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..... 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 c .....

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..... 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 100­A of the Code of Civil Procedure, 1908) and prov .....

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..... rticle 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 two­Judge 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 intra­court appeal against the decision of the learned Single Judge was expressly barred. 37. In this context, a reference to a two­Judge Bench decision in Ashok K. Jha and others v. Garden Silk Mills Limited and another (2009) 10 SCC 584) would be profitable. The question that arose for consideration .....

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..... dra 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 intra­court 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 Chander Rai (2003) 6 SCC 675) before the three­Judge Bench. The three­Judge Bench referred to Naresh Shridhar Mirajkar v. State of Maharashtra (AIR 1967 SC 1) 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 dis .....

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..... 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 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 appeals that arose from the High Court of Gujarat as regards the maintainability of Letters Patent Appeal. The Court referred to the nine­Judge Bench decision in Naresh Shridhar Mirajkar (supra) and the three­Judge 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 intra­court 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 two­Ju .....

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..... ­ (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 determination by the High Court under the said Article and, hence, no intra­court appeal is entertainable. (d) The tenability of intra­court appeal will depend upon theBench 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 (AIR 1955 SC 233). In the s .....

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..... ender 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 Lokayukta is a quasi­judicial authority and the proceeding being quasi­judicial 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 (2000 (2) ALT 448 (F.B.). 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 intra­court appeal. Th .....

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..... urt 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 .....

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..... he 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 (1978 GLR 1047 (FB) 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, i .....

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..... e 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 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 intra­court 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 intra­court appeal. The Full Bench, analyzing various decisions, opined th .....

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..... 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 .....

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..... adesh 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 intra­court 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 (2006 Cri.LJ 3193). 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 pre .....

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..... he 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 quasijudicial 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 Sin .....

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