LAW FOR ALL

Thursday, July 9, 2015

(i) In what context the phrase ‘original jurisdiction’ appearing in Clause 15 of the Letters Patens should be construed, that is, by taking into consideration the plain meaning of the same as the Court’s power to hear and decide the matter before any other court and review the same; or should it be construed in the context with the power of the Court to issue a writ under Article 226 of the Constitution of India, which is always original. (ii) Assuming the words “to issue to any person or authority” as contained in Article 226 of the Constitution are interpreted so as to include the tribunal or the Court, then in such circumstances, would it be the correct proposition of law to say that appellate tribunal is not amenable to a writ of certiorari and the only remedy available to the litigant to challenge the order passed by an appellate tribunal is under Article 227 of the Constitution and, ancillary one, when a petition assails an order of the tribunal, be it a tribunal of first instance or an appellate tribunal, should it be necessarily treated as a petition under Article 226 of the Constitution of India in every case or it would depend upon facts of each case, more particularly the grounds of challenge and the nature of order passed. (iii) Whether in a petition for issue of a writ of Certiorari under Article 227 of the Constitution of India, the tribunal/Court whose order is impugned in a petition must be a party to the petition so that the writ sought from the Court can be issued against the tribunal/Court, but if the petition is for the relief under Article 227 only, then the tribunal/Court whose order is under assail need not be a party-respondent on the reasoning that by entertaining a petition under Article 227 of the Constitution, the High Court exercises its power of superintendence which is analogous to the revisional jurisdiction. - (A) Whether a letters patent appeal would lie against the order passed by the learned Single Judge that has travelled to him from the other tribunals or authorities, would depend upon many a facet. The Court fee payable on a petition to make it under Article 226 or Article 227 or both, would depend upon the rules framed by the High Court. (B) The order passed by the civil court is only amenable to be scrutinized by the High Court in exercise of jurisdiction under Article 227 of the Constitution of India which is different from Article 226 of the Constitution and as per the pronouncement in Radhey Shyam (supra), no writ can be issued against the order passed by the civil court and, therefore, no letters patent appeal would be maintainable. (C) The writ petition can be held to be not maintainable if a tribunal or authority that is required to defend the impugned order has not been arrayed as a party, as it is a necessary party. (D) Tribunal being or not being party in a writ petition is not determinative of the maintainability of a letters patent appeal. 37. Having recorded our conclusions in seriatim, we think it appropriate that the matters should be remanded to the High Court to be heard by the Division Bench in accordance with the principles laid down in this judgment and accordingly we so direct. Resultantly, with the modifications in the order of the High Court, the appeals stand disposed of. There shall be no order as to costs.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2374 OF 2015
[Arising out of SLP(C) No. 10203 of 2014]

Sh Jogendrasinhji Vijaysinghji ... Appellant

Versus

State of Gujarat & Ors. ... Respondents

WITH

C.A. NOS. 2375-76 OF 2015 (@ SLP(C) NO.11756-57/2014)
C.A. NO. 2717 OF 2015 (@ SLP(C) NO. 12027/2014)
C.A. NOS. 2669-2716 OF 2015 (@ SLP(C) NO.14264-14311/2014)
C.A. NOS. 2378-2385 OF 2015 (@ SLP(C) NO.17496-17503/2014)
C.A. NO. 2386 OF 2015 (@ SLP(C) NO. 18398/2014)
C.A. NOS. 2387-2388 OF 2015 (@ SLP(C) NO. 19567-68/2014)
C.A. NO. 2665 OF 2015 (@ SLP(C) NO. 20828/2014)
C.A. NOS. 2389-2390 OF 2015 (@ SLP(C) NO. 20975-76/2014)
C.A. NOS. 2391-2392 OF 2015 (@ SLP(C) NO. 30033-34/2014)
C.A. NOS. 2662-2663 OF 2015 (@ SLP(C) NO. 34183-84/2014)
C.A. NOS. 2141-2144 OF 2015 (@ SLP(C) NOS. 6504-6507) (CC NO 858-861/2015)
C.A. NO. 2664 OF 2015 (@ SLP(C) NO. 20809/2014)

J U D G M E N T

Dipak Misra, J.

In this batch of appeals, by special leave, the appellants call in
question the legal substantiality of the judgment and order dated
26.12.2013 passed by the Special Bench of the High Court of Gujarat in a
bunch of Letters Patent Appeals preferred under Clause 15 of the Letters
Patent.

2. As the factual matrix would unveil, the Division Bench that referred
the matter to a larger Bench, noticed conflict in Revaben Wd/o. Ambalal
Motibhai and others v. Vinubhai Purshottambhai Patel and others[1] and
Dilavarsinhsinh Khodubha Jadeja v. State of Gujarat and others[2] and at
that juncture framed two questions. The Special Bench adverted to the
facts necessitating the reference in detail and took note of the
preliminary objections of the learned counsel for the State as regards the
maintainability of the Letters Patent Appeal on many a score and thereafter
thought it appropriate to frame the questions afresh and accordingly it
formulated questions.

3. At the outset, we may state that though eight questions have been
drawn up by the special Bench yet we are disposed to think that they can
really be put into three basic compartments, namely:

(i) In what context the phrase ‘original jurisdiction’ appearing in
Clause 15 of the Letters Patens should be construed, that is, by taking
into consideration the plain meaning of the same as the Court’s power to
hear and decide the matter before any other court and review the same; or
should it be construed in the context with the power of the Court to issue
a writ under Article 226 of the Constitution of India, which is always
original.

(ii) Assuming the words “to issue to any person or authority” as contained
in Article 226 of the Constitution are interpreted so as to include the
tribunal or the Court, then in such circumstances, would it be the correct
proposition of law to say that appellate tribunal is not amenable to a writ
of certiorari and the only remedy available to the litigant to challenge
the order passed by an appellate tribunal is under Article 227 of the
Constitution and, ancillary one, when a petition assails an order of the
tribunal, be it a tribunal of first instance or an appellate tribunal,
should it be necessarily treated as a petition under Article 226 of the
Constitution of India in every case or it would depend upon facts of each
case, more particularly the grounds of challenge and the nature of order
passed.

(iii) Whether in a petition for issue of a writ of Certiorari under Article
227 of the Constitution of India, the tribunal/Court whose order is
impugned in a petition must be a party to the petition so that the writ
sought from the Court can be issued against the tribunal/Court, but if the
petition is for the relief under Article 227 only, then the tribunal/Court
whose order is under assail need not be a party-respondent on the reasoning
that by entertaining a petition under Article 227 of the Constitution, the
High Court exercises its power of superintendence which is analogous to the
revisional jurisdiction.

4. The special bench as is evincible from the judgment impugned, has
delved into the questions framed by it, if we permit ourselves to say so,
at great length and recorded its conclusions in seriatum. It is necessary
to reproduce the relevant conclusions, which are as follows:-

“(iii) When a writ is issued under Article 226 of the Constitution, it is
issued in exercise of its original jurisdiction whether against the
Tribunal or inferior Court or administrative authority.

(iv) The power exercised under Article 226 of the Constitution is in
exercise of original jurisdiction and not supervisory jurisdiction.

xxx xxx xxx

(vii) A writ of certiorari lies in appropriate cases against the order of
Tribunal or Court subordinate to the High Court where such a Court, or
Tribunal acts not only as an authority of first instance but even if such a
Court or Tribunal acts as an appellate or revisional authority provided a
case for a writ of certiorari is made out to the satisfaction of the Court
concerned. Thus, if an appellate or revisional order of the Court or
Tribunal, subordinate to a High Court, suffers from a patent error of law
or jurisdiction, the same could be challenged before the High Court with
the aid of Article 226 of the Constitution and it could not be said that
such an appellate or revisional order of the Court or Tribunal could be
challenged with the aid of Article 227 alone.

xxx xxx xxx

(ix) The term “original jurisdiction” as contained in Clause 15 of the
Letters Patent should be understood in context with the power of the High
Court to issue a high prerogative writ like a writ of certiorari under
Article 226 of the Constitution of India. It is that original power to
issue a writ under Article 226 of the Constitution of India which makes the
proceedings original and the exercise of such power will always be original
jurisdiction.

(x) If the Special Civil Application is described as one not only under
Article 226 of the Constitution, but also under Article 227 of the
Constitution of India and the Court or the Tribunal whose order is sought
to be quashed, is not made a party, the application is not maintainable as
one for the relief of certiorari in the absence of the concerned Tribunal
or Court as party, but the same may be treated as one under Article 227 of
the Constitution of India. If the Court or Tribunal is not impleaded as a
party respondent in the main petition, then by merely impleading such court
or tribunal for the first time in the Letters Patent Appeal will not change
the nature and character of the proceedings before the learned Single
Judge. By merely impleading such a Court or Tribunal for the first time in
the LPA, the appeal could not be said to be maintainable, if the
proceedings before the learned Single Judge remained in the nature of
supervisory proceedings under Article 227 of the Constitution.

(xi) If the learned Single Judge, in exercise of a purported power under
Article 227 of the Constitution sets aside the order of Tribunal or Court
below and at the same time, the essential conditions for issue of writ of
certiorari are absent, no appeal will be maintainable against such order in
view of the specific bar created under Clause 15 of the Letters Patent
itself and such an order can be challenged only by way of a Special Leave
Petition before the Supreme Court.

To put it very explicitly, take a case where a petition is only under
Article 227 of the Constitution of India, invoking superintending powers of
the High Court and not under Article 226 of the Constitution of India.
After examining the matter, if the court finds substance in the petition
and sets aside the order of an authority, court or a tribunal, then against
such an order, an LPA would not lie on the argument that since the court
has set aside the order it has decided the matter on merits having found
substance in the same.

To put it in other words, once a petition is under Article 227 of the
Constitution of India, and while entertaining such a petition under Article
227 of the Constitution of India, if the court allows a petition by setting
aside the order impugned, then against such an order no LPA would lie.

xii) If a learned Single Judge, in exercise of a purported power under
Article 227 of the Constitution modifies the order of Tribunal/Authority or
Court below and thereby partly allows a petition to a certain extent, then
in such circumstances, it could not be said that the Court exercised its
certiorari jurisdiction and no appeal will be maintainable against such
order in view of the specific bar created under Clause 15 of the Letters
Patent itself.

However, if a learned Single Judge, in purported exercise of power
under Article 226 of the Constitution of India, issues a writ of
certiorari, although the same is not maintainable, an appeal under Clause
15 of the Letters Patent would nevertheless be maintainable against such
order.

To put it in other words, take a case where a party on his own
invokes supervisory jurisdiction under Article 227 of the Constitution of
India, and in such a petition, the Court issues a writ of certiorari, then
against such an order an LPA would be maintainable.

To put it explicitly clear, take a case where in a petition neither
there is a prayer for issue of a writ of certiorari nor the
Tribunal/Authority or Court whose order is impugned is impleaded as a party
respondent, and despite such being the position, if the Court proceeds to
issue a writ of certiorari, then against such an order an LPA would be
maintainable.

(xiii) A combined application under both Articles 226 and 227 of the
Constitution of India can be entertainable only when the court fees payable
for invoking both the provisions have been paid in aggregate. If court
fees payable for invoking only one of the Articles 226 and 227 have been
affixed, the Court before dismissing the application on that ground may
give option to the petitioner to choose only one of such provisions, if he
does not pay the balance amount of court fees and the application should be
treated accordingly. It is, however, for the Court to decide whether the
facts of the case justify invocation of original jurisdiction or it is a
fit case for exercising supervisory jurisdiction.

xxx xxx xxx

(xv) When a remedy for filing the Revision under Section 115 of the Civil
Procedure Code has been expressly barred, then in such a case, a petition
under Article 227 of the Constitution of India would lie and not a writ
petition under Article 226 of the Constitution of India. When the
Parliament has thought fit to restrict the powers under Section 115 of the
Code with a definite object, then, under such circumstances an order which
is not revisable under Section 115 of the Code of Civil Procedure cannot be
challenged by way of filing a Writ Petition under Article 226 of the
Constitution invoking extraordinary jurisdiction of the High Court and that
too an interlocutory order passed by the Civil Court in a Regular Suit
proceedings.”

5. At this juncture, we are obligated to state that the conclusions have
been recorded by the High Court to cover all kinds of possibilities, but we
are of the considered opinion that it may not always be possible to do so
and hence, advertence in detail to the said conclusions is neither
necessitous nor warranted.
6. Having said that, presently we shall proceed to deal with the first
question we have stated hereinbefore. In this regard, reference to the
authority in T.C. Basappa v. T. Nagappa and Another[3] would be fruitful.
The controversy before the Constitution Bench, apart from other aspects,
also pertained to scope of jurisdiction under Article 226 of the
Constitution. Dealing with the said facet, the larger Bench opined that:-
“7. One of the fundamental principles in regard to the issuing of a writ of
‘certiorari’, is, that the writ can be availed of only to remove or
adjudicate on the validity of judicial acts. The expression “judicial acts”
includes the exercise of quasi-judicial functions by administrative bodies
or other authorities or persons obliged to exercise such functions and is
used in contrast with what are purely ministerial acts. Atkin, L.J. thus
summed up the law on this point in Rex v. Electricity Commissioners[4]:

“Whenever anybody or persons having legal authority to determine questions
affecting the rights of subjects and having the duty to act judicially act
in excess of their legal authority, they are subject to the controlling
jurisdiction of the King's Bench Division exercised in these writs.”

The second essential feature of a writ of ‘certiorari’ is that the control
which is exercised through it over judicial or quasi-judicial tribunals or
bodies is not in an appellate but supervisory capacity. In granting a writ
of certiorari the superior court does not exercise the powers of an
appellate tribunal. It does not review or reweigh the evidence upon which
the determination of the inferior tribunal purports to be based. It
demolishes the order which it considers to be without jurisdiction or
palpably erroneous but does not substitute its own views for those of the
inferior tribunal. The offending order or proceeding so to say is put out
of the way as one which should not be used to the detriment of any person,
vide per Lord Cairns in – ‘Walsall’s Overseers v. L. & N. W.Rly. Co[5].

8. The supervision of the superior court exercised through writs of
‘certiorari’ goes on two points, as has been expressed by Lord Sumner in
King v. Nat Bell Liquors Limited[6]. One is the area of inferior
jurisdiction and the qualifications and conditions of its exercise; the
other is the observance of law in the course of its exercise. These two
heads normally cover all the grounds on which a writ of ‘certiorari’ could
be demanded. In fact there is little difficulty in the enunciation of the
principles; the difficulty really arises in applying the principles to the
facts of a particular case.

9. ‘Certiorari’ may lie and is generally granted when a court has acted
without or in excess of its jurisdiction. The want of jurisdiction may
arise from the nature of the subject-matter of the proceeding or from the
absence of some preliminary proceeding or the court itself may not be
legally constituted or suffer from certain disability by reason of
extraneous circumstances, vide ‘Halsbury, 2nd edition, Vol. IX, page 880.
When the jurisdiction of the court depends upon the existence of some
collateral fact, it is well settled that the court cannot by a wrong
decision of the fact give it jurisdiction which it would not otherwise
possess, vide Bunbury v. Fuller[7] & R. v. Income Tax Special Purposes
Commissioners’[8]

xxx xxx xxx

11. In dealing with the powers of the High Court under Article 226 of the
Constitution, this Court has expressed itself in almost similar terms, vide
‘Veerappa Pillai v. Raman and Raman Ltd.[9] and said:

“Such writs as are referred to in Article 226 are obviously intended to
enable the High Court to issue them in grave cases where the subordinate
tribunals or bodies or officers act wholly without jurisdiction, or in
excess of it, or in violation of the principles of natural justice, or
refuse to exercise a jurisdiction vested in them, or there is an error
apparent on the face of the record, and such act, omission, error or excess
has resulted in manifest injustice. However extensive the jurisdiction may
be, it seems to us that it is not so wide or large as to enable the High
Court to convert itself into a court of appeal and examine for itself the
correctness of the decision impugned and decide what is the proper view to
be taken or the order to be made.”

These passages indicate with sufficient fullness the general principles
that govern the exercise of jurisdiction in the matter of granting writs of
‘certiorari’ under Article 226 of the Constitution.”

7. In Hari Vishnu Kamath v. Ahmad Ishaque and Ors.[10], a seven- Judge
Bench, while dealing with the scope of proceeding under Article 226 of the
Constitution, observed that there can be no dispute that the orders of the
Election Tribunals are subject to the supervisory jurisdiction of the High
Courts under Article 226 and a writ of certiorari under that Article will
be competent against decisions of the Election Tribunals also. The Court
referred to the decision in T.C. Basappa (supra) and other authorities and
ruled thus:-

“We are also of opinion that the Election Tribunals are subject to the
superintendence of the High Courts under Article 227 of the Constitution,
and that superintendence is both judicial and administrative. That was held
by this Court in Waryam Singh v. Amarnath[11], where it was observed that
in this respect Article 227 went further than Section 224 of the Government
of India Act, 1935, under which the superintendence was purely
administrative, and that it restored the position under Section 107 of the
Government of India Act, 1915. It may also be noted that while in a
‘certiorari’ under Article 226 the High Court can only annul the decision
of the Tribunal, it can, under Article 227, do that, and also issue further
directions in the matter. We must accordingly hold that the application of
the appellant for a writ of ‘certiorari’ and for other reliefs was
maintainable under Articles 226 and 227 of the Constitution.”

In the said case, the court directed as follows:-
“Under the circumstances, the proper order to pass is to quash the decision
of the Tribunal and remove it out of the way by ‘certiorari’ under Article
225,and to set aside the election of the first respondent in exercise of
the powers conferred by Article 227.”

8. In Nagender Nath Bora v. The Commissioner of Hills Division and
Appeals, Assam and others[12], while dealing with the scope of Articles 226
and 227 of the Constitution, the Constitution Bench referred to the
authority in Waryam Singh (supra) and held that:-
“It is, thus, clear that the powers of judicial interference under Article
227 of the Constitution with orders of judicial or quasi-judicial nature,
are not greater than the powers under Article 226 of the Constitution.
Under Article 226, the power of interference may extend to quashing an
impugned order on the ground of a mistake apparent on the face of the
record. But under Article, 227 of the Constitution, the power of
interference is limited to seeing that the tribunal functions within the
limits of its authority. Hence, interference by the High Court, in these
cases, either under Article 226 or 227 of the Constitution, was not
justified.”

9. In this context, we may usefully refer to another Constitution Bench
decision in State of Uttar Pradesh and others v. Dr. Vijay Anand
Maharaj[13], wherein it has been ruled:-
“9. Article 226 confers a power on a High Court to issue the writs, orders,
or directions mentioned therein for the enforcement of any of the rights
conferred by Part III or for any other purpose. This is neither an
appellate nor a revisional jurisdiction of the High Court. Though the power
is not confined to the prerogative writs issued by the English Courts, it
is modelled on the said writs mainly to enable the High Courts to keep the
subordinate tribunals within bounds.”

10. After so stating, the larger Bench referred to the decision in Hamid
Hassan v. Banwarilal Roy[14] wherein the Privy Council had observed that
the original civil jurisdiction which the Supreme Court of Calcutta had
possessed over certain classes of persons outside the territorial limits of
that jurisdiction was a matter of original jurisdiction. Thereafter, the
Court referred to certain High Court decisions and opined:-
“.... It is, therefore, clear from the nature of the power conferred under
Article 226 of the Constitution and the decisions on the subject that the
High Court in exercise of its power under Article 226 of the Constitution
exercises original jurisdiction, though the said jurisdiction shall not be
confused with the ordinary civil jurisdiction of the High Court. This
jurisdiction, though original in character as contrasted with its appellate
and revisional jurisdictions, is exercisable throughout the territories in
relation to which it exercises jurisdiction and may, for convenience, be
described as extraordinary original jurisdiction. If that be so, it cannot
be contended that a petition under Article 226 of the Constitution is a
continuation of the proceedings under the Act.”

11. In this context, reference to the nine-Judge Bench decision in Naresh
Shridhar Mirajkar v. State of Maharashtra and another[15] is absolutely
imperative. In the said case, the Court was dealing with the lis whether a
judicial order passed by the High Court could violate any fundamental
right. The majority, speaking through Gajendragadkar, C.J., commenting on
the order of the High Court expressed:-
“38. ..... It is singularly inappropriate to assume that a judicial
decision pronounced by a Judge of competent jurisdiction in or in relation
to a matter brought before him for adjudication can affect the fundamental
rights of the citizens under Article 19(1). What the judicial decision
purports to do is to decide the controversy between the parties brought
before the court and nothing more. If this basic and essential aspect of
the judicial process is borne in mind, it would be plain that the judicial
verdict pronounced by court in or in relation to a matter brought before it
for its decision cannot be said to affect the fundamental rights of
citizens under Article 19(1).”

After so stating, the learned Chief Justice observed thus:-
“39. ..... Just as an order passed by the court on the merits of the
dispute before it can be challenged only in appeal and cannot be said to
contravene the fundamental rights of the litigants before the Court, so
could the impugned order be challenged in appeal under Article 136 of the
Constitution, but it cannot be said to affect the fundamental rights of the
petitioners. The character of the judicial order remains the same whether
it is passed in a matter directly in issue between the parties, or is
passed incidentally to make the adjudication of the dispute between the
parties fair and effective. On this view of the matter, it seems to us that
the whole attack against the impugned order based on the assumption that it
infringes the petitioners' fundamental rights under Article 19(1), must
fail.”

12. It is apt to note here that the nine-Judge Bench referred to Budan
Choudhry v. State of Bihar[16], Parbhani Transport Cooperative Society Ltd.
v. Regional Transport Authority, Aurangabad[17] and Prem Chand Garg v.
Excise Commissioner, U.P. Allahabad[18] and explained the same and
eventually held:-
“If the decision of a superior court on a question of its jurisdiction is
erroneous, it can, of course, be corrected by appeal or revision as may be
permissible under the law; but until the adjudication by a superior court
on such a point is set aside by adopting the appropriate course, it would
not be open to be corrected by the exercise of the writ jurisdiction of
this Court.”

13. In the first decade of this century in Rupa Ashok Hurra v. Ashok
Hurra and Another[19], the Constitution Bench referred to the Triveniben v.
State of Gujarat[20], reiterated the same principle and observed:-
“It is well settled now that a judgment of court can never be challenged
under Articles 14 or 21 and therefore the judgment of the court awarding
the sentence of death is not open to challenge as violating Article 14 or
Article 21 as has been laid down by this Court in Naresh Shridhar Mirajkar
v. State of Maharashtra (supra) and also in A.R. Antulay v. R.S. Nayak[21]
, the only jurisdiction which could be sought to be exercised by a prisoner
for infringement of his rights can be to challenge the subsequent events
after the final judicial verdict is pronounced and it is because of this
that on the ground of long or inordinate delay a condemned prisoner could
approach this Court and that is what has consistently been held by this
Court. But it will not be open to this Court in exercise of jurisdiction
under Article 32 to go behind or to examine the final verdict reached by a
competent court convicting and sentencing the condemned prisoner and even
while considering the circumstances in order to reach a conclusion as to
whether the inordinate delay coupled with subsequent circumstances could be
held to be sufficient for coming to a conclusion that execution of the
sentence of death will not be just and proper.”

14. Recently, in Radhey Shyam & Anr. v. Chhabi Nath & Ors.[22], a three-
Judge Bench while dealing with the correctness of the law laid down by a
two-Judge Bench, as there was a reference by a Division Bench expressing
its doubt about the ratio laid down in Surya Dev Rai v. Ram Chander Rai and
others[23] that judicial orders passed by the Civil Court can be examined
and then corrected/reversed by the writ court under Article 226 in exercise
of its power under writ of certiorari, speaking through one of us (Adarsh
Kumar Goel, J.), referred to number of judgments including some of the
decisions we have cited hereinabove and reproduced the opinion expressed in
Sadhana Lodh v. National Insurance Co. Ltd.[24], which is to the following
effect:-
"6. The right of appeal is a statutory right and where the law
provides remedy by filing an appeal on limited grounds, the grounds of
challenge cannot be enlarged by filing a petition under Articles
226/227 of the Constitution on the premise that the insurer has limited
grounds available for challenging the award given by the Tribunal. Section
149(2) of the Act limits the insurer to file an appeal on those enumerated
grounds and the appeal being a product of the statute it is not open to
an insurer to take any plea other than those provided under Section
149(2) of the Act (see National Insurance Co. Ltd. v. Nicolletta
Rohtagi[25]). This being the legal position, the petition filed under
Article 227 of the Constitution by the insurer was wholly
misconceived. Where a statutory right to file an appeal has been provided
for, it is not open to the High Court to entertain a petition under Article
227 of the Constitution. Even if where a remedy by way of an appeal has
not been provided for against the order and judgment of a District
Judge, the remedy available to the aggrieved person is to file a
revision before the High Court under Section 115 of the Code of Civil
Procedure. Where remedy for filing a revision before the High Court under
Section 115 CPC has been expressly barred by a State enactment, only in
such case a petition under Article 227 of the Constitution would lie and
not under Article 226 of the Constitution. As a matter of illustration,
where a trial court in a civil suit refused to grant temporary
injunction and an appeal against refusal to grant injunction has
been rejected, and a State enactment has barred the remedy of filing
revision under Section 115 CPC, in such a situation a writ petition
under Article 227 would lie and not under Article 226 of the
Constitution. Thus, where the State Legislature has barred a remedy of
filing a revision petition before the High Court under Section 115 CPC, no
petition under Article 226 of the Constitution would lie for the reason
that a mere wrong decision without anything more is not enough to
attract jurisdiction of the High Court under Article 226 of the
Constitution."

15. After so stating, the three-Judge Bench referred to Surya Dev Rai
(supra), the analysis made by the two-Judge Bench and ultimately came to
hold thus:-
“.... There are no precedents in India for High Courts to issue writs to
subordinate courts. Control of working of subordinate courts in dealing
with their judicial orders is exercised by way of appellate or
revisional powers or power of superintendence under Article 227.
Orders of civil court stand on different footing from the orders of
authorities or Tribunals or courts other than judicial/civil courts. While
appellate or revisional jurisdiction is regulated by statutes, power
of superintendence under Article 227 is constitutional. The
expression "inferior court" is not referable to judicial courts, as rightly
observed in the referring order in paras 26 and 27 quoted above.”

After so stating, the Court proceeded to hold as follows:-
“The Bench in Surya Dev Rai 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 Article 226 and 227 was
obliterated was not correct as rightly observed 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 and another vs. Amarnath and
another (supra), Ouseph Mathai vs. M. Abdul Khadir[26], Shalini Shyam
Shetty vs. Rajendra Shankar Patil[27] and Sameer Suresh Gupta vs. Rahul
Kumar Agarwal[28].”

The eventual conclusions read as follows:-
“23. Thus, 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 view 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.

24. We may also deal with the submission made on behalf of the respondent
that the view in Surya Dev Rai stands approved by larger Benches in Shail,
Mahendra Saree Emporium and Salem Advocate Bar Assn and on that ground
correctness of the said view cannot be gone into by this Bench. In Shail,
though reference has been made to Surya Dev Rai, 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, reference to
Surya Dev Rai 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 Bar Assn. in para 40, reference
to Surya Dev Rai is for the same purpose. We are, thus, unable to accept
the submission of learned counsel for the respondent.

25. Accordingly, we answer the question referred as follows:

"(i) Judicial orders of civil court are not amenable to writ
jurisdiction under Article 226 of the Constitution;

(ii) Jurisdiction under Article 227 is distinct from jurisdiction
from jurisdiction under Article 226.

Contrary view in Surya Dev Rai is overruled."

16. The aforesaid authoritative pronouncement makes it clear as day that
an order passed by a civil court can only be assailed under Article 227 of
the Constitution of India and the parameters of challenge have been clearly
laid down by this Court in series of decisions which have been referred to
by a three-Judge Bench in Radhey Shyam (supra), which is a binding
precedent. Needless to emphasise that once it is exclusively assailable
under Article 227 of the Constitution of India, no intra-court appeal is
maintainable.
17. The next aspect that has to be adverted to is under what situation, a
Letters Patent Appeal is maintainable before a Division Bench. We repeat
at the cost of repetition, we have referred to series of judgments of this
Court which have drawn the distinction between Article 226 and 227 of the
Constitution of India and the three-Judge Bench in Radhey Shyam (supra) has
clearly stated that jurisdiction under Article 227 is distinct from
jurisdiction under Article 226 of the Constitution and, therefore, a
letters patent appeal or an intra-court appeal in respect of an order
passed by the learned Single Judge dealing with an order arising out of a
proceeding from a Civil Court would not lie before the Division Bench.
Thus, the question next arises under what circumstances a letters patent
appeal or an intra-court appeal would be maintainable before the Division
Bench.
18. In Umaji Keshao Meshram and Others v. Radhikabai and Another[29],
this Court has held thus:-

“106. The non obstante clause in Rule 18, namely, “Notwithstanding anything
contained in Rules 1, 4 and 17 of this chapter”, makes it abundantly clear
why that rule uses the words “finally disposed of”. As seen above, under
Rules 1 and 17, applications under Articles 226 and 227 are required to be
heard and disposed of by a Division Bench. Rule 4, however, gives power to
a Single Judge to issue rule nisi on an application under Article 226 but
precludes him from passing any final order on such application. It is
because a Single Judge has no power under Rules 1, 4 and 17 to hear and
dispose of a petition under Article 226 or 227 that the non obstante clause
has been introduced in Rule 18. The use of the words “be heard and finally
disposed of by a Single Judge” in Rule 18 merely clarifies the position
that in such cases the power of the Single Judge is not confined merely to
issuing a rule nisi. These words were not intended to bar a right of
appeal. To say that the words “finally disposed of” mean finally disposed
of so far as the High Court is concerned is illogical because Rules 1, 4
and 7 use the words “be heard and disposed of by a Divisional Bench” and
[pic]were the reasoning of the Full Bench correct, it would mean that so
far as the High Court is concerned, when a Single Judge hears a matter and
disposes it of, it is finally disposed of and when a Division Bench
disposes it of, it is not finally disposed of. The right of appeal against
the judgment of a Single Judge is given by the Letters Patent which have
been continued in force by Article 225 of the Constitution. If under the
Rules of the High Court, a matter is heard and disposed of by a Single
Judge, an appeal lies against his judgment unless it is barred either under
the Letters Patent or some other enactment. The word “finally” used in Rule
18 of Chapter XVII of the Appellate Side Rules does not and cannot possibly
have the effect of barring a right of appeal conferred by the Letters
Patent. As we have seen above, an intra-court appeal against the judgment
of a Single Judge in a petition under Article 226 is not barred while
clause 15 itself bars an intra-court appeal against the judgment of a
Single Judge in a petition under Article 227.

107. Petitions are at times filed both under Articles 226 and 227 of the
Constitution. The case of Hari Vishnu Kamath v. Syed Ahmad Ishaque[30]
before this Court was of such a type. Rule 18 provides that where such
petitions are filed against orders of the Tribunals or authorities
specified in Rule 18 of Chapter XVII of the Appellate Side Rules or against
decrees or orders of courts specified in that rule, they shall be heard and
finally disposed of by a Single Judge. The question is whether an appeal
would lie from the decision of the Single Judge in such a case. In our
opinion, where the facts justify a party in filing an application either
under Article 226 or 227 of the Constitution, and the party chooses to file
his application under both these articles, in fairness and justice to such
party and in order not to deprive him of the valuable right of appeal the
court ought to treat the application as being made under Article 226, and
if in deciding the matter, in the final order the court gives ancillary
directions which may pertain to Article 227, this ought not to be held to
deprive a party of the right of appeal under clause 15 of the Letters
Patent where the substantial part of the order sought to be appealed
against is under Article 226. Such was the view taken by the Allahabad High
Court in Aidal Singh v. Karan Singh[31] and by the Punjab High Court in Raj
Kishan Jain v. Tulsi Dass[32] and Barham Dutt v. Peoples’ Cooperative
Transport Society Ltd., New Delhi[33] and we are in agreement with it.”

19. Similar view was reiterated in Sushilabai Laxminarayan Mudliyar and
others v. Nihalchand Waghajibhai Shaha and others[34], which arose from the
High Court of Bombay.
20. In Mangalbhai and Others v. Radhyshyam[35] the dismissal of an
application for eviction by the Deputy Collector and Rent Controller and
its assail in appeal not resulting in success, compelled the landlord to
file a writ petition under Articles 226 and 227 of the Constitution of
India before the Bombay High Court. Before this Court, an objection was
raised with regard to the maintainability of the letters patent appeal.
This Court referred to the decision in Umaji Keshao Meshram case (supra)
and opined as follows:-

“6. Applying the correct ratio laid down in Umaji Keshao Meshram case
(supra) and perusing the writ petition filed in the present case as well as
the order passed by the learned Single Judge we are clearly of the view
that the present case clearly falls within the ambit of Article 226 of the
Constitution. In Umaji Keshao Meshram case (supra) it was clearly held
that:

[pic]“Where the facts justify a party in filing an application either under
Article 226 or 227 of the Constitution, and the party chooses to file his
application under both these Articles, in fairness and justice to such
party and in order not to deprive him of the valuable right of appeal the
court ought to treat the application as being made under Article 226 ….”

7. The learned Single Judge in his impugned judgment dated December 11,
1987 nowhere mentioned that he was exercising the powers under Article 227
of the Constitution. The learned Single Judge examined the matter on merit
and set aside the orders of the Rent Controller as well as the Resident
Deputy Collector on the ground that the aforesaid judgments were perverse.
The findings of the Rent Controller and Resident Deputy Collector were set
aside on the question of habitual defaulter as well as on the ground of
bona fide need. Thus in the totality of the facts and circumstances of the
case, the pleadings of the parties in the writ petition and the judgment of
the learned Single Judge leaves no manner of doubt that it was an order
passed under Article 226 of the Constitution and in that view of the matter
the Letters Patent Appeal was maintainable before the High Court.”

21. In Lokmat Newspapers Pvt. Ltd. v. Shankarprasad[36], the controversy
arose from the order passed by the Labour Court which had secured
affirmation from the Industrial Tribunal. The said orders were challenged
by the respondent therein by filing a writ petition under Articles 226 and
227 of the Constitution of India before the High Court. The Court adverted
to the facts and also the order passed by the learned Single Judge and in
that context ruled:-

“As seen earlier, he was considering the aforesaid writ petition moved
under Article 226 as well as Article 227 of the Constitution of India.
Under these circumstances, it is not possible to agree with the contention
of learned counsel for the appellant that the learned Single Judge had
refused to interfere only under Article 227 of the Constitution of India
when he dismissed the writ petition of the respondent.”

Thereafter, the learned Judges referred to the authority in Umaji
Keshao Meshram (supra) and ruled:-
“The aforesaid decision squarely gets attracted on the facts of the present
case. It was open to the respondent to invoke the jurisdiction of the High
Court both under Articles 226 and 227 of the Constitution of India. Once
such a jurisdiction was invoked and when his writ petition was dismissed on
merits, it cannot be said that the learned Single Judge had exercised his
jurisdiction only under Article 226 (sic 227) of the Constitution of India.
This conclusion directly flows from the relevant averments made in the writ
petition and the nature of jurisdiction invoked by the respondent as noted
by the learned Single Judge in his judgment, as seen earlier. Consequently,
it could not be said that clause 15 of the Letters Patent was not attracted
for preferring appeal against the judgment of the learned Single Judge.”

22. In Kishorilal v. Sales Officer, District Land Development Bank and
Others[37], a recovery proceeding was initiated by the respondent-Bank
therein and the land mortgaged to the Bank were sold. An appeal preferred
before the Joint Registrar, Cooperative Societies was dismissed and a
further appeal was preferred before the Board of Revenue which interfered
with the order passed by the Joint Registrar. The order passed by the
Board of Revenue was called in question by the District Land Development
Bank, which was allowed by the learned Single Judge. A letters patent
appeal was preferred challenging the order of the learned Single Judge
which opined that the order passed by the learned Single Judge was not
maintainable as he had exercised the jurisdiction under Article 227 of the
Constitution of India. Dealing with the maintainability of the appeal, the
two-Judge Bench held that:-

“The learned Single Judge of the High Court, in our opinion, committed an
error in interfering with the findings of fact arrived at by the Board of
Revenue. The Division Bench of the High Court also wrongly dismissed the
LPA without noticing that an appeal would be maintainable if the writ
petition was filed under Articles 226 and 227 of the Constitution of India
as was held by this Court in Sushilabai Laxminarayan Mudliyar v. Nihalchand
Waghajibhai Shaha[38].”

23. In Ashok K. Jha and others v. Garden Silk Mills Ltd. and Another[39],
as the factual matrix would reveal, the employees had approached the Labour
Court for certain reliefs. The Labour Court on consideration of the facts
and law, declined to grant the relief. Being dissatisfied, the employees
and the Union preferred a joint appeal before the Industrial Court, Surat
which set aside the order of the Labour Court and issued certain directions
against the employer. The employer called in question the defensibility
of the order of the Industrial Court by filing a Special Civil Application
under Article 226 and 227 of the Constitution of India before the High
Court of Gujarat. The learned Single Judge dismissed the petition. Being
grieved by the aforesaid order, a letters patent appeal was preferred under
clause 15 of the Letters Patent. The Division Bench allowed the appeal and
set aside the judgment and order passed by the learned Single Judge. A
contention was raised before this Court pertaining to maintainability of
letters patent appeal under clause 15 of the Letters Patent. R.M. Lodha,
J. (as His Lordship then was) speaking for the Court, referred to the
authorities in Umaji Keshao Meshram (supra), Ratnagiri Dist. Central Coop.
Bank Ltd. v. Dinkar Kashinath Watve[40], Ramesh Chandra Sankla v. Vikram
Cement[41] and stated thus:-

“36. If the judgment under appeal falls squarely within four corners of
Article 227, it goes without saying that intra-court appeal from such
judgment would not be maintainable. On the other hand, if the petitioner
has invoked the jurisdiction of the High Court for issuance of certain writ
under [pic]Article 226, although Article 227 is also mentioned, and
principally the judgment appealed against falls under Article 226, the
appeal would be maintainable. What is important to be ascertained is the
true nature of order passed by the Single Judge and not what provision he
mentions while exercising such powers.

37. We agree with the view of this Court in Ramesh Chandra Sankla (supra)
that a statement by a learned Single Judge that he has exercised power
under Article 227, cannot take away right of appeal against such judgment
if power is otherwise found to have been exercised under Article 226. The
vital factor for determination of maintainability of the intra-court appeal
is the nature of jurisdiction invoked by the party and the true nature of
principal order passed by the Single Judge.”

24. At this juncture, we think it appropriate to reproduce a passage from
Ramesh Chandra Sankla (supra) which has been quoted in Ashok Jha (supra).
In the said case, the two-Judge Bench while dealing with the
maintainability of letters patent appeal under clause 15 of the Letters
Patent has ruled that:-
“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….”

25. From the aforesaid pronouncements, it is graphically clear 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. 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, needless to emphasise, would depend upon various
aspects that have been emphasised in the aforestated authorities of this
Court. 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. We reiterate 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 Division Bench would also be required to
scrutinize 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. Be it stated, one of the conclusions recorded
by the High Court in the impugned judgment pertains to demand and payment
of court fees. We do not intend to comment on the same as that would
depend upon the rules framed by the High Court.
26. The next facet pertains to the impleadment of the Court or tribunal
as a party. The special Bench has held that even if application is
described as one not only under article 226 of the Constitution, but also
under article 227, the Court or tribunal whose order is sought to be
quashed, if not arrayed as a party, the application would not be
maintainable as one of the relief of certiorari, in the absence of the
concerned tribunal or Court as a party, cannot be granted. It has also
been held that if the Court or tribunal has not been impleaded as party-
respondent in the main writ petition, then by merely impleading such Court
or tribunal for the first time in letters patent appeal would not change
the nature and character of the proceeding before the learned Single Judge
and, therefore, intra-court appeal would not be maintainable. To arrive
at the said conclusion, the High Court has referred to Messrs. Ghaio Mal &
Sons v. State of Delhi and others[42], Hari Vishnu Kamath (supra) and
relied upon a four-Judge Bench judgment in Udit Narain Singh Malpaharia v.
Addl. Member, Board of Revenue[43].
27. In Hari Vishnu Kamath (supra), after referring to the decision in
T.C. Basappa (supra) and quoting a passage from Corpus Juris Secundum,
Volume 14 at page 123, which deals with the nature of certiorari, it has
been laid down:-
“11. The writ for quashing is thus directed against a record, and as a
record can be brought up only through human agency, it is issued to the
person or authority whose decision is to be reviewed. If it is the record
of the decision that has to be removed by ‘certiorari’, then the fact that
the tribunal has become ‘functus officio’ subsequent to the decision could
have no effect on the jurisdiction of the court to remove the record. If it
is a question of issuing directions, it is conceivable that there should be
in existence a person or authority to whom they could be issued, and when a
‘certiorari’ other than one to quash the decision is proposed to be issued,
the fact that the tribunal has ceased to exist might operate as a bar to
its issue. But if the true scope of ‘certiorari’ to quash is that it merely
demolishes the offending order, the presence of the offender before the
court, though proper, is not necessary for the exercise of the jurisdiction
or to render its determination effective.

12. Learned counsel for the first respondent invites our attention to the
form of the ‘order nisi’ in a writ of ‘certiorari’, and contends that as it
requires the court or tribunal whose proceedings are to be reviewed, to
transmit the records to the superior court, there is, if the tribunal has
ceased to exist, none to whom the writ could be issued and none who could
be compelled to produce the record. But then, if the writ is in reality
directed against the record, there is no reason why it should not be issued
to whosoever has the custody thereof. The following statement of the law in
Ferris on the Law of Extraordinary Legal Remedies is apposite:

“The writ is directed to the body or officer whose determination is to be
reviewed, or to any other person having the custody of the record or other
papers to be certified.””

28. In Ghaio Mal & Sons (supra), the Court found a specific fact was not
brought on record and evasive replies were filed which were wholly
unconvincing. In that context, the Constitution Bench, speaking through
S.R. Das, C.J. observed:-
“... It is needless to say that the adoption of such dubious devices is
not calculated to produce a favourable impression on the mind of the court
as to the good faith of the authorities concerned in the matter. We must
also point out that when a superior court issues a rule on an application
for certiorari it is incumbent on the inferior court or the quasi-judicial
body, to whom the rule is addressed, to produce the entire records before
the court along with its return. The whole object of a writ of certiorari
is to bring up the records of the inferior court or other quasi-judicial
body for examination by the Superior Court so that the latter may be
satisfied that the inferior court or the quasi-judicial body has not gone
beyond its jurisdiction and has exercised its jurisdiction within the
limits fixed by the law. Non-production of the records completely defeats
the purpose for which such writs are issued, as it did in the present case
before the High Court. We strongly deprecate this attempt on the part of
the official respondents to bypass the court.”

29. In Udit Narain Singh Malpaharia (supra), as the facts would
demonstrate the counsel for the respondent therein raised a preliminary
objection that the persons in whose favour the Board decided the petition
had not been made parties before the High Court. Be it noted, in the said
case a country liquor shop was settled in favour of the appellant therein.
After expiry of the said licence, it was renewed in his favour in 1962
which was called in question by one Phudan Manjhi before the Deputy
Commissioner for substituting his name in place of his father on the basis
of the lot drawn in favour of his father. The Deputy Commissioner rejected
the same which was assailed by Phudan Manjhi before the Commissioner of
Excise who remanded the case to the Deputy Commissioner to consider the
fitness of Phudan Manjhi to get the license and to consider his claim on
certain parameters. One Bhagwan Rajak, who was not an applicant before the
Deputy Commissioner, filed an application before the Commissioner alleging
that there should have been fresh advertisement for the settlement of the
shop. The Commissioner allowed his application and directed the Deputy
Commissioner to take steps for fresh settlement of the shop in accordance
with the rules. The said order was assailed before the Board of Revenue
which dismissed the petition and directed that unless the Deputy
Commissioner came to a definite conclusion that Phudan Manjhi was unfit to
hold licence, he should be selected as a licensee in accordance with rules.
As a result of the said proceedings, the appellant’s licence stood
cancelled and the Deputy Commissioner was directed to hold a fresh
settlement giving preferential treatment to Phudan Manjhi. A writ
petition was filed under Article 226 of the Constitution before the High
Court for quashment of the said orders and before the writ court neither
Phudan Manjhi nor Bhagwan Rajak in whose favour the Board of Revenue had
decided was made a party. During the pendency of an appeal before this
Court, the Deputy Commissioner had conducted an enquiry and come to the
conclusion that Phudan Manjhi was not fit to be selected for grant of
licence and he was waiting for making a fresh settlement. In course of
hearing of the appeal, a preliminary objection was raised by the learned
counsel for the respondent that as Phudan Manjhi and Bhagwan Rajak who were
necessary parties to the writ petition were not made parties, the High
Court was justified in dismissing the writ petition in limini. This Court
accepted the preliminary objection holding that the law on the subject is
well settled that a person who is a necessary party is one without whom no
order can be made effectively and a proper party is one in whose absence an
effective order can be made but his presence is necessary for complete and
final decision on the question involved in the proceeding. After so
stating, the four- Judge Bench proceeded to deal with the nature of writ of
certiorari and reproduced a passage from King v. Electricity
Commissioners[44], which is as follows:-
“8. “....Wherever any body of persons having legal authority to determine
questions affecting the rights of subjects, and having the duty to act
judicially, act in excess of their legal authority they are subject to the
controlling jurisdiction of the King's Bench Division exercised in these
writs.”

Lord Justice Slesser in King v. London County Council[45] dissected the
concept of judicial act laid down by Atkin, L.J., into the following heads
in his judgment: “Wherever any body of persons (1) having legal authority
(2) to determine questions affecting rights of subjects and (3) having the
duty to act judicially (4) act in excess of their legal authority — a writ
of certiorari may issue.” It will be seen from the ingredients of judicial
act that there must be a duty to act judicially. A tribunal, therefore,
exercising a judicial or quasi-judicial act cannot decide against the
rights of a party without giving him a hearing or an opportunity to
represent his case in the manner known to law. If the provisions of a
particular statute or rules made thereunder do not provide for it,
principles of natural justice demand it. Any such order made without
hearing the affected parties would be void. As a writ of certiorari will be
granted to remove the record of proceedings of an inferior tribunal or
authority exercising judicial or quasi-judicial acts, ex hypothhesi it
follows that the High Court in exercising its jurisdiction shall also act
judicially in disposing of the proceedings before it. It is implicit in
such a proceeding that a tribunal or authority which is directed to
transmit the records must be a party in the writ proceedings, for, without
giving notice to it, the record of proceedings cannot be brought to the
High Court. It is said that in an appeal against the decree of a
subordinate court, the court that passed the decree need not be made a
party and on the same parity of reasoning it is contended that a tribunal
need not also be made a party in a writ proceeding. But there is an
essential distinction between an appeal against a decree of a subordinate
court and a writ of certiorari to quash the order of a tribunal or
authority: in the former, the proceedings are regulated by the Code of
Civil Procedure and the court making the order is directly subordinate to
the appellate court and ordinarily acts within its bounds, though sometimes
wrongly or even illegally, but in the case of the latter, a writ of
certiorari is issued to quash the order of a tribunal which is ordinarily
outside the appellate or revisional jurisdiction of the court and the order
is set aside on the ground that the tribunal or authority acted without or
in excess of jurisdiction. If such a tribunal or authority is not made
party to the writ, it can easily ignore the order of the High Court
quashing its order, for, not being a party, it will not be liable to
contempt. In these circumstances whoever else is a necessary party or not
the authority or tribunal is certainly a necessary party to such a
proceeding. In this case, the Board of Revenue and the Commissioner of
Excise were rightly made parties in the writ petition.”

Thereafter, the Court proceeded to lay down thus:-
“9. The next question is whether the parties whose rights are directly
affected are the necessary parties to a writ petition to quash the order of
a tribunal. As we have seen, a tribunal or authority performs a judicial or
quasi-judicial act after hearing parties. Its order affects the right or
rights of one or the other of the parties before it. In a writ of
certiorari the defeated party seeks for the quashing of the order issued by
the tribunal in favour of the successful party. How can the High Court
vacate the said order without the successful party being before it? Without
the presence of the successful party the High Court cannot issue a
substantial order affecting his right. Any order that may be issued behind
the back of such a party can be ignored by the said party, with the result
that the tribunal's order would be quashed but the right vested in that
party by the wrong order of the tribunal would continue to be effective.
Such a party, therefore, is a necessary party and a petition filed for the
issue of a writ of certiorari without making him a party or without
impleading him subsequently, if allowed by the court, would certainly be
incompetent. A party whose interests are directly affected is, therefore, a
necessary party.

10. In addition, there may be parties who may be described as proper
parties, that is parties whose presence is not necessary for making an
effective order, but whose presence may facilitate the settling of all the
questions that may be involved in the controversy. The question of making
such a person as a party to a writ proceeding depends upon the judicial
discretion of the High Court in the circumstances of each case. Either one
of the parties to the proceeding may apply for the impleading of such a
parry or such a party may suo motu approach the court for being impleaded
therein.”

After so stating, the four-Judge Bench referred to English practice
as recorded in Halsbury’s Laws of England, Vol. 11, 3rd Edn. (Lord
Simonds’) and a Division Bench judgment of the Bombay High Court in
Ahmedalli v. M.D. Lalkaka[46] and a Full Bench decision of Nagpur High
Court in Kanglu Baula v. Chief Executive Officer[47] and summarized thus:
“To summarise: in a writ of certiorari not only the tribunal or authority
whose order is sought to be quashed but also parties in whose favour the
said order is issued are necessary parties. But it is in the discretion of
the court to add or implead proper parties for completely settling all the
questions that may be involved in the controversy either suo motu or on the
application of a party to the writ or an application filed at the instance
of such proper party.”

30. The High Court, as we find, relied on the aforesaid decision to form
the foundation that unless a Court or a tribunal is made a party, the
proceeding is not maintainable. What has been stated in Hari Vishnu Kamath
(supra), which we have reproduced hereinbefore is that where plain question
on issuing directions arises, it is conceivable that there should be in
existence a person or authority to whom such directions could be issued.
The suggestion that non-existence of a tribunal might operate as a bar to
issue such directions is not correct as the true scope of certiorari is
that it merely demolishes the offending order and hence, the presence of
the offender before the Court, though proper is not necessary for the
exercise of the jurisdiction or to render its determination effective.
31. In Udit Narain Singh (supra), the fulcrum of the controversy was non-
impleadment of the persons in whose favour the Board of Revenue had passed
a favourable order. There was violation of fundamental principles of
natural justice. A party cannot be visited with any kind of adverse order
in a proceeding without he being arrayed as a party. As we understand in
Hari Vishnu Kamath (supra), the seven-Judge Bench opined that for issuance
of writ of certiorari, a tribunal, for issue of purpose of calling of
record, is a proper party, and even if the tribunal has ceased to exist,
there would be some one incharge of the tribunal from whom the records can
be requisitioned and who is bound in law to send the records. The larger
Bench has clearly stated that while issuing a writ of certiorari, the Court
merely demolishes the defending order, the presence of the offender before
the Court though proper but is not necessary for exercise of jurisdiction.
The said finding was recorded in the context of a tribunal.
32. In this context, we may profitably refer to the decision in Savitri
Devi (supra) wherein a three-Judge Bench, though in a different context,
had observed thus:-
“Before parting with this case, it is necessary for us to point out one
aspect of the matter which is rather disturbing. In the writ petition filed
in the High Court as well as the special leave petition filed in this
Court, the District Judge, Gorakhpur and the 4th Additional Civil Judge
(Junior Division), Gorakhpur are shown as respondents and in the special
leave petition, they are shown as contesting respondents. There was no
necessity [pic]for impleading the judicial officers who disposed of the
matter in a civil proceeding when the writ petition was filed in the High
Court; nor is there any justification for impleading them as parties in the
special leave petition and describing them as contesting respondents. We do
not approve of the course adopted by the petitioner which would cause
unnecessary disturbance to the functions of the judicial officers
concerned. They cannot be in any way equated to the officials of the
Government. It is high time that the practice of impleading judicial
officers disposing of civil proceedings as parties to writ petitions under
Article 226 of the Constitution of India or special leave petitions under
Article 136 of the Constitution of India was stopped. We are strongly
deprecating such a practice.”

33. The High Court after referring to the controversy involved in
Savitri Devi (supra) has opined thus:-
“In our opinion, the observations of the Supreme Court pertained to the
judicial officers being made parties in the proceedings as against a
person, authority or a State being made a party in a petition under Article
226 and a Court or a Tribunal not being so required in a petition under
Article 227 of the Constitution of India.”

After so stating, the High Court has proceeded to express the view
that it is not a binding precedent and thereafter opined:-
“We are of the opinion that although in Hari Vishnu Kamath (supra), the
Supreme Court may have observed that the presence of the Tribunal would be
proper yet may not be necessary for the exercise of the jurisdiction or to
render its determination effective, but the said principle has been more
elaborately explained and made clear by the Supreme Court in Udit Narain
(supra) laying down as an absolute proposition of law that no writ could be
issued under Article 226 of the Constitution without the Tribunal, whose
order is sought to be impugned, is made a party respondent.”

34. As we notice, the decisions rendered in Hari Vishnu Kamath (supra),
Udit Narain Singh (supra) and Savitri Devi (supra) have to be properly
understood. In Hari Vishnu Kamath (supra), the larger Bench was dealing
with a case that arose from Election Tribunal which had ceased to exist and
expressed the view how it is a proper party. In Udit Narain Singh (supra),
the Court was really dwelling upon the controversy with regard to the
impleadment of parties in whose favour orders had been passed and in that
context observed that tribunal is a necessary party. In Savitri Devi
(supra), the Court took exception to courts and tribunals being made
parties. It is apposite to note here that propositions laid down in each
case has to be understood in proper perspective. Civil courts, which
decide matters, are courts in the strictest sense of the term. Neither the
court nor the Presiding Officer defends the order before the superior court
it does not contest. If the High Court, in exercise of its writ
jurisdiction or revisional jurisdiction, as the case may be, calls for the
records, the same can always be called for by the High court without the
Court or the Presiding Officer being impleaded as a party. Similarly, with
the passage of time there have been many a tribunal which only adjudicate
and they have nothing to do with the lis. We may cite few examples; the
tribunals constituted under the Administrative Tribunals Act, 1985, the
Custom, Excise & Service Tax Appellate Tribunal, the Income Tax Appellate
Tribunals, the Sales Tax Tribunal and such others. Every adjudicating
authority may be nomenclatured as a tribunal but the said authority(ies)
are different that pure and simple adjudicating authorities and that is why
they are called the authorities. An Income Tax Commissioner, whatever rank
he may be holding, when he adjudicates, he has to be made a party, for he
can defend his order. He is entitled to contest. There are many
authorities under many a statute. Therefore, the proposition that can
safely be culled out is that the authorities or the tribunals, who in law
are entitled to defend the orders passed by them, are necessary parties and
if they are not arrayed as parties, the writ petition can be treated to be
not maintainable or the court may grant liberty to implead them as parties
in exercise of its discretion. There are tribunals which are not at all
required to defend their own order, and in that case such tribunals need
not be arrayed as parties. To give another example:- in certain enactments,
the District Judges function as Election Tribunals from whose orders a
revision or a writ may lie depending upon the provisions in the Act. In
such a situation, the superior court, that is the High Court, even if
required to call for the records, the District Judge need not be a party.
Thus, in essence, when a tribunal or authority is required to defend its
own order, it is to be made a party failing which the proceeding before the
High Court would be regarded as not maintainable.
35. We have stated in the beginning that three issues arise despite the
High Court framing number of issues and answering it at various levels. It
is to be borne in mind how the jurisdiction under the letters patent appeal
is to be exercised cannot exhaustively be stated. It will depend upon the
Bench adjudicating the lis how it understands and appreciates the order
passed by the learned Single Judge. There cannot be a straight-jacket
formula for the same. Needless to say, the High Court while exercising
jurisdiction under Article 227 of the Constitution has to be guided by the
parameters laid down by this Court and some of the judgments that have been
referred to in Radhey Shyam (supra).
36. In view of the aforesaid analysis, we proceed to summarise our
conclusions as follows:-

(A) Whether a letters patent appeal would lie against the order passed by
the learned Single Judge that has travelled to him from the other tribunals
or authorities, would depend upon many a facet. The Court fee payable on a
petition to make it under Article 226 or Article 227 or both, would depend
upon the rules framed by the High Court.
(B) The order passed by the civil court is only amenable to be
scrutinized by the High Court in exercise of jurisdiction under Article 227
of the Constitution of India which is different from Article 226 of the
Constitution and as per the pronouncement in Radhey Shyam (supra), no writ
can be issued against the order passed by the civil court and, therefore,
no letters patent appeal would be maintainable.
(C) The writ petition can be held to be not maintainable if a tribunal or
authority that is required to defend the impugned order has not been
arrayed as a party, as it is a necessary party.
(D) Tribunal being or not being party in a writ petition is not
determinative of the maintainability of a letters patent appeal.
37. Having recorded our conclusions in seriatim, we think it appropriate
that the matters should be remanded to the High Court to be heard by the
Division Bench in accordance with the principles laid down in this judgment
and accordingly we so direct. Resultantly, with the modifications in the
order of the High Court, the appeals stand disposed of. There shall be no
order as to costs.

..................................J.
[Dipak Misra]

................................. J.
[Adarsh Kumar Goel]

New Delhi
July 6, 2015
-----------------------
[1] 2013 (1) GLH 440
[2] 1995 (1) GLH 58
[3] AIR 1954 SC 440
[4] 1924-1 KB 171 at p.205 (C)
[5] (1879) 4 AC 30 at p. 39 (D)
[6] (1922) 2 AC 128 at p. 156 (E)
[7] (1854) 9 EX 111 (F)
[8] (1889) 21 QBD 313 (G)
[9] AIR 1952 SC 192 at pp. 195-196 (I)
[10] AIR 1955 SC 233
[11] AIR 1954 SC 215
[12] AIR 1958 SC 398
[13] AIR 1963 SC 946
[14] AIR 1947 PC 90
[15] AIR 1967 SC 1
[16] AIR 1955 SC 191
[17] AIR 1960 SC 801
[18] AIR 1963 SC 996
[19] (2002) 4 SCC 388
[20] (1989) 1 SCC 678
[21] (1988) 2 SCC 602
[22] 2015 (3) SCALE 88
[23] (2003) 6 SCC 675
[24] (2003) 3 SCC 524
[25] (2002) 7 SCC 456
[26] (2002) 1 SCC 319
[27] (2010) 8 SCC 329
[28] (2013) 9 SCC 374
[29] 1986 (Supp) SCC 401
[30] (1955) 1 SCR 1104 : AIR 1955 SC 233
[31] AIR 1957 All 414 : 1957 All LJ 388 (FB)
[32] AIR 1959 Punj 291
[33] AIR 1961 Punj 24 : ILR (1961) 1 Punj 283
[34] 1993 Supp. (1) SCC 11
[35] (1992) 3 SCC 448
[36] (1999) 6 SCC 275
[37] (2006) 7 SCC 496
[38] 1993 Supp (1) SCC 11
[39] (2009) 10 SCC 584
[40] (1993) Supp (1) SCC 9
[41] (2008) 14 SCC 58
[42] AIR 1959 SC 65
[43] AIR 1963 SC 786
[44] 1924 1 KB
[45] (1931) 2 KB 215, (243)
[46] AIR 1954 Bom 33, 34
[47] AIR 1955 Nag. 49

-----------------------
49

whether it is imperative for an unwed mother to specifically notify the putative father of the child whom she has given birth to of her petition for appointment as the guardian of her child. The common perception would be that three competing legal interests would arise, namely, of the mother and the father and the child. We think that it is only the last one which is conclusive, since the parents in actuality have only legal obligations. A child, as has been ubiquitously articulated in different legal forums, is not a chattel or a ball to be shuttled or shunted from one parent to the other. The Court exercises paren patrae jurisdiction in custody or guardianship wrangles; it steps in to secure the welfare of the hapless child of two adults whose personal differences and animosity has taken precedence over the future of their child.

REPORTABLE
IN THE SUPRME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. …….. OF 2015
[Arising out of SLP (Civil) No. 28367 of 2011]

ABC … Appellant
Versus
The State (NCT of Delhi) … Respondent
J U D G M E N T
VIKRAMAJIT SEN, J.

1. A legal nodus of seminal significance and of prosaic procedural
origination presents itself before us. The conundrum is whether it is
imperative for an unwed mother to specifically notify the putative father
of the child whom she has given birth to of her petition for appointment as
the guardian of her child. The common perception would be that three
competing legal interests would arise, namely, of the mother and the father
and the child. We think that it is only the last one which is conclusive,
since the parents in actuality have only legal obligations. A child, as
has been ubiquitously articulated in different legal forums, is not a
chattel or a ball to be shuttled or shunted from one parent to the other.
The Court exercises paren patrae jurisdiction in custody or guardianship
wrangles; it steps in to secure the welfare of the hapless child of two
adults whose personal differences and animosity has taken precedence over
the future of their child.

2. Leave granted. This Appeal is directed against the Judgment dated
8.8.2011 delivered by the High Court of Delhi, which has dismissed the
First Appeal of the Appellant, who is an unwed mother, holding that her
guardianship application cannot be entertained unless she discloses the
name and address of the father of her child, thereby enabling the Court to
issue process to him. As per the Appellant’s request, her identity and
personal details as well as those of her son have not been revealed herein.

3. The Appellant, who adheres to the Christian faith, is well educated,
gainfully employed and financially secure. She gave birth to her son in
2010, and has subsequently raised him without any assistance from or
involvement of his putative father. Desirous of making her son her nominee
in all her savings and other insurance policies, she took steps in this
direction, but was informed that she must either declare the name of the
father or get a guardianship/adoption certificate from the Court. She
thereupon filed an application under Section 7 of the Guardians and Wards
Act, 1890 (the Act) before the Guardian Court for declaring her the sole
guardian of her son. Section 11 of the Act requires a notice to be sent to
the parents of the child before a guardian is appointed. The Appellant has
published a notice of the petition in a daily newspaper, namely Vir Arjun,
Delhi Edition but is strongly averse to naming the father. She has filed
an affidavit stating that if at any time in the future the father of her
son raises any objections regarding his guardianship, the same may be
revoked or altered as the situation may require. However, the Guardian
Court directed her to reveal the name and whereabouts of the father and
consequent to her refusal to do so, dismissed her guardianship application
on 19.4.2011. The Appellant’s appeal before the High Court was dismissed
in limine, on the reasoning that her allegation that she is a single mother
could only be decided after notice is issued to the father; that a natural
father could have an interest in the welfare and custody of his child even
if there is no marriage; and that no case can be decided in the absence of
a necessary party.

4. Ms. Indu Malhotra, learned Senior Counsel for the Appellant, has
vehemently argued before us that the Appellant does not want the future of
her child to be marred by any controversy regarding his paternity, which
would indubitably result should the father refuse to acknowledge the child
as his own.
This is a brooding reality as the father is already married and any
publicity as to a declaration of his fathering a child out of wedlock would
have pernicious repercussions to his present family. There would be severe
social complications for her and her child. As per Section 7 of the Act,
the interest of the minor is the only relevant factor for appointing of a
guardian, and the rights of the mother and father are subservient thereto.
In this scenario, the interest of the child would be best served by
immediately appointing the Appellant as the guardian. Furthermore, it is
also pressed to the fore that her own fundamental right to privacy will be
violated if she is compelled to disclose the name and particulars of the
father of her child. Ms. Malhotra has painstakingly argued this Appeal,
fully cognizant that the question that arises is of far reaching
dimensions. It is this very feature that convinced us of the expediency of
appointing amicus curiae, and Mr. Sidharth Luthra has discharged these
onerous duties zealously, for which we must immediately record our
indebtedness.

5. It would be pertinent to succinctly consider the Guardians and Wards
Act, 1890. The Act, which applies to Christians in India, lays down the
procedure by which guardians are to be appointed by the Jurisdictional
Court. Sections 7, 11 and 19 deserve extraction, for facility of reference.

“7. Power of the court to make order as to guardianship
(1) Where the court is satisfied that it is for the welfare of a minor that
an order should be made-
(a) appointing a guardian of his person or property, or both, or
(b) declaring a person to be such a guardian,
the court may make an order accordingly.
(2) An order under this section shall imply the removal of any guardian who
has not been appointed by will or other instrument or appointed or declared
by the court.
(3) Where a guardian has been appointed by will or other instrument or
appointed or declared by the court, an order under this section appointing
or declaring another person to be guardian in his stead shall not be made
until the powers of the guardian appointed or declared as aforesaid have
ceased under the provisions of this Act.”

The details of the form of application are contained in Section 10 and the
procedure that applies to a guardianship application is prescribed in
Section 11.
11. Procedure on admission of application
(1) If the Court is satisfied that there is ground for proceeding on the
application, it shall fix a day for the hearing thereof, and cause notice
of the application and of the date fixed for the hearing-
(a) to be served in the manner directed in the Code of Civil
Procedure,1882(14 of 1882)11 on-
(i) the parents of the minor if they are residing in any State to which
this Act extends;
(ii) the person, if any, named in the petition or letter as having the
custody or possession of the person or property of the minor;
(iii) the person proposed in the application or letter to be appointed or
declared guardian, unless that person is himself the applicant; and
(iv) any other person to whom, in the opinion of the court special notice
of the applicant should be given; and
(b) to be posted on some conspicuous part of the court-house and of the
residence of the minor, and otherwise published in such manner as the
court, subject to any rules made by the High Court under this Act, thinks
fit.
(2) The State Government may, by general or special order, require that
when any part of the property described in a petition under section 10, sub-
section (1), is land of which a Court of Wards could assume the
superintendence, the court shall also cause a notice as aforesaid to be
served on the Collector in whose district the minor ordinarily resides and
on every Collector in whose district any portion of the land is situate,
and the Collector may cause the notice to be published in any manner he
deems fit.
(3) No charge shall be made by the court or the Collector for the service
or publication of any notice served or published under sub-section (2).

Section 19 is of significance, even though the infant son does not
independently own or possess any property, in that it specifically alludes
to the father of a minor. It reads thus:
19. Guardian not to be appointed by the court in certain cases
Nothing in this Chapter shall authorise the court to appoint or declare a
guardian of the property of a minor whose property is under the
superintendence of a Court of Wards or to appoint or declare a guardian of
the person-
(a) of a minor who is a married female and whose husband is not, in the
opinion of court, unfit to be guardian of her person; or
(b) of a minor whose father is living and is not in the opinion of the
court, unfit to be guardian of the person of the minor; or
(c) of a minor whose property is under the superintendence of a Court of
Wards competent to appoint a guardian of the person of the minor.

We must immediately underscore the difference in nomenclature, i.e.
‘parents’ in Section 11 and ‘father’ in Section 19, which we think will be
perilous to ignore.

6. It is contended on behalf of the State that Section 11 requires a
notice to be given to the ‘parents’ of a minor before a guardian is
appointed; and that as postulated by Section 19, a guardian cannot be
appointed if the father of the minor is alive and is not, in the opinion of
the court, unfit to be the guardian of the child. The impugned judgment is,
therefore, in accordance with the Act and should be upheld. It seems to us
that this interpretation does not impart comprehensive significance to
Section 7, which is the quintessence of the Act. However, before
discussing the intendment and interpretation of the Act, it would be
helpful to appreciate the manner in which the same issue has been dealt
with in other statutes and spanning different legal systems across the
globe.

7. Section 6(b) of the Hindu Minority and Guardianship Act, 1956 makes
specific provisions with respect to natural guardians of illegitimate
children, and in this regard gives primacy to the mother over the father.
Mohammedan law accords the custody of illegitimate children to the mother
and her relations. The law follows the principle that the maternity of a
child is established in the woman who gives birth to it, irrespective of
the lawfulness of her connection with the begetter. However, paternity is
inherently nebulous especially where the child is not an offspring of
marriage. Furthermore, as per Section 8 of the Indian Succession Act,
1925, which applies to Christians in India, the domicile of origin of an
illegitimate child is in the country in which at the time of his birth his
mother is domiciled. This indicates that priority, preference and pre-
eminence is given to the mother over the father of the concerned child.

8. In the United Kingdom, the Children Act 1989 allocates parental
responsibility, which includes all rights, duties, powers, responsibilities
and authority of a parent over the child and his/her property. According to
Section 2(2) of that Act, parental custody of a child born of unwed parents
is with the mother in all cases, and additionally with the father provided
he has acquired responsibility in accordance with the provisions of the
Act. To acquire responsibility, he would have to register as the child’s
father, execute a parental responsibility agreement with the mother or
obtain a Court order giving him parental responsibility over the child.
In the U.S.A., each State has different child custody laws but
predominantly the mother has full legal and physical custody from the time
the child is born. Unless an unmarried father establishes his paternity
over the child it is generally difficult for him to defeat or overwhelm the
preferential claims of the mother to the custody. However, some States
assume that both parents who sign the child’s Birth Certificate have joint
custody, regardless of whether they are married. In Ireland, Section 6(4)
of the Guardianship of Infants Act, 1964 ordains - “The mother of an
illegitimate infant shall be guardian of the infant.” Unless the mother
agrees to sign a statutory declaration, an unmarried father must apply to
the Court in order to become a legal guardian of his child. Article 176 of
the Family Code of the Philippines explicitly provides that “illegitimate
children shall use the surname and shall be under the parental authority of
their mother, and shall be entitled to support in conformity with this
Code.” This position obtains regardless of whether the father admits
paternity. In 2004, the Supreme Court of the Philippines in Joey D.
Briones vs. Maricel P. Miguel et al, G.R. No. 156343, held that an
illegitimate child is under the sole parental authority of the mother. The
law in New Zealand, as laid out in Section 17 of the Care of Children Act,
2004, is that the mother of a child is the sole guardian if she is not
married to, or in civil union with, or living as a de facto partner with
the father of the child at any time during the period beginning with the
conception of the child and ending with the birth of the child. In South
Africa, according to the Children’s Act No. 38 of 2005, parental
responsibility includes the responsibility and the right (a) to care for
the child; (b) to maintain contact with the child; (c) to act as guardian
of the child; and (d) to contribute to the maintenance of the child. The
biological mother of a child, whether married or unmarried, has full
parental responsibilities and rights in respect of the child. The father
has full parental responsibility if he is married to the mother, or if he
was married to her at the time of the child’s conception, or at the time of
the child’s birth or any time in between, or if at the time of the child’s
birth he was living with the mother in a permanent life-partnership, or if
he (i) consents to be identified or successfully applies in terms of
Section 26 to be identified as the child’s father or pays damages in terms
of customary law; (ii) contributes or has attempted in good faith to
contribute to the child’s upbringing for a reasonable period; and (iii)
contributes or has attempted in good faith to contribute towards expenses
in connection with the maintenance of the child for a reasonable period.
This conspectus indicates that the preponderant position that it is the
unwed mother who possesses primary custodial and guardianship rights with
regard to her children and that the father is not conferred with an equal
position merely by virtue of his having fathered the child. This analysis
should assist us in a meaningful, dynamic and enduring interpretation of
the law as it exists in India.

9. It is thus abundantly clear that the predominant legal thought in
different civil and common law jurisdictions spanning the globe as well as
in different statutes within India is to bestow guardianship and related
rights to the mother of a child born outside of wedlock. Avowedly, the
mother is best suited to care for her offspring, so aptly and
comprehensively conveyed in Hindi by the word ‘mamta’. Furthermore,
recognizing her maternity would obviate the necessity of determining
paternity. In situations such this, where the father has not exhibited any
concern for his offspring, giving him legal recognition would be an
exercise in futility. In today’s society, where women are increasingly
choosing to raise their children alone, we see no purpose in imposing an
unwilling and unconcerned father on an otherwise viable family nucleus. It
seems to us that a man who has chosen to forsake his duties and
responsibilities is not a necessary constituent for the wellbeing of the
child. The Appellant has taken care to clarify that should her son’s
father evince any interest in his son, she would not object to his
participation in the litigation, or in the event of its culmination, for
the custody issue to be revisited. Although the Guardian Court needs no
such concession, the mother’s intent in insisting that the father should
not be publically notified seems to us not to be unreasonable.

10. We feel it necessary to add that the purpose of our analysis of the
law in other countries was to arrive at a holistic understanding of what a
variety of jurisdictions felt would be in the best interest of the child.
It was not, as learned Counsel suggested, to understand the tenets of
Christian law. India is a secular nation and it is a cardinal necessity
that religion be distanced from law. Therefore, the task before us is to
interpret the law of the land, not in light of the tenets of the parties’
religion but in keeping with legislative intent and prevailing case law.

11. It is imperative that the rights of the mother must also be given due
consideration. As Ms. Malhotra, learned Senior Counsel for the Appellant,
has eloquently argued, the Appellant’s fundamental right of privacy would
be violated if she is forced to disclose the name and particulars of the
father of her child. Any responsible man would keep track of his offspring
and be concerned for the welfare of the child he has brought into the
world; this does not appear to be so in the present case, on a perusal of
the pleading as they presently portray. Furthermore, Christian unwed
mothers in India are disadvantaged when compared to their Hindu
counterparts, who are the natural guardians of their illegitimate children
by virtue of their maternity alone, without the requirement of any notice
to the putative fathers. It would be apposite for us to underscore that
our Directive Principles envision the existence of a uniform civil code,
but this remains an unaddressed constitutional expectation.

12. We recognize that the father’s right to be involved in his child’s
life may be taken away if Section 11 is read in such a manner that he is
not given notice, but given his lack of involvement in the child’s life, we
find no reason to prioritize his rights over those of the mother or her
child. Additionally, given that the Appellant has already issued notice to
the public in general by way of a publication in a National Daily and has
submitted an affidavit stating that her guardianship rights may be revoked,
altered or amended if at any point the father of the child objects to them,
the rights, nay duty of the father have been more than adequately
protected.

13. The issue at hand is the interpretation of Section 11 of the Act. As
the intention of the Act is to protect the welfare of the child, the
applicability of Section 11 would have to be read accordingly. In Laxmi
Kant Pandey vs. Union of India 1985 (Supp) SCC 701, this Court prohibited
notice of guardianship applications from being issued to the biological
parents of a child in order to prevent them from tracing the adoptive
parents and the child. Although the Guardians and Wards Act was not
directly attracted in that case, nevertheless it is important as it
reiterates that the welfare of the child takes priority above all else,
including the rights of the parents. In the present case we do not find
any indication that the welfare of the child would be undermined if the
Appellant is not compelled to disclose the identity of the father, or that
Court notice is mandatory in the child’s interest. On the contrary, we
find that this may well protect the child from social stigma and needless
controversy.

14. Even in the absence of Laxmi Kant Pandey, we are not like mariners in
unchartered troubled seas. The observations of a three Judge Bench of this
Court in Githa Hariharan v. Reserve Bank of India (1999) 2 SCC 228 are
readily recollected. The RBI had refused to accept an application for a
fixed deposit in the name of the child signed solely by the mother. In the
context of Section 6 of the Hindu Minority and Guardianship Act as well as
Section 19 of the Guardians and Wards Act, this Court had clarified that
“in all situations where the father is not in actual charge of the affairs
of the minor either because of his indifference or because of an agreement
between him and the mother of the minor (oral or written) and the minor is
in the exclusive care and custody of the mother or the father for any other
reason is unable to take care of the minor because of his physical and/or
mental incapacity, the mother can act as natural guardian of the minor and
all her actions would be valid even during the life time of the father who
would be deemed to be “absent” for the purposes of Section 6(a) of the HMG
Act and Section 19(b) of the GW Act.” This Court has construed the word
‘after’ in Section 6(a) of the Hindu Minority and Guardianship Act as
meaning “in the absence of – be it temporary or otherwise or total apathy
of the father towards the child or even inability of the father by reason
of ailment or otherwise.” Thus this Court interpreted the legislation
before it in a manner conducive to granting the mother, who was the only
involved parent, guardianship rights over the child.

15. In a case where one of the parents petitions the Court for
appointment as guardian of her child, we think that the provisions of
Section 11 would not be directly applicable. It seems to us that Section
11 applies to a situation where the guardianship of a child is sought by a
third party, thereby making it essential for the welfare of the child being
given in adoption to garner the views of child’s natural parents. The
views of an uninvolved father are not essential, in our opinion, to protect
the interests of a child born out of wedlock and being raised solely by
his/her mother. We may reiterate that even in the face of the express
terms of the statute, this Court had in Laxmi Kant Pandey directed that
notice should not be sent to the parents, as that was likely to jeopardize
the future and interest of the child who was being adopted. The sole
factor for consideration before us, therefore, is the welfare of the minor
child, regardless of the rights of the parents. We should not be
misunderstood as having given our imprimatur to an attempt by one of the
spouses to unilaterally seek custody of a child from the marriage behind
the back of other spouse. The apprehensions of Mr. Luthra, learned amicus
curiae, are accordingly addressed.

16. Section 11 is purely procedural; we see no harm or mischief in
relaxing its requirements to attain the intendment of the Act. Given that
the term “parent” is not defined in the Act, we interpret it, in the case
of illegitimate children whose sole caregiver is one of his/her parents, to
principally mean that parent alone. Guardianship or custody orders never
attain permanence or finality and can be questioned at any time, by any
person genuinely concerned for the minor child, if the child’s welfare is
in peril. The uninvolved parent is therefore not precluded from
approaching the Guardian Court to quash, vary or modify its orders if the
best interests of the child so indicate. There is thus no mandatory and
inflexible procedural requirement of notice to be served to the putative
father in connection with a guardianship or custody petition preferred by
the natural mother of the child of whom she is the sole caregiver.

17. Implicit in the notion and width of welfare of the child, as one of
its primary concomitants, is the right of the child to know the identity of
his or her parents. This right has now found unquestionable recognition in
the Convention on the Rights of the Child, which India has acceded to on
11th November, 1992. This Convention pointedly makes mention, inter alia,
to the Universal Declaration of Human Rights. For facility of reference
the salient provisions are reproduced -

Article 1

For the purposes of the present Convention, a child means every human being
below the age of eighteen years unless under the law applicable to the
child, majority is attained earlier.

Article 3

1. In all actions concerning children, whether undertaken by public or
private social welfare institutions, courts of law, administrative
authorities or legislative bodies, the best interests of the child shall be
a primary consideration.

2. States Parties undertake to ensure the child such protection and care as
is necessary for his or her well-being, taking into account the rights and
duties of his or her parents, legal guardians, or other individuals legally
responsible for him or her, and, to this end, shall take all appropriate
legislative and administrative measures.

3. States Parties shall ensure that the institutions, services and
facilities responsible for the care or protection of children shall conform
with the standards established by competent authorities, particularly in
the areas of safety, health, in the number and suitability of their staff,
as well as competent supervision.

Article 7

1. The child shall be registered immediately after birth and shall have the
right from birth to a name, the right to acquire a nationality and, as far
as possible, the right to know and be cared for by his or her parents.

Article 9

1. States Parties shall ensure that a child shall not be separated from his
or her parents against their will, except when competent authorities
subject to judicial review determine, in accordance with applicable law and
procedures, that such separation is necessary for the best interests of the
child. Such determination may be necessary in a particular case such as one
involving abuse or neglect of the child by the parents, or one where the
parents are living separately and a decision must be made as to the child's
place of residence.

2. In any proceedings pursuant to paragraph 1 of the present article, all
interested parties shall be given an opportunity to participate in the
proceedings and make their views known.

3. States Parties shall respect the right of the child who is separated
from one or both parents to maintain personal relations and direct contact
with both parents on a regular basis, except if it is contrary to the
child's best interests.

Article 12

1. States Parties shall assure to the child who is capable of forming his
or her own views the right to express those views freely in all matters
affecting the child, the views of the child being given due weight in
accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the
opportunity to be heard in any judicial and administrative proceedings
affecting the child, either directly, or through a representative or an
appropriate body, in a manner consistent with the procedural rules of
national law.

Article 18

1. States Parties shall use their best efforts to ensure recognition of the
principle that both parents have common responsibilities for the upbringing
and development of the child. Parents or, as the case may be, legal
guardians, have the primary responsibility for the upbringing and
development of the child. The best interests of the child will be their
basic concern.

Article 21

States Parties that recognize and/or permit the system of adoption shall
ensure that the best interests of the child shall be the paramount
consideration and they shall:

(a) Ensure that the adoption of a child is authorized only by competent
authorities who determine, in accordance with applicable law and procedures
and on the basis of all pertinent and reliable information, that the
adoption is permissible in view of the child's status concerning parents,
relatives and legal guardians and that, if required, the persons concerned
have given their informed consent to the adoption on the basis of such
counselling as may be necessary;

Article 27

2. The parent(s) or others responsible for the child have the primary
responsibility to secure, within their abilities and financial capacities,
the conditions of living necessary for the child's development.

4. States Parties shall take all appropriate measures to secure the
recovery of maintenance for the child from the parents or other persons
having financial responsibility for the child, both within the State Party
and from abroad. In particular, where the person having financial
responsibility for the child lives in a State different from that of the
child, States Parties shall promote the accession to international
agreements or the conclusion of such agreements, as well as the making of
other appropriate arrangements.

18. In Laxmi Kant Pandey, this Court duly noted the provisions of the
Convention on the Rights of the Child, but in the general context of
adoption of children and, in particular, regarding the necessity to involve
the natural parents in the consequent guardianship/custody proceedings.
The provisions of the Convention which we have extracted indeed reiterate
the settled legal position that the welfare of the child is of paramount
consideration vis a vis the perceived rights of parents not only so far as
the law in India is concerned, but preponderantly in all jurisdictions
across the globe. We are mindful of the fact that we are presently not
confronted with a custody conflict and, therefore, there is no reason
whatsoever to even contemplate the competence or otherwise of the Appellant
as custodian of the interests and welfare of her child. However, we would
be loathe to lose perspective of our parens patriae obligations, and in
that regard we need to ensure that the child’s right to know the identity
of his parents is not vitiated, undermined, compromised or jeopardised.
In order to secure and safeguard this right, we have interviewed the
Appellant and impressed upon her the need to disclose the name of the
father to her son. She has disclosed his name, along with some particulars
to us; she states that she has no further information about him. These
particulars have been placed in an envelope and duly sealed, and may be
read only pursuant to a specific direction of this Court.

19. We are greatly perturbed by the fact that the Appellant has not
obtained a Birth Certificate for her son who is nearly five years old.
This is bound to create problems for the child in the future. In this
regard, the Appellant has not sought any relief either before us or before
any of the Courts below. It is a misplaced assumption in the law as it is
presently perceived that the issuance of a Birth Certificate would be a
logical corollary to the Appellant succeeding in her guardianship petition.
It may be recalled that owing to curial fiat, it is no longer necessary to
state the name of the father in applications seeking admission of children
to school, as well as for obtaining a passport for a minor child.
However, in both these cases, it may still remain necessary to furnish a
Birth Certificate. The law is dynamic and is expected to diligently keep
pace with time and the legal conundrums and enigmas it presents. There is
no gainsaying that the identity of the mother is never in doubt.
Accordingly, we direct that if a single parent/unwed mother applies for the
issuance of a Birth Certificate for a child born from her womb, the
Authorities concerned may only require her to furnish an affidavit to this
effect, and must thereupon issue the Birth Certificate, unless there is a
Court direction to the contrary. Trite though it is, yet we emphasise
that it is the responsibility of the State to ensure that no citizen
suffers any inconvenience or disadvantage merely because the parents fail
or neglect to register the birth. Nay, it is the duty of the State to take
requisite steps for recording every birth of every citizen. To remove any
possible doubt, the direction pertaining to issuance of the Birth
Certificate is intendedly not restricted to the circumstances or the
parties before us.

20. We think it necessary to also underscore the fact that the Guardian
Court as well as the High Court which was in seisin of the Appeal ought not
to have lost sight of the fact that they had been called upon to discharge
their parens patriae jurisdiction. Upon a guardianship petition being laid
before the Court, the concerned child ceases to be in the exclusive custody
of the parents; thereafter, until the attainment of majority, the child
continues in curial curatorship. Having received knowledge of a situation
that vitally affected the future and welfare of a child, the Courts below
could be seen as having been derelict in their duty in merely dismissing
the petition without considering all the problems, complexities and
complications concerning the child brought within its portals.

21. The Appeal is therefore allowed. The Guardian Court is directed to
recall the dismissal order passed by it and thereafter consider the
Appellant’s application for guardianship expeditiously without requiring
notice to be given to the putative father of the child.

………………………………..J.
(VIKRAMAJIT SEN)

………………………………..J.
(ABHAY MANOHAR SAPRE)
New Delhi
July 06, 2015.

12. This Court in the case of Mahadeo S/o Kerba Maske Vs. State of Maharashtra and Anr., (2013) 14 SCC 637, has held that Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, is applicable in determining the age of the victim of rape. Rule 12(3) reads as under: “Rule 12(3): In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining – (i) the matriculation or equivalent certificates, if available; and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat; (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.” 13. This Court further held in paragraph 12 of Mahadeo S/o Kerba Maske (supra) as under: “Under rule 12(3)(b), it is specifically provided that only in the absence of alternative methods described under Rule 12(3)(a)(i) to (iii), the medical opinion can be sought for. In the light of such a statutory rule prevailing for ascertainment of the age of the juvenile in our considered opinion, the same yardstick can be rightly followed by the courts for the purpose of the ascertaining the age of a victim as well.” (Emphasis supplied) This Court therefore relied on the certificates issued by the school in determining the age of the prosecutrix. In paragraph 13, this Court observed: “In light of our above reasoning, in the case on hand, there were certificates issued by the school in which the proseuctrix did her V standard and in the school leaving certificate issued by the school under Exhibit 54, the date of birth has been clearly noted as 20.05.1990 and this document was also proved by PW 11. Apart from that the transfer certificate as well as the admission form maintained by the Primary School, Latur, where the prosecutrix had her initial education, also confirmed the date of birth as 20.05.1990. the reliance placed upon the said evidence by the Courts below to arrive at the age of the prosecutrix to hold that the prosecutrix was below 18 years of age at the time of occurrence was perfectly justified and we do not find any grounds to interfere with the same.” 14. In the present case, we have before us two documents which support the case of the prosecutrix that she was below 16 years of age at the time the incident took place. These documents can be used for ascertaining the age of the prosecutrix as per Rule 12(3)(b). The difference of two days in the dates, in our considered view, is immaterial and just on this minor discrepancy, the evidence in the form of Exts. P/5 and P/6 cannot be discarded. Therefore, the Trial Court was correct in relying on the documents.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 442 OF 2010

State of Madhya Pradesh … Appellant
:Versus:
Anoop Singh … Respondent

J U D G M E N T
Pinaki Chandra Ghose

1. The present Criminal Appeal has been preferred against the judgment
and order dated 10.07.2008 passed by the High Court of Madhya Pradesh at
Jabalpur in Criminal Appeal No.924 of 2006, whereby the High Court set
aside the judgment of conviction and order of sentence passed by the
learned Trial Court and acquitted the accused from all the charges levelled
against him.

2. The facts of the present matter are that on 03.01.2003, at about
10:30 A.M. the prosecutrix was going to school along with her sister. On
realizing that she had left behind her practical note book, she returned
back and after taking the said note book she once again headed towards the
school. When she reached near Tar Badi (wire fencing) near Hawai Patti,
there was an Ambassador car standing there and as alleged, the accused
respondent came out of the car, pulled the prosecutrix inside the car and
forced her to smell something, as a result of which the prosecutrix became
unconscious. As alleged by the prosecution, the prosecutrix was taken to
some unknown place thereafter.

3. On regaining consciousness, the prosecutrix felt pain in her private
parts. On the same day, she was admitted in the District Hospital, Satna
in an unconscious condition and information about the incident was given to
Laxmikant Sharma (P.W.8), the uncle of the prosecutrix. On 10.01.2003, the
prosecutrix was discharged from the Hospital and sent back to her home
where she narrated the incident and thereafter an F.I.R was lodged. During
the course of investigation, the prosecutrix was sent for medical
examination and her clothes were seized and slides were prepared. After
receipt of the medical report, F.I.R was registered and site map of the
spot was prepared. The Investigating Officer seized various articles which
included the prosecutrix’s birth certificate and certificate of the Middle
School Examination, 2001. Along with that the relevant page (page No. 20)
of the register of the U.S.A Hotel was also seized. After due
investigation a charge-sheet was filed against the respondent for offences
under Sections 363, 366 and 376 of the Indian Penal Code, 1860 (“I.P.C.”)
and the statements of the prosecution witnesses were recorded.

4. On 27.03.2003, the Judicial Magistrate, First Class Satna registered
the Criminal Case No.116/2003 and passed the committal order. Accordingly,
the case was transferred and was received by the Upper District Sessions
Judge-III, Satna for trial.

5. The IIIrd Additional Sessions Judge, Satna, by his order dated
24.04.2006 passed in Special Case No.123/2003, convicted the accused under
Sections 363, 366 and 376 of I.P.C. and held that all the offences against
the respondent were proved beyond reasonable doubt. The respondent was
awarded 7 years’ rigorous imprisonment and fine of Rs.500/- for the crime
under Section 363 I.P.C., 10 years’ rigorous imprisonment and fine of
Rs.1000/- for the crime under Section 366 I.P.C., and 10 years’ rigorous
imprisonment and fine of Rs.1000/- for the crime under Section 376 I.P.C.
with default clauses. All the substantive sentences were directed to run
concurrently.

6. Aggrieved by the aforesaid judgment and order passed by the IIIrd
Additional Sessions Judge, Satna, the respondent preferred an appeal under
Section 374(2) of Cr.P.C. before the High Court of Madhya Pradesh at
Jabalpur, which was numbered as Criminal Appeal No.924 of 2006. The learned
Single Judge of the High Court, by impugned judgment and order dated
10.07.2008, set aside the judgment and order of conviction passed by the
Trial Court against the respondent. The High Court ruled that the decision
of the Trial Court was not sustainable solely on the ground that the
prosecution had failed to prove the fact that the girl was less than 16
years of age at the time of the incident. The reasons that weighed heavily
with the ruling of the High Court were that, either the public prosecutor
or P.W.7 Pramod Kumar Sharma (father of the prosecutrix) tried to file Ext.
P/5 which was not part of the charge-sheet. Such type of evidence could not
be created by any person except the Investigation Officer. It was for the
prosecution to show that a particular document was taken on record during
investigation but could not be filed. The prosecution could not create any
new evidence which was not part of the investigation. Ext. P/5 and Ext. P/6
have variation in the date of birth of the prosecutrix. In certificate
Ext.P/5 the date of birth was disclosed as 29.8.1987, whereas in
certificate Ext.P/6 it has been disclosed as 27.8.1987. The High Court
found this sufficient to disbelieve that the prosecutrix was below 16 years
of age at the time of the incident. The High Court relied on the statement
of PW-11 Dr. A.K. Saraf who took the X-ray of the prosecutrix and on the
basis of the ossification test, came to the conclusion that the age of the
prosecutrix was more than 15 years but less than 18 years. Considering this
the High Court presumed that the girl was more than 18 years of age at the
time of the incident. The last ground taken by the High Court was that the
girl was a consenting party and was more than 18 years of age at the time
of the incident and thus, no offence against the accused has been proved.

7. We have heard the learned counsel appearing for the parties.

8. Before us, learned counsel for the State of Madhya Pradesh has raised
the contention that the High Court gave undue importance to the difference
of two days in the date of birth of the prosecutrix as per the birth
certificate and the certificate of the Middle School Examination 2001, and
erroneously held that this difference is sufficient to disbelieve the age
of the prosecutrix. Further, the High Court ought to have appreciated the
law laid down by this Court that regarding the determination of age, the
birth certificate is the determining evidence.

9. The learned counsel appearing for the respondent, on the other hand,
argued that the prosecution story is concocted as her evidence is not
corroborated by the evidence of P.W.9 Jagdish Gupta, the Manager of the
Hotel. Further, the respondent states that the prosecutrix did not give any
resistance and there were no injury marks, which make it clear that she was
a consenting party. In addition, the learned counsel argued that the
prosecution did not explain as to why the Investigating Officer did not
seize the birth certificate during the course of investigation.

10. We believe that the present case involves only one issue for this
Court to be considered, which is regarding the determination of the age of
the prosecutrix.

11. In the present case, the central question is whether the prosecutrix
was below 16 years of age at the time of the incident. The prosecution in
support of their case adduced two certificates, which were the birth
certificate and the middle school certificate. The date of birth of the
prosecutrix has been shown as 29.08.1987 in the Birth Certificate (Ext.
P/5), while the date of birth is shown as 27.08.1987 in the Middle School
Examination Certificate. There is a difference of just two days in the
dates mentioned in the abovementioned Exhibits. The Trial Court has rightly
observed that the birth certificate Ext. P/5 clearly shows that the
registration regarding the birth was made on 30.10.1987 and keeping in view
the fact that registration was made within 2 months of the birth, it could
not be guessed that the prosecutrix was shown as under-aged in view of the
possibility of the incident in question. We are of the view that the
discrepancy of two days in the two documents adduced by the prosecution is
immaterial and the High Court was wrong in presuming that the documents
could not be relied upon in determining the age of the prosecutrix.

12. This Court in the case of Mahadeo S/o Kerba Maske Vs. State of
Maharashtra and Anr., (2013) 14 SCC 637, has held that Rule 12(3) of the
Juvenile Justice (Care and Protection of Children) Rules, 2007, is
applicable in determining the age of the victim of rape. Rule 12(3) reads
as under:

“Rule 12(3): In every case concerning a child or juvenile in conflict with
law, the age determination inquiry shall be conducted by the court or the
Board or, as the case may be, the Committee by seeking evidence by
obtaining –

(i) the matriculation or equivalent certificates, if available; and in the
absence whereof;

(ii) the date of birth certificate from the school (other than a play
school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal authority
or a panchayat;

(b) and only in the absence of either (i), (ii) or (iii) of clause (a)
above, the medical opinion will be sought from a duly constituted Medical
Board, which will declare the age of the juvenile or child. In case exact
assessment of the age cannot be done, the Court or the Board or, as the
case may be, the Committee, for the reasons to be recorded by them, may, if
considered necessary, give benefit to the child or juvenile by considering
his/her age on lower side within the margin of one year.
and, while passing orders in such case shall, after taking into
consideration such evidence as may be available, or the medical opinion, as
the case may be, record a finding in respect of his age and either of the
evidence specified in any of the clauses (a)(i), (ii), (iii) or in the
absence whereof, clause (b) shall be the conclusive proof of the age as
regards such child or the juvenile in conflict with law.”

13. This Court further held in paragraph 12 of Mahadeo S/o Kerba Maske
(supra) as under:

“Under rule 12(3)(b), it is specifically provided that only in the absence
of alternative methods described under Rule 12(3)(a)(i) to (iii), the
medical opinion can be sought for. In the light of such a statutory rule
prevailing for ascertainment of the age of the juvenile in our considered
opinion, the same yardstick can be rightly followed by the courts for the
purpose of the ascertaining the age of a victim as well.”
(Emphasis supplied)
This Court therefore relied on the certificates issued by the school in
determining the age of the prosecutrix. In paragraph 13, this Court
observed:
“In light of our above reasoning, in the case on hand, there were
certificates issued by the school in which the proseuctrix did her V
standard and in the school leaving certificate issued by the school under
Exhibit 54, the date of birth has been clearly noted as 20.05.1990 and this
document was also proved by PW 11. Apart from that the transfer certificate
as well as the admission form maintained by the Primary School, Latur,
where the prosecutrix had her initial education, also confirmed the date of
birth as 20.05.1990. the reliance placed upon the said evidence by the
Courts below to arrive at the age of the prosecutrix to hold that the
prosecutrix was below 18 years of age at the time of occurrence was
perfectly justified and we do not find any grounds to interfere with the
same.”

14. In the present case, we have before us two documents which support
the case of the prosecutrix that she was below 16 years of age at the time
the incident took place. These documents can be used for ascertaining the
age of the prosecutrix as per Rule 12(3)(b). The difference of two days in
the dates, in our considered view, is immaterial and just on this minor
discrepancy, the evidence in the form of Exts. P/5 and P/6 cannot be
discarded. Therefore, the Trial Court was correct in relying on the
documents.

15. The High Court also relied on the statement of PW-11 Dr. A.K. Saraf
who took the X-ray of the prosecutrix and on the basis of the ossification
test, came to the conclusion that the age of the prosecutrix was more than
15 years but less than 18 years. Considering this the High Court presumed
that the girl was more than 18 years of age at the time of the incident.
With respect to this finding of the High Court, we are of the opinion that
the High Court should have relied firstly on the documents as stipulated
under Rule 12(3)(b) and only in the absence, the medical opinion should
have been sought. We find that the Trial Court has also dealt with this
aspect of the ossification test. The Trial Court noted that the respondent
had cited Lakhan Lal Vs. State of M.P., 2004 Cri.L.J. 3962, wherein the
High Court of Madhya Pradesh said that where the doctor having examined the
prosecutrix and found her to be below 18½ years, then keeping in mind the
variation of two years, the accused should be given the benefit of doubt.
Thereafter, the Trial Court rightly held that in the present case the
ossification test is not the sole criteria for determination of the date of
birth of the prosecutrix as her certificate of birth and also the
certificate of her medical examination had been enclosed.

16. Thus, keeping in view the medical examination reports, the statements
of the prosecution witnesses which inspire confidence and the certificates
proving the age of the prosecutrix to be below 16 years of age on the date
of the incident, we set aside the impugned judgment passed by the High
Court and uphold the judgment and order dated 24.04.2006 passed by the
IIIrd Additional Sessions Judge, Satna in Special Case No.123/2003.

17. Accordingly, this appeal is allowed. We direct that the respondent
shall be taken into custody forthwith to serve out the sentence.

……………………………..J (Pinaki Chandra Ghose)

……………………………..J (Uday Umesh Lalit)
New Delhi;
July 03, 2015.
ITEM NO.1C COURT NO.11 SECTION IIA
(For judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

Criminal Appeal No(s). 442/2010

STATE OF M.P. Appellant(s)

VERSUS

ANOOP SINGH Respondent(s)

Date : 03/07/2015 This appeal was called on for pronouncement of
judgment today.

For Appellant(s) Mr. Mishra Saurabh, AOR

For Respondent(s) Mr. M.P. Singh, Adv.
Mr. Rajeev Kumar Bansal, AOR

Hon'ble Mr. Justice Pinaki Chandra Ghose pronounced the reportable
judgment of the Bench comprising His Lordship and Hon'ble Mr. Justice Uday
Umesh Lalit.
The appeal is allowed and the respondent shall be taken into custody
forthwith to serve out the sentence in terms of the signed reportable
judgment.

(R.NATARAJAN) (SNEH LATA SHARMA)
Court Master Court Master
(Signed reportable judgment is placed on the file)

We have heard the learned counsel for both the sides and also analysed the evidence in this case. We find that there are inherent inconsistencies in the case of the prosecution. The testimonies of two alleged eye witnesses, PW2 & PW3, are irreconcilable. PW2, the uncle of the prosecutrix says that he saw the accused sitting over the prosecutrix with his private part inside the private part of the prosecutrix when he was 25 feet away. We find this statement incredible for the reason that he could not have made such detailed observation from such a distance. Also, according to PW2, he had left the prosecutrix and PW3 on the road when he had gone to call PW4, while PW3 has completely contrary version where she states that she had gone to call PW4 leaving the prosecutrix with PW2. This creates a serious doubt as to who out of PW2 or PW3 stayed with the prosecutrix and who went to call PW4. Also PW2 stated that when he came with PW4, they found prosecutrix and PW3 on the road where PW2 had left them. However, PW4 states that it was PW3 who had come to inform him and he came with her to find the prosecutrix sitting alone near a tree next to the pond. In this way the three witnesses have three different versions. Moreover, both PW2 and PW3 have said that they saw accused inflicting knife blows at the prosecutrix on her thigh and blood oozed out on that account. This is completely unsupported by the medical evidence; no such injury by knife was found on the thigh of the prosecutrix. 9. We may note that PW3 had told about the accused inflicting knife blows in her examination in chief itself, and therefore, one cannot say she said so because of being misled by the cross-examiner. This is a major inconsistency in the testimony of both PW2 and PW3 which makes their statement unworthy of credit. Furthermore, the conduct of PW2 seems to be uncharacteristic of an uncle as he makes no mention of his raising any alarm or running towards the accused to apprehend him on seeing that the accused was sexually assaulting the prosecutrix. Also the medical evidence of Dr. Mrs. F.A. Qureshi on analysis seems to be not wholly supportive to the case of the prosecution. Dr. Quershi has accepted that if the sexual intercourse has happened in last 24 hours, then on touching the hymen fresh blood must necessarily ooze out. In saying so, she has approved what is written in the Modi's book on Medical Jurisprudence. However, she testifies that when she touched the hymen of the prosecutrix, no fresh blood oozed out. This may be contrasted to the fact that allegedly, the medical examination of the prosecutrix was conducted within 12 hours of the alleged incident of rape. Had that been so, the prosecutrix must have bleeded fresh during the medical examination, but that did not happen. This shows that, probably, the sexual intercourse was done more than 24 hours back. In fact, Dr. Qureshi in her cross-examination has said that rupture of hymen was at the most 2-3 days prior to the medical examination. If this be so, the entire story of the prosecution would go out of the window. Further, there is another inconsistency to be found from the deposition of Dr. Qureshi. She has said in her statement that the girl she had examined was a healthy and 'normal' one. However, there is no dispute that the prosecutrix was far from normal as she was suffering from some mental disorder. Even when she was examined in Court, she was found to be of unsound mind. It would be highly unlikely and assumptuous on our part to say that even after conducting the whole examination of the prosecutrix, Dr. Qureshi may not have come to know of the mental disorder of the prosecutrix. 10. In view of the above reasoning, we are of the opinion that the case of the prosecution suffers from inherent inconsistencies and flaws. We do not find any merit in this appeal. Accordingly, this appeal is dismissed.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2244 OF 2009

STATE OF MADHYA PRADESH ...APPELLANT
:Versus:
KESHAR SINGH ...RESPONDENT

J U D G M E N T

Pinaki Chandra Ghose, J.

1. In the present case, there is concurrent decision of acquittal of the
accused by the Sessions Court as well as the High Court of Madhya Pradesh.
The offence alleged to have been committed in this case is rape, punishable
under Section 376 of Indian Penal Code, 1860 (“IPC”, for short).

2. The story of the prosecution is that the prosecutrix is a minor of
unsound mind. On 09-11-1990 at around 8:30 a.m. when prosecutrix and her
younger sister Nirmala (PW3) were going to their field with food for their
father, the accused came and caught hold of the prosecutrix. He took her to
some distance near a pond and committed rape on her. Prosecutrix's private
parts had bled and the petticoat was blood-stained. On seeing this, PW3
Nirmala rushed to her father Gopal (PW4) and informed him of the incident.
Then PW4 came to the prosecutrix who told him with the help of sign
language (since she cannot speak properly) that the accused committed rape
on her. He noticed that there were blood stains on her petticoat near the
private parts. Thereafter, PW4 took the prosecutrix to police station and
lodged an FIR at 11:30 a.m. on the same day. Medical examination of the
prosecutrix was conducted which revealed that the hymen was ruptured and
the examining doctor Dr. (Mrs.) F.A. Qureshi opined that the prosecutrix
was subjected to sexual intercourse. During investigation the accused was
arrested on 21-11-1990 and was medically examined. He was found to be
capable of performing sexual intercourse. The police filed charge-sheet
against the accused with the charge of rape under Section 376 of IPC.

3. The prosecution produced PW1 Dr. Smt. F.A. Qureshi, PW2 Manohar Singh
(uncle of the prosecutrix), PW3 Nirmala (younger sister of the
prosecutrix), PW4 Gopal (father of the prosecutrix) and PW5 R.K. Mishra
(Investigating Officer). Other witnesses were formal witnesses. It is
important to note that the prosecutrix was also produced as a witness,
being PW6, but it was found that she was not capable of understanding what
was asked and made irrelevant answers. In the medical examination of the
prosecutrix also, she is found to be 12-16 years old with low I.Q.

4. PW1 has deposed in her categorical finding that the private parts of
the prosecutrix were injured, her hymen was ruptured and that she was
subjected to sexual intercourse. The major eye witness in the present case
is PW3 who is also a minor girl of 10 years. However, in her examination
she was found to be competent witness as she answered the preliminary
questions correctly and with understanding. She has in her examination-in-
chief brought out the story that the accused, whom she knows, had caught
her sister and taken her near the pond. According to her, he threw the
prosecutrix on the ground, opened his pyjama and sat on her and gave the
prosecutrix some money, which was thrown away by her. The witness further
stated in her deposition that the accused filled the mouth of the
prosecutrix with lungi, raised her petticoat and committed sexual
intercourse and that the private part of the prosecutrix bled. She also
stated that her uncle Manohar Lal arrived there on whose asking she went to
her father in a car and told him about the incident. She has also stated
that the accused had inflicted knife blows on the thigh of the prosecutrix.
In the cross-examination, we find that the counsel for defence has asked
the child witness (PW3) many leading questions, the implication of which
the child witness would never be able to understand. Therefore, she has
answered most of the questions with a mechanical one word answer “Yes”,
without any elaboration. In this way, the defence elicited from the child
witness the statements to the effect that the accused had given knife blows
on the face, neck and thigh of the prosecutrix and that it was all these
parts of the prosecutrix from where blood oozed out. In the same way she
admitted the suggestion that she was read out a statement by police outside
the Court and that she has made the same statement in the Court.

5. PW2 Manohar Lal (uncle of the prosecutrix) has also stated in his
deposition that he saw the accused sitting over the prosecutrix and having
his private part inserted in the private parts of the prosecutrix. He says
on his coming to the place, the accused fled away. He further states that
he had seen the accused giving knife blows to the prosecutrix as a result
of which the thigh of the prosecutrix started bleeding. However, he also
states that private parts of the prosecutrix were also bleeding. He
further states that while leaving the two sisters on the road, he went to
call the father of the prosecutrix (PW4) and when he came back along with
PW4, he found them sitting where he had left them.

6. PW5 has corroborated the version of PW3 and said that he was informed
of the incident by PW3 and he went to the prosecutrix where he found her
petticoat blood-stained. He has deposed that his daughter (prosecutrix) had
told him in sign language that the accused Keshar Singh had committed rape
on her. According to this witness when he reached the place of incident,
he found the prosecutrix sitting alone near a khankri tree and not on the
road. He has further stated that he did not see the blood oozing out of
thigh or private parts of the prosecutrix as, being her father, he could
not examine her private parts but he confirms that the petticoat was blood
stained.

7. In view of the above evidence, both the Sessions Court and the High
Court found inherent inconsistencies in the statements of the prosecution
witnesses. While PW2 and PW3 speak about knife blows being inflicted on
thighs and blood oozing from there, the medical evidence does not support
this theory. Further, PW3 said that she went to call her father PW4, while
PW2 has said he had gone to call PW4. PW2 has also stated that when PW4
came along with him, they found the prosecutrix on the road, while PW4 has
stated that he found the prosecutrix near khankri tree near a pond. Thus,
the Sessions Court has rightly not considered the statement of the
prosecutrix as she was found to be incompetent to understand the questions.
In view of the above-mentioned inconsistencies, the Sessions Court found
that although it is proved that rape was committed with the prosecutrix,
but that it was done by the accused was not proved.

8. We have heard the learned counsel for both the sides and also
analysed the evidence in this case. We find that there are inherent
inconsistencies in the case of the prosecution. The testimonies of two
alleged eye witnesses, PW2 & PW3, are irreconcilable. PW2, the uncle of the
prosecutrix says that he saw the accused sitting over the prosecutrix with
his private part inside the private part of the prosecutrix when he was 25
feet away. We find this statement incredible for the reason that he could
not have made such detailed observation from such a distance. Also,
according to PW2, he had left the prosecutrix and PW3 on the road when he
had gone to call PW4, while PW3 has completely contrary version where she
states that she had gone to call PW4 leaving the prosecutrix with PW2. This
creates a serious doubt as to who out of PW2 or PW3 stayed with the
prosecutrix and who went to call PW4. Also PW2 stated that when he came
with PW4, they found prosecutrix and PW3 on the road where PW2 had left
them. However, PW4 states that it was PW3 who had come to inform him and he
came with her to find the prosecutrix sitting alone near a tree next to the
pond. In this way the three witnesses have three different versions.
Moreover, both PW2 and PW3 have said that they saw accused inflicting knife
blows at the prosecutrix on her thigh and blood oozed out on that account.
This is completely unsupported by the medical evidence; no such injury by
knife was found on the thigh of the prosecutrix.

9. We may note that PW3 had told about the accused inflicting knife
blows in her examination in chief itself, and therefore, one cannot say she
said so because of being misled by the cross-examiner. This is a major
inconsistency in the testimony of both PW2 and PW3 which makes their
statement unworthy of credit. Furthermore, the conduct of PW2 seems to be
uncharacteristic of an uncle as he makes no mention of his raising any
alarm or running towards the accused to apprehend him on seeing that the
accused was sexually assaulting the prosecutrix. Also the medical evidence
of Dr. Mrs. F.A. Qureshi on analysis seems to be not wholly supportive to
the case of the prosecution. Dr. Quershi has accepted that if the sexual
intercourse has happened in last 24 hours, then on touching the hymen fresh
blood must necessarily ooze out. In saying so, she has approved what is
written in the Modi's book on Medical Jurisprudence. However, she testifies
that when she touched the hymen of the prosecutrix, no fresh blood oozed
out. This may be contrasted to the fact that allegedly, the medical
examination of the prosecutrix was conducted within 12 hours of the alleged
incident of rape. Had that been so, the prosecutrix must have bleeded fresh
during the medical examination, but that did not happen. This shows that,
probably, the sexual intercourse was done more than 24 hours back. In
fact, Dr. Qureshi in her cross-examination has said that rupture of hymen
was at the most 2-3 days prior to the medical examination. If this be so,
the entire story of the prosecution would go out of the window. Further,
there is another inconsistency to be found from the deposition of Dr.
Qureshi. She has said in her statement that the girl she had examined was a
healthy and 'normal' one. However, there is no dispute that the prosecutrix
was far from normal as she was suffering from some mental disorder. Even
when she was examined in Court, she was found to be of unsound mind. It
would be highly unlikely and assumptuous on our part to say that even after
conducting the whole examination of the prosecutrix, Dr. Qureshi may not
have come to know of the mental disorder of the prosecutrix.

10. In view of the above reasoning, we are of the opinion that the case
of the prosecution suffers from inherent inconsistencies and flaws. We do
not find any merit in this appeal. Accordingly, this appeal is dismissed.

……………………………..J
(Pinaki Chandra Ghose)

……………………………..J
(Uday Umesh Lalit)
New Delhi;
July 03, 2015.
ITEM NO.1B COURT NO.11 SECTION IIA
(For judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

Criminal Appeal No(s). 2244/2009

STATE OF M.P. Appellant(s)

VERSUS

KESHAR SINGH Respondent(s)

Date : 03/07/2015 This appeal was called on for pronouncement of
judgment today.

For Appellant(s) Ms. Vibha Datta Makhija, AOR (NP)

For Respondent(s) Mr. Irshad Ahmad, AOR

Hon'ble Mr. Justice Pinaki Chandra Ghose pronounced the reportable
judgment of the Bench comprising His Lordship and Hon'ble Mr. Justice Uday
Umesh Lalit.
The appeal is dismissed in terms of the signed reportable judgment.

(R.NATARAJAN) (SNEH LATA SHARMA)
Court Master Court Master
(Signed reportable judgment is placed on the file)

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Thursday, July 9, 2015