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Tuesday, March 28, 2017

(i) whether the allegations of bribery levelled in the alleged Compact Disc (CD) are correct, (ii) whether Change of Land Use (CLU)/Licence was granted in pursuance of these allegations, and (iii) whether by such act, any illegality was committed. The said reference was registered as Complaint No. 773 of 2013 in the office of the Lokayukta, Haryana.= 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, has passed an order in a civil proceeding as the order that was challenged was that of the quasi- judicial 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. 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.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL NO.  4288  OF 2017
              (arising out of S.L.P. (Civil) No. 15362 of 2016)



Ram Kishan Fauji                        ...  Appellant


                                   Versus

State of Haryana and Ors.               ...  Respondents



                               J U D G M E N T



Dipak Misra, J.

      Leave granted.

2.    The Chief Secretary to the Government of Haryana in exercise of  power
under Section 8(1) of the Haryana Lokayukta Act,  2002  (for  brevity,  “the
Act”) made a reference  to  the  Lokayukta,  Haryana  to  enquire  into  the
allegations, namely, (i) whether the allegations of bribery levelled in  the
alleged Compact Disc (CD) are correct, (ii)  whether   Change  of  Land  Use
(CLU)/Licence was granted in  pursuance  of  these  allegations,  and  (iii)
whether by such act, any illegality was committed. The  said  reference  was
registered as Complaint No. 773 of 2013 in  the  office  of  the  Lokayukta,
Haryana.

3.    Acting on the reference made by the Chief  Secretary,  the  office  of
the Lokayukta issued a public notice requesting the  public  in  general  to
send any such material including Video Compact  Disc  (VCD)  connected  with
the subject in issue.  Apart from the  public  notice,  communications  were
sent to various departments  of  the  Government,  television  channels  and
newspapers for furnishing all materials  to  find  out  the  allegations  of
corruption against the persons who have been named in the complaint.

4.    As the facts would unfold, the Lokayukta, Haryana,  issued  notice  to
the appellant in exercise of power under Section 14 of the Act to offer  his
explanation. In pursuance of the said communication, the appellant  filed  a
reply and the Lokayukta granted him time to place on record his evidence  in
the form of 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 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[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
Bureau, Panchkula on 04.12.2014 under Sections 7 and  8  of  the  1988  Act.
Certain other documents were brought on record  before  the  learned  Single
Judge of the High Court and eventually. vide judgment dated 27.02.2015,  the
learned Single Judge referred to various aspects such as the facts that  led
to the complaint before the Lokayukta, the findings of  the  Lokayukta,  the
initial endeavour by the High Court to gather details  of  the  authenticity
of the CD, the contradictory report submitted by the  writ  petitioner  from
private  laboratory,  he  fresh  report  from   Central   Forensic   Science
Laboratory (CFSL) to quell  the  contradiction,  the  law  relating  to  the
admissibility of evidence of electronic record and, thereafter, it  recorded
its conclusion on the issues pertaining  to  the  authenticity  of  the  CD,
credible information for bribery, direction for filing of complaint  by  the
Lokayukta, the report of the Lokayukta, the  imputations  made  against  the
petitioner, prima facie proof, the jurisdiction of the  Lokayukta  to  cause
an inquiry and, ultimately, came to hold as follows:-

“I have undertaken this examination only to conclude all  the  issues  which
were  urged  before  me.   The  observations  as  regards  the  untenability
invoking the provision of Section 9 does not obtain relevance  to  us,  for,
we have already found the report to be seriously  flawed  in  every  respect
both as regards the competence of the Lokayukta to order a  registration  of
a complaint after he found the reference in the negative 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 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  re-
constitute  a  Special  Investigation  Team  comprising  three  senior   IPS
officers who originally do not belong to the State of Haryana.

Liberty is granted to the parties to seek out-of-turn hearing of the  appeal
after the investigation is over.”

10.   Questioning the sustainability of the order  passed  by  the  Division
Bench, Dr. Rajeev Dhawan, learned senior  counsel,  has  raised  a  singular
contention that  the  LPA  preferred  before  the  Division  Bench  was  not
maintainable inasmuch as the learned Single  Judge  had  exercised  criminal
jurisdiction. He has placed reliance on  certain  authorities  to  which  we
shall refer to at the relevant place in the course of our deliberations.

11.   Mr. Sanjay Kumar Visen, learned counsel appearing for  the  respondent
State, resisting the aforesaid  submission,  would  contend  that  the  writ
petition was registered as a civil writ petition for the purpose of  issuing
a writ of certiorari and the exercise of jurisdiction by the High  Court  is
civil  in  nature  and,  therefore,  the  jurisdiction  exercised  is  civil
jurisdiction that invites interference in intra-court appeal.   That  apart,
contends Mr. Visen that the exercise of power of the  learned  Single  Judge
is strictly under Article 226 of the Constitution of India  and,  hence,  an
intra-court appeal deserved to be entertained by the Division Bench.  It  is
further submitted by him that the Lokayukta is  a  quasi-judicial  body  and
when, at its instance, action is taken for inquiry, it has  to  come  within
the ambit and scope of civil jurisdiction  and  not  criminal  jurisdiction.
Learned counsel for the State has 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[2].

12.   First, we intend to advert to the position of the  Lokayukta  or  Upa-
Lokayukta as has been dealt with in Justice  Chandrashekaraiah  (supra).  In
the said case, Radhakrishnan, J. ruled that Lokayukta and Upa-Lokayukta  act
as quasi-judicial 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  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  argument  on  behalf  of  the
State  was  that  Upa-Lokayukta  is  essentially  required  to   investigate
complaints  and  enquire  into  the  grievances  brought  before   it   and,
therefore, he may be exercising  some  quasi-judicial  functions,  but  that
does not make him a  quasi-judicial  authority.   The  said  submission  was
advanced to highlight the proposition that when the Upa-Lokayukta is  not  a
quasi-judicial authority, the opinion of  the  Chief  Justice  of  the  High
Court  of  Karnataka  would  not  have  primacy  in  the   appointment   and
consultation process.  After adverting to the powers and functions  of  Upa-
Lokayukta, it has been held that:-

“105. Section 14 of the Act enables the Upa-Lokayukta to prosecute a  public
servant and if such an action is taken, sanction  to  prosecute  the  public
servant shall be deemed to have been granted by the appropriate authority.”

                                 xxxxx xxxxx

“107. The broad spectrum of functions, powers, duties  and  responsibilities
of the Upa-Lokayukta, as statutorily prescribed, clearly bring out that  not
only does he perform quasi-judicial functions,  as  contrasted  with  purely
administrative or executive functions, but that the  Upa-Lokayukta  is  more
than  an  investigator  or  an  enquiry   officer.   At   the   same   time,
notwithstanding his status, he is not placed on the pedestal of  a  judicial
authority rendering a binding decision. He is placed  somewhere  in  between
an investigator and a judicial authority, having the elements of  both.  For
want of a better expression, the office of  an  Upa-Lokayukta  can  only  be
described as a sui generis quasi-judicial authority.”

“108. ……The final decision rendered by the Upa-Lokayukta, called  a  report,
may not bear the stamp of a judicial decision, 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 Upa-Lokayukta does not determine the rights  of  the
complainant  or  the  person  complained  against.  Consequently,  the  Upa-
Lokayukta is neither a court nor a tribunal. Therefore, in my  opinion,  the
Upa-Lokayukta  can  best  be  described  as  a  sui  generis  quasi-judicial
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[3] 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 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 under any law for such prosecution  and  the  same
shall be deemed to have been granted.

17.   Relying on the aforesaid judgment, it is submitted by Mr.  Visen  that
when the posts held by Lokayukta  and             Upa-Lokayukta  are  quasi-
judicial in nature, their functioning has to be  given  the  same  character
and once they are clothed with such functioning and action taken by them  is
subject to challenge  before  the  High  Court  under  Article  226  of  the
Constitution seeking a writ of certiorari for  quashment  of  the  same,  in
that event, the  adjudication  has  to  be  regarded  as  civil  in  nature.
Elaborating further, he would submit that in the instant case, a civil  writ
was filed challenging the opinion and recommendation of the  Lokayukta  and,
therefore, the jurisdiction sought to be exercised is under Article  226  of
the Constitution of India and resultantly, the order passed by  the  learned
Single Judge is amenable to correction in intra-court appeal.

18.   The maze needs to be immediately cleared.  In  the  instant  case,  we
are really not concerned with the nature of the post held  by  Lokayukta  or
Upa-Lokayukta.  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  Upa-
Lokayukta 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.

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 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]


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 Single Judge, in  the  obtaining
factual matrix has exercised criminal jurisdiction or not.

21.   Presently, we may fruitfully refer to Clauses 15,  17    and  18  that
deal with criminal jurisdiction.   Clause  15  that  provides  for  ordinary
criminal jurisdiction of the High Court reads as under:-

“15.  And We do further ordain that the High Court of Judicature  at  Lahore
shall have ordinary original criminal jurisdiction in respect  of  all  such
persons within the Provinces of Punjab and Delhi as the Chief Court  of  the
Punjab  had  such  criminal  jurisdiction  over   immediately   before   the
publication of these presents.”


22.   Clauses 17 and 18, being pertinent, are extracted below:-
“17.  And We do further ordain that the High Court of Judicature  at  Lahore
shall have extraordinary original criminal  jurisdiction  over  all  persons
residing in places within the jurisdiction  of  any  Court  subject  to  its
superintendence, and shall have authority to try at its discretion any  such
persons brought before it on charges preferred by any  magistrate  or  other
officer specially empowered by the Government in that behalf.


18.   And We do further ordain that there shall be no  appeal  to  the  High
Court of Judicature at Lahore from any sentence or order passed or  made  by
the Courts of original criminal jurisdiction which  may  be  constituted  by
one or more Judges of  the  said  High  Court.   But  it  shall  be  at  the
discretion of any such court to reserve any point or points of law  for  the
opinion of the said High Court.”
                                                       [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 four-Judge Bench,  in  South  Asia
Industries Private Ltd v. S.B. Sarup Singh and others[4],  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 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 inevitable that  an  appeal  shall  lie  from  the
judgment of a single Judge under cl. 10 of the Letters Patent  to  the  High
Court.  It follows that, if the Act had not taken away  the  Letters  Patent
appeal, an appeal shall certainly lie from the judgment of the single  Judge
of the High Court.”
                                                       [underlining is ours]


24.   From the  aforesaid  authority,  two  aspects  are  absolutely  clear.
First, where an appeal is not excluded against  the  judgment  of  the  High
Court of a Single Judge, an appeal would  lie  to  the  Division  Bench  and
second, if  the  appropriate  Legislature  has  expressly  or  by  necessary
implication not taken away a right of appeal, the appeal shall lie from  the
Single Judge under Clause 10 of the Letters Patent to the High Court.

25.   In this context, reference  to  the  Constitution  Bench  judgment  in
Jamshed N. Guzdar v. State of Maharashtra and others[5] would  be  apposite.
In the said case, the controversy arose  pertaining  to  the  constitutional
validity of the Bombay City Civil Court and Bombay  Court  of  Small  Causes
(Enhancement  of   Pecuniary   Jurisdiction   and   Amendment)   Act,   1986
(Maharashtra Act 15 of 1987) (for short “the 1987  Act”),  Maharashtra  High
Court (Hearing of Writ Petitions by Division Bench and Abolition of  Letters
Patent Appeals) Act, 1986 (Maharashtra Act 17 of 1986) (for short “the  1986
Act”) and Madhya Pradesh Uchcha Nyayalaya (Letters Patent  Appeals  Samapti)
Adhiniyam, 1981 (for short ‘the Adhiniyam’) by which State Legislatures  had
abolished the intra-court 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  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, 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 Legislatures to pass law  relating
to  general  jurisdiction  of  the  High  Courts  dealing  with  the   topic
“administration of justice” under Entry 11-A  of  List  III.  Assuming  that
incidentally the 1986 Act and the Adhiniyam touch upon the  Letters  Patent,
the  1986  Act  and   the   Adhiniyam   cannot   be   declared   either   as
unconstitutional or invalid applying doctrine of pith and  substance  having
due regard to the discussion already  made  above  while  dealing  with  the
legislative competence of the State in passing the 1987 Act.”


27. On the aforesaid analysis, the Court set aside the judgment of the  Full
Bench of the High Court of Madhya Pradesh and dismissed the  writ  petitions
filed by others challenging the 1986 Act and the  1987  Act.  Thus,  it  has
been clearly held that the State Legislature has  competence  to  amend  the
Letters Patent.

28.   The purpose of referring to this judgment is  that  till  a  competent
legislature takes away the power of the Letters  Patent,  the  same  can  be
exercised by the High Court.  However, while exercising the power under  the
Letters Patent, it is imperative to see what is the nature  of  jurisdiction
that has actually been provided in the  Letters  Patent.   The  exercise  of
jurisdiction has  to  be  within  the  ambit  and  scope  of  the  authority
enshrined in the provision meant for intra-court appeal.

29.   At this stage, we may refer to some of  the  pronouncements  commended
to us by the learned senior counsel for the appellant.  In  Commissioner  of
Income-Tax, Bombay & another v.  Ishwarlal  Bhagwandas  and  others[6],  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  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  criminal
proceeding and, in that regard, ruled thus:-

“A criminal proceeding on the other hand  is  ordinarily  one  in  which  if
carried to its conclusion it may result in the imposition of sentences  such
as death, imprisonment, fine or forfeiture of  property.  It  also  includes
proceedings in which in the larger interest of the State, orders to  prevent
apprehended breach of the peace, orders to  bind  down  persons  who  are  a
danger to the maintenance of peace and order, or orders aimed at  preventing
vagrancy are contemplated to be passed.”


32.   Explicating the concept further, the Court opined that:-


“The character of the proceeding, in our  judgment,  depends  not  upon  the
nature of the tribunal which is invested with authority to grant relief  but
upon the nature of the right violated and the appropriate relief  which  may
be claimed.”


33.  It further held that a civil proceeding is, therefore, one in  which  a
person seeks to enforce by appropriate relief the  alleged  infringement  of
his civil rights against another person or the  State,  and  which,  if  the
claim is proved, would result in the declaration,  express  or  implied,  of
the  right  claimed  and  relief  such  as   payment   of   debt,   damages,
  compensation, delivery  of  specific  property,  enforcement  of  personal
rights, determination of status, etc.

34.   The aforesaid authority makes a  clear  distinction  between  a  civil
proceeding and a criminal proceeding.  As  far  as  criminal  proceeding  is
concerned, it clearly stipulates that a criminal  proceeding  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[7]   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 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  100-A
of the Code of Civil Procedure, 1908) and provided the conditions laid  down
by clause 15 itself are fulfilled. The conditions prescribed  by  clause  15
in this behalf are: (1) that it must be a judgment pursuant to  Section  108
of the Government of India Act of 1915, and (2) it must not  be  a  judgment
falling within one of the excluded categories set out in clause 15.”

 And again:-

“100. According to the Full Bench even were clause 15 to  apply,  an  appeal
would be barred by the express words of clause 15 because the nature of  the
jurisdiction under Articles 226 and 227 is the same inasmuch as it  consists
of granting the same relief, namely, scrutiny  of  records  and  control  of
subordinate  courts  and  tribunals  and,   therefore,   the   exercise   of
jurisdiction under  these  articles  would  be  covered  by  the  expression
“revisional jurisdiction” and “power of  superintendence”.  We  are  afraid,
the Full Bench  has  misunderstood  the  scope  and  effect  of  the  powers
conferred by these  articles.  These  two  articles  stand  on  an  entirely
different footing. As made abundantly clear in  the  earlier  part  of  this
judgment, their source and origin are different and the  models  upon  which
they are patterned are also different. Under Article  226  the  High  Courts
have power to issue directions, orders and writs to any person or  authority
including any Government. Under Article 227 every High Court  has  power  of
superintendence over all courts and tribunals throughout  the  territory  in
relation to which it exercises jurisdiction. The power  to  issue  writs  is
not the 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[8]  and  Ahmedabad  Mfg.  &  Calico  Ptg.  Co.  Ltd.  v.  Ram  Tahel
Ramnand[9]). 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 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                    intra-court  appeal
against the decision of the learned Single Judge was expressly barred.

37.   In this context, a reference to a two-Judge Bench  decision  in  Ashok
K. Jha and others v. Garden Silk Mills  Limited  and  another[10]  would  be
profitable.  The question  that  arose  for  consideration  was  whether  an
appeal under Clause 15 of the Letters Patent of the  High  Court  of  Bombay
was maintainable from the judgment and order passed by  the  learned  Single
Judge in a special civil application.  The controversy had arisen  from  the
dispute raised before the Labour Court.  The matter  travelled  through  the
Industrial Court in appeal which was challenged before the High Court  under
Articles 226 and 227 of the Constitution of India.  While dealing  with  the
issue of  maintainability,  the  Court  referred  to  Umaji  Keshao  Meshram
(supra), Kishorilal v. Sales Officer, District  Land  Development  Bank[11],
State of Madhya Pradesh and others v. Visan Kumar Shiv  Charan  Lal[12]  and
Sushilabai Laxminarayan Mudliyar and others v. Nihalchand Waghajibhai  Shaha
and others [13] and ultimately held that:-

“35. In Visan Kumar Shiv Charan Lal (supra) this  Court  further  held  that
the determining factor is the real nature of principal order passed  by  the
Single Judge which is appealed against and neither mentioning in the  cause-
title of the application of both the  articles  nor  granting  of  ancillary
order thereupon by the Single Judge would be relevant and in each  case  the
Division Bench must consider the substance of the judgment under  appeal  to
ascertain whether the Single Judge has mainly or principally  exercised  his
jurisdiction under Article 226  or  Article  227  of  the  Constitution.  In
Ramesh Chandra Sankla[14] this Court held:

“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 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[15],  the  issue
arose with regard to the correctness of the decision in  Surya  Dev  Rai  v.
Ram Chander Rai[16] before the  three-Judge  Bench.  The  three-Judge  Bench
referred to Naresh Shridhar Mirajkar v.  State  of  Maharashtra[17]  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  distinction  between  Articles  226  and  227  stood  almost
obliterated. In para  24  of  the  said  judgment  distinction  in  the  two
articles has  been  noted.  In  view  thereof,  observation  that  scope  of
Articles  226  and  227  was  obliterated  was  not   correct   as   rightly
observed[18] by the referring Bench in para 32  quoted  above.  We  make  it
clear that though despite the curtailment of revisional  jurisdiction  under
Section 115 CPC by Act 46 of 1999, jurisdiction  of  the  High  Court  under
Article 227 remains unaffected, it  has  been  wrongly  assumed  in  certain
quarters that the said jurisdiction has been expanded. Scope of Article  227
has  been  explained  in  several  decisions  including  Waryam   Singh   v.
Amarnath[19], Ouseph Mathai v. M. Abdul Khadir[20], Shalini Shyam Shetty  v.
Rajendra  Shankar  Patil[21]   and  Sameer  Suresh  Gupta  v.  Rahul   Kumar
Agarwal[22].”

40.   The ultimate conclusion arrived at in the said case is that:-
“27.  … we are of the view that judicial orders  of  civil  courts  are  not
amenable to a  writ  of  certiorari  under  Article  226.  We  are  also  in
agreement with the view19 of the referring Bench that  a  writ  of  mandamus
does not lie against a private  person  not  discharging  any  public  duty.
Scope of Article 227 is different from Article 226.”

41.   The Court clarified the position by adding that:-
“28. We may also deal with the submission made on behalf of  the  respondent
that the view in Surya Dev Rai (supra) stands approved by larger Benches  in
Shail[23], Mahendra Saree Emporium (2)[24]  and  Salem  Advocate  Bar  Assn.
(2)[25] 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  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[26] 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  nine-Judge  Bench  decision  in  Naresh
Shridhar Mirajkar (supra) and  the  three-Judge  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 intra-court 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  two-Judge  Bench
proceeded to answer the same. In that context, the  Court  referred  to  the
authorities in Lokmat Newspapers (P) Ltd. v.  Shankarprasad[27],  Kishorilal
(supra), Ashok K. Jha (supra) and Ramesh Chandra Sankla (supra)  and  opined
that maintainability of a  letters  patent  appeal  would  depend  upon  the
pleadings in the writ petition,  the  nature  and  character  of  the  order
passed by the learned Single Judge, the type  of  directions  issued  regard
being had to the jurisdictional perspectives in the constitutional  context.
It further observed that barring the civil court, from which order  as  held
by the three-Judge Bench in Radhey Shyam (supra) that a  writ  petition  can
lie only under Article  227  of  the  Constitution,  orders  from  tribunals
cannot always be regarded for all purposes to be under Article  227  of  the
Constitution.  Whether  the  learned  Single   Judge   has   exercised   the
jurisdiction under Article 226 or under Article 227 or  both,  would  depend
upon various aspects.  There can be orders  passed  by  the  learned  Single
Judge which can be construed as an  order  under  both  the  articles  in  a
composite manner, for they can co-exist,  coincide  and  imbricate.  It  was
reiterated that it would depend upon the nature, contour  and  character  of
the order and it will be the obligation of the Division  Bench  hearing  the
letters patent appeal to discern and  decide  whether  the  order  has  been
passed by the  learned  Single  Judge  in  exercise  of  jurisdiction  under
Article 226 or 227 of the Constitution or both. The two-Judge 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 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 Judge  to  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  Letters  Patent  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  in  the  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 intra-court appeal is entertainable.

(d)  The tenability  of  intra-court  appeal  will  depend  upon  the  Bench
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[28].   In  the  said  case,  the  Court  has
referred to the earlier decision in T.C. Basappa v. T. Nagappa[29] and  held
that:-
“… ‘Certiorari’ will be issued for correcting  errors  of  jurisdiction,  as
when an inferior Court or Tribunal acts without jurisdiction  or  in  excess
of it, or fails to exercise it. (2) ‘Certiorari’ will also  be  issued  when
the Court or Tribunal acts  illegally  in  the  exercise  of  its  undoubted
jurisdiction, as when it  decides  without  giving  an  opportunity  to  the
parties to be heard, or violates the principles of natural justice. (3)  The
Court issuing a writ of certiorari acts in exercise  of  a  supervisory  and
not appellate jurisdiction. One consequence of this is that the  Court  will
not review findings of fact reached by the inferior Court or Tribunal,  even
if they be erroneous. This is on  the  principle  that  a  Court  which  has
jurisdiction over a subject-matter has jurisdiction to decide wrong as  well
as right, and when the Legislature does not choose  to  confer  a  right  of
appeal against that decision, it would be defeating its purpose and  policy,
if a  superior  Court  were  to  re-hear  the  case  on  the  evidence,  and
substitute its own findings in  certiorari.  These  propositions  -are  well
settled and are not in dispute.”


48.   It is propounded by Mr. Visen that a writ of certiorari can be  issued
on many a ground and when the learned Single Judge has issued a writ of  the
present nature in quashing the order of the  Upa-Lokayukta,  it  has  to  be
treated as 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, 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 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[30].  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 intra-court  appeal.   The  Full  Bench  posed  the  following
question:-
“Whether appeal under Clause 15 of the Letters  Patent  of  the  Court  lies
against the judgment in such a case. In other words,  whether  a  proceeding
for quashing of investigation in a criminal case  under  Article 226 of  the
Constitution of India is a civil proceeding and the judgment as above  is  a
judgment in a civil proceeding in exercise of the original  jurisdiction  of
the Court for the  purposes  of  appeal  under  Clause  15  of  the  Letters
Patent."


51.   Dwelling upon the said issue, the Court referred to the  authority  in
State of Haryana and others v. Bhajanlal and others[31]  wherein  the  Court
had categorised certain aspects of the case as illustrations  wherein  power
under Article 226 or the inherent  power  under  Section  482  CrPC  can  be
exercised. Be it noted, the Court gave a note of caution to the effect  that
the power of  quashing  a  criminal  proceeding  should  be  exercised  very
sparingly and with circumspection and that too in the rarest of  rare  cases
and further, the Court will not be justified in embarking  upon  an  enquiry
as to the reliability or genuineness or otherwise of  the  allegations  made
in the FIR or the complaint and that the extraordinary  or  inherent  powers
do not confer an arbitrary jurisdiction on the Court  to  act  according  to
its whim or caprice.  The Full Bench, after referring to the same,  adverted
to the authorities in Rashmi Kumar v. Mahesh  Kumar  Bhada[32]   and  Rajesh
Bajaj v. State NCT of Delhi[33], 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  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  impugned  in
the present appeal does not warrant any interference.
53.    Dr.  Dhawan,  learned  senior  counsel,  has  commended  us  to   two
authorities – one by the Division Bench of Gujarat High Court and the  other
by the Full Bench of High Court of Delhi. In Sanjeev Rajendrabhai  Bhatt  v.
State  of  Gujarat  &  others[34],  two  appeals  being   Special   Criminal
Application Nos. 6 and 24 of 1998 arose out of a common order passed by  the
learned Single Judge. The learned  Single  Judge,  by  the  impugned  order,
upheld the preliminary objection raised on behalf of the State of  Rajasthan
that the High Court of  Gujarat  had  no  territorial  jurisdiction  in  the
matter as the proceedings were initially conducted in  the  Court  of  Chief
Judicial Magistrate, Pali situated in Rajasthan. The maintainability of  the
objections on the  ground  of  want  of  territorial  jurisdiction  was  the
subject matter of appeal before the Division Bench.   The  Court  posed  two
questions and the primary one pertained to the  maintainability  of  Letters
Patent Appeal.  For the aforesaid purpose, the appellate  Bench  thought  it
appropriate to pose the following two questions:-
“First, 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.  Secondly, whether the order passed by  the
learned single Judge can be said to have been  passed  in  the  exercise  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[35] and A.R. Antulay v. R.S.  Nayak  and  another[36]  (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[37]   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.  Narottamdas   Bechardas   &
others[38] 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, 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 etc.  as  observed  by  the  Supreme
Court in Narayana Row.


81. From the totality of facts and circumstances, we have no  hesitation  in
holding mat 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
proceeding' within the meaning  of  Clause  15  of  the  Letters  Patent.  A
proceeding seeking to  avoid  the  consequences  of  a  criminal  proceeding
initiated under the Code of  Criminal  Procedure  will  continue  to  remain
'criminal proceeding' covered by the bracketed portion of Clause 15  of  the
Letters Patent.”


56.   Being of this view, the Division Bench ruled that as Clause 15 of  the
Letters Patent expressly 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[39] 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 intra-court 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 intra-
court appeal.  The Full Bench, analyzing various decisions, opined thus:-


“… proceedings under Article 226 of the Constitution  would  be  treated  as
original civil proceedings only when it concerns civil rights.  A  fortiori,
if it concerns a criminal matter, then such proceedings  would  be  original
criminal proceedings.  Letters  Patent  would  lie  when  the  Single  Judge
decides the writ petition in proceedings concerning  civil  rights.  On  the
other hand, if these proceedings are concerned with rights in  criminal  law
domain, then it can be  said  that  the  Single  Judge  was  exercising  his
‘criminal jurisdiction’ while dealing  with  such  a  petition  filed  under
Article 226 of the Constitution.”





59.   After so stating, the Full Bench referred to  the  Constitution  Bench
decision in Ishwarlal Bhagwandas (supra) and distinguished  the  Full  Bench
decision of the Andhra High Court in Gangaram  Kandaram  (supra)  and  noted
the decision of  the  Division  Bench  of  Gujarat  High  Court  in  Sanjeev
Rajendrabhai Bhat (supra) and came to hold as follows:-


“32. The test, thus, is whether criminal proceedings are pending or not  and
the petition under Article 226 of the Constitution is  preferred  concerning
those criminal proceedings which could result in  conviction  and  order  of
sentence.


33. When viewed from this angle,  it  is  clear  that  if  the  FIR  is  not
quashed, it may lead to filing  of  Challan  by  the  investigating  agency,
framing of charge and can result in conviction of order  of  sentence.  Writ
of this  nature  filed  under  Article  226  of  the  Constitution.  Seeking
quashing of 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[40] 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 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 10 or Clause 15 of the  Letters  Patent,
as the case may be, no appeal will lie.  The High Court of  Andhra  Pradesh,
however, has held that when the power is exercised under Article 226 of  the
Constitution for quashing of a criminal proceeding, there is no exercise  of
criminal jurisdiction. It has distinguished the proceeding for  quashing  of
FIR under Section 482 CrPC and, in that context, has opined that  from  such
an order, no appeal would lie.  On the contrary, the High Courts of  Gujarat
and Delhi, on the basis of the law laid down  by  this  Court  in  Ishwarlal
Bhagwandas (supra),  have  laid  emphasis  on  the  seed  of  initiation  of
criminal proceeding, the consequence of a criminal proceeding and  also  the
nature of relief sought before the Single Judge under  Article  226  of  the
Constitution. The conception of ‘criminal jurisdiction’ as  used  in  Clause
10 of the Letters Patent is not to be construed in  the  narrow  sense.   It
encompasses in its gamut the inception and the consequence. It is the  field
in respect of  which  the  jurisdiction  is  exercised,  is  relevant.   The
contention that solely  because  a  writ  petition  is  filed  to  quash  an
investigation, it would have room for intra-court appeal and if  a  petition
is filed under inherent jurisdiction under Section 482 CrPC, there would  be
no space for an intra-court appeal, would create an anomalous,  unacceptable
and inconceivable situation.  The provision contained in the Letters  Patent
does not allow or permit such an interpretation.  When we  are  required  to
consider a bar 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[41].  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[42] and  Hema  Mishra  v.  State  of  Uttar  Pradesh  and
others[43].  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 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[44].  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  prerogative  writs  possessed  by  the
Chartered High Courts prior to the  commencement  of  the  Constitution  has
been made wider and more extensive and  conferred  upon  every  High  Court.
The nature of the exercise of the power under Article 226, however,  remains
the same as in the case of the power of issuing prerogative writs  possessed
by the Chartered High Courts.  A  series  of  decision  of  this  Court  has
firmly  established  that  proceeding  under  Article  226  is  an  original
proceeding and when it concerns  civil  rights,  it  is  an  original  civil
proceeding.”


64.   On the aforesaid basis, the Division Bench ruled that in a  proceeding
under Article 226 consisting of civil rights, the proceedings are  civil  in
nature falling within the ambit of Clause 10 of the Letters Patent.  In  the
said case, the detention was under the COFEPOSA  Act.   The  Court  observed
that the said  detention  is  purely  preventive  without  any  trial  in  a
criminal court and the challenge to such detention is  for  the  enforcement
of a fundamental civil right and, therefore, a writ under  Article  226  for
issue of Habeas Corpus in such  like  matters  cannot  be  considered  as  a
proceeding under criminal jurisdiction even  though  the  writ  petition  is
identified as a criminal writ  petition  under  the  High  Court  Rules  and
others.   The  said  decision  has  to  be   carefully   appreciated.    The
nomenclature of a writ  petition  is  not  the  governing  factor.  What  is
relevant is what is eventually being sought to be  enforced.   The  Division
Bench observed  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 226 of the Constitution, has passed an  order  in
a civil proceeding as the order that was challenged was that of  the  quasi-
judicial  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 Single Judge.  There shall be no order as to costs.




                                ..........................................J.
                                    (Dipak Misra)



                                ..........................................J.
                                    (A.M. Khanwilkar)



                                ..........................................J.
                                    (Mohan M. Shantanagoudar)

New Delhi;
March 21, 2017.
-----------------------
[1]

      [2] (2014) 2 SCC 1
[3]
      [4]  (2013) 3 SCC 117
[5]
      [6]  AIR 1965 SC 1595
[7]
      [8] (1965) 2 SCR 756
[9]
      [10] (2005) 2 SCC 591
[11]
      [12] (1966) 1 SCR 190
[13]
      [14] 1986 (Supp.) SCC 401
[15]
      [16] AIR 1968 SC 1481
[17]
      [18] (1973) 1 SCR 185
[19]
      [20] (2009) 10 SCC 584
[21]
      [22] (2006) 7 SCC 496
[23]
      [24] (2008) 15 SCC 233
[25]
      [26] 1993 Supp (1) SCC 11
[27]
      [28] (2008) 14 SCC 58
[29]
      [30] (2015) 5 SCC 423
[31]
      [32] (2003) 6 SCC 675
[33]
      [34] AIR 1967 SC 1
[35]
      [36] (2009) 5 SCC 616
[37]
      [38] AIR 1954 SC 215
[39]
      [40] (2002) 1 SCC 319
[41]
      [42] (2010) 8 SCC 329
[43]
      [44] (2013) 9 SCC 374
[45]
      [46] (2004) 4 SCC 785
[47]
      [48] (2005) 1 SCC 481
[49]
      [50] (2005) 6 SCC 344
[51]
      [52] (2015) 9 SCC 1
[53]
      [54] (1999) 6 SCC 275
[55]
      [56] AIR 1955 SC 233
[57]
      [58] AIR 1954 SC 440
[59]
      [60] 2000 (2) ALT 448 (F.B.)
[61]
      [62] AIR 1992 SC 604
[63]
      [64] 1997 (2) SCC 397, 1997 SCC (Crl.) 415
[65]
      [66] 1999 (3) SCC 259, 1999 SCC (Crl.) 401
[67]
      [68] (2000) 1 Gujarat Law Reports 206
[69]
      [70] 1998 (4) SCC 409
[71]
      [72] AIR 1988 SC 1531
[73]
      [74] 1995 (2) GLH 260
[75]
      [76] 1978 GLR 1047  (FB)
[77]
      [78] 2011 (125) DRJ 241 (FB)
[79]
      [80] 208 (2014) DLT 468 (DB)
[81]
      [82]  (1994) 3 SCC 569
[83]
      [84]  (2009) 4 SCC 437
[85]
      [86]  (2014) 4 SCC 453
[87]
      [88]  2006 Cri.LJ 3193


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