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2017 (3) TMI 1780
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....hether by such act, any illegality was committed. The said reference was registered as Complaint No. 773 of 2013 in the office of the Lokayukta, Haryana. 3. Acting on the reference made by the Chief Secretary, the office of the Lokayukta issued a public notice requesting the public in general to send any such material including Video Compact Disc (VCD) connected with the subject in issue. Apart from the public notice, communications were sent to various departments of the Government, television channels and newspapers for furnishing all materials to find out the allegations of corruption against the persons who have been named in the complaint. 4. As the facts would unfold, the Lokayukta, Haryana, issued notice to the appellant in exercise of power under Section 14 of the Act to offer his explanation. In pursuance of the said communication, the appellant filed a reply and the Lokayukta granted him time to place on record his evidence in the form of an affidavit. When the matter stood thus, on 16.01.2014, two persons allegedly conducted a sting operation and filed their affidavits before the Lokayukta. The appellant, in the meantime, got the CD examined from M/s Truth La....
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....ed by the writ petitioner from private laboratory, the fresh report from Central Forensic Science Laboratory (CFSL) to quell the contradiction, the law relating to the admissibility of evidence of electronic record and, thereafter, it recorded its conclusion on the issues pertaining to the authenticity of the CD, credible information for bribery, direction for filing of complaint by the Lokayukta, the report of the Lokayukta, the imputations made against the petitioner, prima facie proof, the jurisdiction of the Lokayukta to cause an inquiry and, ultimately, came to hold as follows:­ "I have undertaken this examination only to conclude all the issues which were urged before me. The observations as regards the untenability invoking the provision of Section 9 does not obtain relevance to us, for, we have already found the report to be seriously flawed in every respect both as regards the competence of the Lokayukta to order a registration of a complaint after he found the reference in the negative that there was no case made for allegations of corruption and that also the evidence of CD which was taken to be the basis for a further investigation itself could not be....
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....ad exercised criminal jurisdiction. He has placed reliance on certain authorities to which we shall refer to at the relevant place in the course of our deliberations. 11. Mr. Sanjay Kumar Visen, learned counsel appearing for the respondent State, resisting the aforesaid submission, would contend that the writ petition was registered as a civil writ petition for the purpose of issuing a writ of certiorari and the exercise of jurisdiction by the High Court is civil in nature and, therefore, the jurisdiction exercised is civil jurisdiction that invites interference in intra­court appeal. That apart, contends Mr. Visen that the exercise of power of the learned Single Judge is strictly under Article 226 of the Constitution of India and, hence, an intra­court appeal deserved to be entertained by the Division Bench. It is further submitted by him that the Lokayukta is a quasijudicial body and when, at its instance, action is taken for inquiry, it has to come within the ambit and scope of civil jurisdiction and not criminal jurisdiction. Learned counsel for the State has stressed on the status of Lokayukta and for that matter has commended us to the authority in Just....
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....the powers and functions of Upa­Lokayukta, it has been held that:­ "105. Section 14 of the Act enables the UpaLokayukta to prosecute a public servant and if such an action is taken, sanction to prosecute the public servant shall be deemed to have been granted by the appropriate authority." xxxxx xxxxx "107. The broad spectrum of functions, powers, duties and responsibilities of the Upa­Lokayukta, as statutorily prescribed, clearly bring out that not only does he perform quasi­judicial functions, as contrasted with purely administrative or executive functions, but that the Upa­Lokayukta is more than an investigator or an enquiry officer. At the same time, notwithstanding his status, he is not placed on the pedestal of a judicial authority rendering a binding decision. He is placed somewhere in between an investigator and a judicial authority, having the elements of both. For want of a better expression, the office of an Upa­Lokayukta can only be described as a sui generis quasi­judicial authority." "108. ......The final decision rendered by the UpaLokayukta, called a report, may not bear the stamp of a judicial decision, as w....
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....tioning has to be given the same character and once they are clothed with such functioning and action taken by them is subject to challenge before the High Court under Article 226 of the Constitution seeking a writ of certiorari for quashment of the same, in that event, the adjudication has to be regarded as civil in nature. Elaborating further, he would submit that in the instant case, a civil writ was filed challenging the opinion and recommendation of the Lokayukta and, therefore, the jurisdiction sought to be exercised is under Article 226 of the Constitution of India and resultantly, the order passed by the learned Single Judge is amenable to correction in intra­court appeal. 18. The maze needs to be immediately cleared. In the instant case, we are really not concerned with the nature of the post held by Lokayukta or Upa­Lokayukta. We are also not concerned how the recommendation of the said authorities is to be challenged and what will be the procedure therefor. As has been held by this Court, neither the Lokayukta nor Upa­Lokayukta can direct implementation of his report, but it investigates and after investigation, if it is found....
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....h criminal jurisdiction. Clause 15 that provides for ordinary criminal jurisdiction of the High Court reads as under:­ "15. And We do further ordain that the High Court of Judicature at Lahore shall have ordinary original criminal jurisdiction in respect of all such persons within the Provinces of Punjab and Delhi as the Chief Court of the Punjab had such criminal jurisdiction over immediately before the publication of these presents." 22. Clauses 17 and 18, being pertinent, are extracted below:­ "17. And We do further ordain that the High Court of Judicature at Lahore shall have extraordinary original criminal jurisdiction over all persons residing in places within the jurisdiction of any Court subject to its superintendence, and shall have authority to try at its discretion any such persons brought before it on charges preferred by any magistrate or other officer specially empowered by the Government in that behalf. 18. And We do further ordain that there shall be no appeal to the High Court of Judicature at Lahore from any sentence or order passed or made by the Courts of original criminal jurisdiction which may be constituted by one o....
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.... judgment of a single Judge under cl. 10 of the Letters Patent to the High Court. It follows that, if the Act had not taken away the Letters Patent appeal, an appeal shall certainly lie from the judgment of the single Judge of the High Court." [underlining is ours] 24. From the aforesaid authority, two aspects are absolutely clear. First, where an appeal is not excluded against the judgment of the High Court of a Single Judge, an appeal would lie to the Division Bench and second, if the appropriate Legislature has expressly or by necessary implication not taken away a right of appeal, the appeal shall lie from the Single Judge under Clause 10 of the Letters Patent to the High Court. 25. In this context, reference to the Constitution Bench judgment in Jamshed N. Guzdar v. State of Maharashtra and others (2005) 2 SCC 591) would be apposite. In the said case, the controversy arose pertaining to the constitutional validity of the Bombay City Civil Court and Bombay Court of Small Causes (Enhancement of Pecuniary Jurisdiction and Amendment) Act, 1986 (Maharashtra Act 15 of 1987) (for short "the 1987 Act"), Maharashtra High Court (Hearing of Writ ....
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.... have taken that it was competent for the State Legislatures to pass law relating to general jurisdiction of the High Courts dealing with the topic "administration of justice" under Entry 11­A of List III. Assuming that incidentally the 1986 Act and the Adhiniyam touch upon the Letters Patent, the 1986 Act and the Adhiniyam cannot be declared either as unconstitutional or invalid applying doctrine of pith and substance having due regard to the discussion already made above while dealing with the legislative competence of the State in passing the 1987 Act." 27. On the aforesaid analysis, the Court set aside thejudgment of the Full Bench of the High Court of Madhya Pradesh and dismissed the writ petitions filed by others challenging the 1986 Act and the 1987 Act. Thus, it has been clearly held that the State Legislature has competence to amend the Letters Patent. 28. The purpose of referring to this judgment is that till a competent legislature takes away the power of the Letters Patent, the same can be exercised by the High Court. However, while exercising the power under the Letters Patent, it is imperative to see what is the nature of jurisdiction that has actually....
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....ivil law or by statute, and claims relief for breach thereof." 31. After so stating, the Court elucidated the nature of criminal proceeding and, in that regard, ruled thus:­ "A criminal proceeding on the other hand is ordinarily one in which if carried to its conclusion it may result in the imposition of sentences such as death, imprisonment, fine or forfeiture of property. It also includes proceedings in which in the larger interest of the State, orders to prevent apprehended breach of the peace, orders to bind down persons who are a danger to the maintenance of peace and order, or orders aimed at preventing vagrancy are contemplated to be passed." 32. Explicating the concept further, the Court opined that:­ "The character of the proceeding, in our judgment, depends not upon the nature of the tribunal which is invested with authority to grant relief but upon the nature of the right violated and the appropriate relief which may be claimed." 33. It further held that a civil proceeding is, therefore, one in which a person seeks to enforce by appropriate relief the alleged infringement of his civil rights against another person or the State, and whic....
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....itation as to the nature of the jurisdiction exercised by the Single Judge while passing his judgment, provided an appeal is not barred by any statute (for example, Section 100­A of the Code of Civil Procedure, 1908) and provided the conditions laid down by clause 15 itself are fulfilled. The conditions prescribed by clause 15 in this behalf are: (1) that it must be a judgment pursuant to Section 108 of the Government of India Act of 1915, and (2) it must not be a judgment falling within one of the excluded categories set out in clause 15." And again:­ "100. According to the Full Bench even were clause 15 to apply, an appeal would be barred by the express words of clause 15 because the nature of the jurisdiction under Articles 226 and 227 is the same inasmuch as it consists of granting the same relief, namely, scrutiny of records and control of subordinate courts and tribunals and, therefore, the exercise of jurisdiction under these articles would be covered by the expression "revisional jurisdiction" and "power of superintendence". We are afraid, the Full Bench has misunderstood the scope and effect of the powers conferred by these articles. These two art....
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....st the decision of the learned Single Judge was expressly barred. 37. In this context, a reference to a two­Judge Bench decision in Ashok K. Jha and others v. Garden Silk Mills Limited and another (2009) 10 SCC 584) would be profitable. The question that arose for consideration was whether an appeal under Clause 15 of the Letters Patent of the High Court of Bombay was maintainable from the judgment and order passed by the learned Single Judge in a special civil application. The controversy had arisen from the dispute raised before the Labour Court. The matter travelled through the Industrial Court in appeal which was challenged before the High Court under Articles 226 and 227 of the Constitution of India. While dealing with the issue of maintainability, the Court referred to Umaji Keshao Meshram (supra), Kishorilal v. Sales Officer, District Land Development Bank (2006) 7 SCC 496), State of Madhya Pradesh and others v. Visan Kumar Shiv Charan Lal (2008) 15 SCC 233) and Sushilabai Laxminarayan Mudliyar and others v. Nihalchand Waghajibhai Shaha and others (1993 Supp (1) SCC 11) and ultimately h....
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.... Mirajkar v. State of Maharashtra (AIR 1967 SC 1) wherein this Court came to the conclusion that "Certiorari does not lie to quash the judgments of inferior courts of civil jurisdiction." It adverted to the authority in Surya Dev Rai (supra) copiously and weighed it in the backdrop of other authorities and compared it with the English law principles and ruled that:­ "26. The Bench in Surya Dev Rai (supra) also observed in para 25 of its judgment that distinction between Articles 226 and 227 stood almost obliterated. In para 24 of the said judgment distinction in the two articles has been noted. In view thereof, observation that scope of Articles 226 and 227 was obliterated was not correct as rightly observed (2009) 5 SCC 616) by the referring Bench in para 32 quoted above. We make it clear that though despite the curtailment of revisional jurisdiction under Section 115 CPC by Act 46 of 1999, jurisdiction of the High Court under Article 227 remains unaffected, it has been wrongly assumed in certain quarters that the said jurisdiction has been expanded. Scope of Article 227 has been explained in several decisions including Waryam Singh v. Am....
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....sp;9 SCC 1) the Court was dealing with a batch of appeals that arose from the High Court of Gujarat as regards the maintainability of Letters Patent Appeal. The Court referred to the nine­Judge Bench decision in Naresh Shridhar Mirajkar (supra) and the three­Judge Bench decision in Radhey Shyam (supra) and ruled that a judicial order passed by the civil court can only be assailed and scrutinised under Article 227 of the Constitution and, hence, no intra­court appeal is maintainable. 44. As the controversy related to further two aspects, namely, whether the nomenclature of article is sufficient enough and further, whether a tribunal is a necessary party to the litigation, the two­Judge Bench proceeded to answer the same. In that context, the Court referred to the authorities in Lokmat Newspapers (P) Ltd. v. Shankarprasad (1999) 6 SCC 275) , Kishorilal (supra), Ashok K. Jha (supra) and Ramesh Chandra Sankla (supra) and opined that maintainability of a letters patent appeal would depend upon the pleadings in the writ petition, the nature and character of the order passed by the learned Single Judge, the type of directions issued regard being....
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.... to be understood, in all circumstances, to be a challenge under Article 227 of the Constitution and determination by the High Court under the said Article and, hence, no intra­court appeal is entertainable. (d) The tenability of intra­court appeal will depend upon theBench adjudicating the lis as to how it understands and appreciates the order passed by the learned Single Judge. There cannot be a straitjacket formula for the same. 47. In the case at hand, learned counsel for the respondent State would submit that when a writ of certiorari is issued, it is a prerogative writ and, therefore, an appeal would lie to the Division Bench. He has emphatically commended us to the pronouncement in Hari Vishnu Kamath v. Syed Ahmad Ishaque and others (AIR 1955 SC 233). In the said case, the Court has referred to the earlier decision in T.C. Basappa v. T. Nagappa (AIR 1954 SC 440) and held that:­ "... 'Certiorari' will be issued for correcting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2) 'Certiorari' will also be issued when the Court ....
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....asi­judicial authority and the proceeding being quasi­judicial in nature, it cannot be regarded as one relatable to criminal jurisdiction, but it may be treated as a different kind or category of civil proceeding. His argument is supported by the Full Bench decision of the High Court of Andhra Pradesh in Gangaram Kandaram v. Sunder Chikha Amin and others (2000 (2) ALT 448 (F.B.). In the said case, a writ petition was filed for issue of a writ of mandamus to declare the action of the respondents in registering crimes under Sections 420 and 406 of the Indian Penal Code against the writ petitioner in FIR Nos. 14/97, 137/97 and 77/97 as illegal and to quash the same. The learned Single Judge had allowed the writ petition by order dated 06.08.1997 and quashed the FIRs. The order passed by the learned Single Judge was assailed by the 7th respondent in intra­court appeal. The Full Bench posed the following question:­ "Whether appeal under Clause 15 of the Letters Patent of the Court lies against the judgment in such a case. In other words, whether a proceeding for quashing of investigation in a criminal case under Article 226 of the Constitution of Ind....
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....se powers under Article 226 of the Constitution by issuing a writ in quashing the FIR is not in exercise of criminal jurisdiction. No doubt against the order under Section 482 of Cr.P.C. or against the proceedings under Contempt of Court, no appeal will lie under Clause 15 of Letters Patent, but against the judgments quashing the FIR is in exercise of the original jurisdiction of the Court under Article 226, writ appeal lies under Clause 15 of Letters Patent. Issuing a writ of mandamus or certiorari by the High Court under Article 226 pertaining to a criminal complaint or proceeding cannot be said to be an order passed in exercise of the criminal jurisdiction. Therefore, we hold that an appeal lies under Clause 15 of Letters Patent." [Emphasis added] 52. According to Mr. Visen, learned counsel for the respondent State, the view expressed by the Andhra Pradesh High Court is absolutely defensible in law and, therefore, the appeal being maintainable, the order impugned in the present appeal does not warrant any interference. 53. Dr. Dhawan, learned senior counsel, has commended us to two authorities - one by the Division Bench of Gujarat High Court and....
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.... that such question might have arisen in exercise of criminal jurisdiction. 55. It is worthy to note that a series of decisions were cited on behalf of the appellants therein including a Full Bench judgment of the Gujarat High Court in Patel Kashiram Lavjibhai v. Narottamdas Bechardas & others (1978 GLR 1047 (FB) wherein the Full Bench considered Articles 226 and 227 of the Constitution in the light of various decisions of this Court and deduced certain principles. The Division Bench distinguished the said decision on the ground that the Full Bench did not lay down as a proposition of law that LPAs would be maintainable even if an order was passed by the learned Single Judge in exercise of criminal jurisdiction, for the case before the Full Bench related to right in land and the question was whether the power exercised by the learned Single Judge was under Article 226 or under Article 227 of the Constitution. Eventually, the Court referred to Ishwarlal Bhagwandas (supra) and opined thus:­ "80. In our considered opinion, in the instant case, the proceedings can be said to be criminal proceedings inasmuch as, carried to its conclusion, they may resul....
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....criminal proceeding within the meaning of Letters Patent. 58. The Full Bench of the High Court of Delhi in C.S. Agarwal v. State & others (2011 (125) DRJ 241 (FB) was dealing with a situation wherein a writ petition was filed before the High Court under Article 226 of the Constitution of India read with Section 482 of Cr.P.C. seeking for appropriate writ for quashing of the FIR. As the writ petition was dismissed by the learned Single Judge, an intra­court appeal was preferred. A preliminary objection was taken by the respondents as regards the maintainability of the LPA contending that the judgment of the learned Single Judge was passed in exercise of criminal jurisdiction and the Letters Patent Appeal against such an order is barred by Clause 10 and Clause 18 of the Letters Patent constituting the High Court of Judicature at Lahore, which is applicable to the Judicature of High Court of Delhi. The Full Bench analysed Clause 10 of the Letters Patent and took note of what has been prohibited for entertaining any intra­court appeal. The Full Bench, analyzing various decisions, opined thus:­ "... proceedings under Article 226 of the Con....
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.... this factual backdrop, the Division Bench opined:­ "...Even though the challenge in the writ petitions was to a decision of Hon'ble the Lieutenant Governor but the said decision was relating to the prosecution already underway of the appellants and the direct effect of the dismissal of the writ petitions is of continuation of the prosecution which may result in imposition of sentences such as death, imprisonment, fine or forfeiture of property, of the appellants. We are thus of the view that this Court while dealing with the writ petitions was exercising its criminal jurisdiction. It cannot be also lost sight of that the writ petitions were intended to avoid the consequences of criminal proceedings imitated under the Code of Criminal Procedure and concerned with rights in criminal law domain. We have thus no doubt that the learned single Judge, in dealing with the writ petitions was exercising "criminal jurisdiction" and these Letters Patent Appeals are not maintainable." 61. As we find from the decisions of the aforesaid three High Courts, it is evident that there is no disagreement or conflict on the principle that if an appeal is barred under Clause 10 or Clause....
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....il as has been held in Lal Kamlendra Pratap Singh v. State of Uttar Pradesh and others (2009) 4 SCC 437) and Hema Mishra v. State of Uttar Pradesh and others (2014) 4 SCC 453) But that does not mean that an order passed by the Single Judge in exercise of Article 226 of the Constitution relating to criminal jurisdiction, can be made the subject matter of intra­court appeal. It is not provided for and it would be legally inappropriate to think so. 62. In view of the aforesaid premised reasons, we hold that the High Courts of Gujarat and Delhi have correctly laid down the law and the view expressed by the Full Bench of the High Court of Andhra Pradesh is incorrect. 63. We will be failing in our duty if we do not take note of an authority cited by Mr. Visen. He has commended us to the Division Bench Judgment of the High Court of Punjab and Haryana in Adishwar Jain v. Union of India and another (2006 Cri.LJ 3193). In the said case, the question arose with regard to the maintainability of Letters Patent Appeal, for the Single Judge had dismissed the writ of Habeas Corpus. The Division Bench, dealing with the mainta....