Supreme Court of India
RAM KISHAN FAUJIversusSTATE OF HARYANA AND ORS.
- Citation
- 2017 INSC 238
- Decided
- 21 March 2017
- Disposal
- Appeal(s) allowed
- Bench
- DIPAK MISRA
Holding
A Letters Patent Appeal is not maintainable where the Single Judge has exercised criminal jurisdiction, and Clause 10/15 of the Letters Patent bars intra‑court appeals in such cases.
Summary
Ram Kishan Fauji challenged the Haryana Lokayukta's recommendation to register an FIR and investigate alleged corruption. The Punjab & Haryana High Court, sitting as a Single Judge, quashed the recommendation and the FIR under a writ petition filed under Article 226. The State appealed the judgment via a Letters Patent Appeal (LPA) to a Division Bench, which upheld the Single Judge's order. The Supreme Court examined whether the LPA was maintainable, focusing on whether the Single Judge had exercised civil or criminal jurisdiction. It held that the proceeding was criminal in nature because it sought to quash a criminal investigation and FIR, and Clause 10/15 of the Letters Patent bars intra‑court appeals in criminal matters. Consequently, the LPA was set aside, but the State was given liberty to challenge the Single Judge's order directly. The appeal was allowed and the impugned order was vacated.
Issues considered
- The nature of the jurisdiction exercised by the Single Judge—whether civil or criminal—for the purpose of determining the applicability of Clause 10/15 of the Letters Patent.
- Whether a Letters Patent Appeal is maintainable against a judgment of a Single Judge issued in a writ petition under Article 226 that seeks to quash an FIR and criminal investigation.
- Whether the order of the Single Judge can be challenged despite the LPA being barred.
Legislation cited
- Code of Criminal Procedure, 1973s. 156(3), s. 482
- Haryana Lokayukta Act, 2002s. 14, s. 8(1)
- Letters Patent (Punjab & Haryana High Court)s. Clause 10, s. Clause 15, s. Clause 17, s. Clause 18
- Prevention of Corruption Act, 1988
Subjects
Letters Patent AppealIntra‑court appealCivil jurisdictionCriminal jurisdictionArticle 226LokayuktaFIR quashmentHigh CourtClause 10Clause 15
Judgment
[2017] 4 S.C.R. 553
RAM KISHAN FAUJI A
v.
STATE OF HARYANA AND ORS.
(Civil Appeal No. 4288of2017)
MARCH 21, 2017 ·B
[DIPAK MISRA, A. M. KHANWILKAR AND
MOHAN M. SHANTANAGOUDAR, JJ.]
Letters Patent:
Maintainability of Letters Patent Appeal (LPA) - Writ petition C
u/Art. 226 of the Constitution - Seeking quashing of
recommendation of Lokayukta for registration of FIR and
investigation - Single Judge of High Court allowed the writ petition
quashing the recommendation - Letters Patent Appeal - Allowed -
Appeal challenging maintainability of the LPA - Held: Till a D
competent legislature takes away the power of the Letters Patent,
the same can be exercised by the High Court under Cl. 10 of the
Letters Patent to the High Court - However, exercising such
jurisdiction, it is imperative to see what is the nature ofjurisdiction
that has actually been provided in the Letters Patent· - If the
proceedings, nature and relief sought pertain to anything connected E
with criminal jurisdiction, LPA would not lie, as the same is not
provided in Cl. I 0 of Letters Patent - Conception of 'criminal
jurisdiction' as used in Cl. 10 encompasses in its gamut the inception
and the consequence - In the present case, the nature of the
proceedings was criminal and not civil - Therefore, the LPA was
F
not maintainable - Letters Patent (as applicable to erstwhile Punjab
& Lahore High Courts) - Cl. 10.
Court Proceedings :
Nature/character of court proceedings - Determination of -
Held: Character of the proceedings does not depend upon the nature G
of the tribunal which is invested with the authority to grant relief.
but upon the nature of the right violated and the appropriate relief
which may be claimed.
Civil proceedings and criminal proceedings - Distinction
between - Discussed. H
553
554 SUPREME COURT REPORTS [2017] 4 S.C.R.
A Allowing the appeal, the Court
HELD: 1. 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
B that has actually been provided in the Letters Patent. The
exercise of jurisdiction has to be within the ambit and scope of
the authority enshrined in the provision meant for intra-court
appeal. [Para 28) [511-B]
Jamshed N. Guzdar v. State of Maharashtra and others
C (2005) 2 SCC 591 : [2005] 1 SCR 223 - followed.
Commissioner of Income-Tax, Bombay & another v.
Ishwarlal Bhagwandas and others [1966) 1 SCR 190;
Jogendrasinhji Vijaysinghji v. State of Gujarat and
others (2015) 9 SCC 1 : [2015] 6 SCR 504 - relied on.
D 4, An appeal shall lie from the judgment of a Single Judge
to a Division Bench of the High Court if it is so permitted within
the ambit and sweep of the Letters Patent. The power conferred
. on the High Court by the Letters Pa_tent can be abolished or
curtailed by the competent legislature by bringing appropriate
E legislation. A writ petition which assails the order of a civil court
in..the High Court has to be understood, in all circumstances, to
be a challenge under Article 227 of the Constitution and
determination by the High Court under the said Article and,
hence, no intra-court appeal is entertainable. The ~~nability of
intra-court appeal will depend upon the Bench 3dju11icating the
F /is as to how it understands and appreciates the ordl-r passed by
the Single Judge. There cannot be a straitjacket formula for the
sarite. [Para 46] (579-E-H)
Hari Vishnu Karnath v. Syed Ahmad Ishaque and others
AIR 1955 SC 233 : [1955] SCR 1104 - held
G inapplicable.
T.C. Basappa v. T. Nagappa: AIR 1954 SC 440: [1955]
SCR 250 - referred to.
3. A civil proceeding is one in which a person seeks to
H enforce by approprfate relief the alleged infringement of his civil
RAM KISHAN FAUJI v. STATE OF HARYANA AND ORS. 555
rights against another person or the State, and which, if the claim A
is proved, would result in the declaration, express or implied, of
the right claimed and relief such as payment of debt, damages,
compensation, delivery of specific property, enforcement of
personal rights, determination of status, etc. A criminal proceeding
is ordinarily one which, if carried to its conclusion, may result in B
imposition of (i) sentence, and (ii) it can take within its ambit the
larger interest of the State, orders to prevent apprehended breach
of peace and orders to bind down persons who are a danger to
the maintenance of peace and order. The character of the
proceeding does not depend upon the nature of the tribunal which
is invested with the authority to grant relief but upon the nature C
of the right violated and the appropriate relief which may be
claimed. [Paras 33 and 34] (572-E-H; 573-A]
Associated Cement Companies Ltd. v. P.N. Sharma AIR
1965 SC 1595 : (1965] SCR 366; Umaji Keshao
Meshram & others v. Radhikabai & another 1986 D
(Supp.) SCC 401 : (1986] SCR 731; Kishorilal v. Sales
Officer, District Land Development Bank (2006) 7 SCC
496 : [2006] 5 Suppl. SCR 274; State of Madhya
Pradesh and others v. Visan Marduk Shiv Charan Lal
(2008) 15 SCC 233 : (2008] 17 SCR 156; Sushilabai
Laxminarayan Mudliyar and others v. Nihalchand E
Waghajibhai Shaha and others 1993 Supp (1) SCC 11;
Ramesh Chandra Sank/a Etc. v. Vikram Cement Etc.
(2008) 14 SCC 58: [2008] 10 SCR 243; Radhey Shyam
and another v. Chhabi Nath and others (2015) 5 SCC
423 : [2015] 3 SCR 197; Surya Dev Rai v. Ram Chander F
Rai (2003) 6 SCC 675 : (2003] 2 Suppl. SCR 290;
Naresh Shridhar Mirajkar v. State of Maharashtra AIR
1967 SC 1 : (1966] SCR 744; Lokmat Newspapers (P)
Ltd. v. Shankarprasad (1999) 6 SCC 275: (1999] 3
SCR 907 - referred to.
G
4. 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 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. [Para 24] (569-C-D] H
556 SUPREME COURT REPORTS [2017] 4 S.C.R.
A South Asia Industries Private Ltd v. S.B. Sarup Singh
and others (1965) 2 SCR 756 - relied on.
5. If the proceeding, nature and relief sought pertain to
anything connected with criminal jurisdiction, intra-court appeal
would not lie, as the same is not provided in Clause 10 of the
B Letters Patent. If an appeal in certain jurisdictions is not provided
for, it cannot be conceived of. The conception of 'criminal
jurisdiction' as used in Clause 10 of the Letters Patent is not to
be construed in the narrow sense. It encompasses in its gamut
the inception and the consequence. It is the field in respect of
which the jurisdiction is exercised, is relevant. The contention
c that solely because a writ petition is filed to quash an investigation,
it would have room for intra-court appeal and if a petition is filed
under inherent jurisdiction under Section 482 CrPC, there would
be no space for an intra-court appeal, would create an anomalous,
unacceptable and inconceivable situation. The provision
D contained in the Letters Patent does not allow or permit such an
interpretation. It confers jurisdiction as regards the subject of
controversy or nature of proceeding and that subject is exercise
of jurisdiction in criminal matters. It has nothing to do whether
the order has been passed in exercise of extraordinary jurisdiction
under Article 226 of the Constitution or inherent jurisdiction
E under Section 482 CrPC. [Paras 49 and 61] [580-H; 581-A; 587-
G-H; 588-A-C]
Kartar Singh v. State of Punjab (1994) 3 SCC 569 :
[1994] 2 SCR 375; Lal Kamlendra Pratap Singh v. State
of Uttar Pradesh and others (2009) 4 SCC 437 : [2009]
F 4 SCR 1027; Hema Mishra v. State of Uttar Pradesh
and others (2014) 4 SCC 453 : [2014] 1 SCR 465 -
referred to.
6. In the present case, the writ petition was filed under
Article 226 of the Constitution for quashing of the
G recommendation of the Lokayukta. The said recommendation
would have led to launching of criminal prosecution, and, as the
factual matrix reveals, FIR was registered and criminal
investigation was initiated. The Single Judge analysed the report
and the ultimate recommendation of the statutory authority and
H thought it seemly to quash the same and after quashing the same,
RAM KISHAN FAUJI v. STATE OF HARYANA AND ORS. 557
as he found that FIR had been registered, he annulled it treating A
the same as a natural consequence. Thus, the effort of the writ
petitioner was to avoid a criminal investigation and the final order
of the writ court is quashment of the registration of FIR and the
subsequent investigation. In such a situation, to hold that the
Single Judge, in exercise of jurisdiction under Article 226 of the B
Constitution, has passed an order in a civil proceeding as the
order that was challenged was that of the quasi-judicial authority,
that is, the Lokayukta, would be conceptually fallacious. It is
because what matters is, the nature of the proceeding, and that
is the litmus test. [Para 65) (589-F-H; 590-A-B]
c
Adishwar Jain v. Union ofIndia and another 2006 Cr.LJ
3193 - distinguished.
Gangaram Kandaram v. Sunder Chikha Amin and
others 2000 (2) ALT 448 (F.B.); State of Haryana and
others v. B.rnjanlal and others AIR 1992 SC 604 : D
[1990] 3 Suppl. SCR 259; Rashmi Kumar v. Mahesh
Kumar Bhada (1997) 2 SCC 397 : [1996] 10 Suppl.
SCR 347; Rajesh Bajaj v. State NCT of Delhi (1999) 3
SCC 259 : (1999] 1 SCR 1012; Sanjeev Rajendrabhai
Bhatt v. State of Gujarat & others (2000) 1 Gujarat
Law Reports 206; Umaji Keshao Meshram & others E
v. Radhikabai & another 1986 Supp. SCC 401: [1986)
SCR 73; Supreme Court Bar Association v. Union of
India and another (1998) 4 SCC 409 : [~998) 2 SCR
795; A.R. Antulay v. R.S. Nayak and another AIR 1988
SC 1531 : [1988) 1 Suppl. SCR 1; State of Gujarat v. F
Jayantilal Maganlal Patel 1995 (2) GLH 260; Patel
Kashiram Lavjibhai v. Narottamdas Bechardas & others
1978 GLR 1047 (FB); CS. Agarwal v. State & others
2011 (125) DRJ 241 (FB); Commissioner of Income-
Tax, Bombay & another v. Jshwarlal Bhagwandas and
others [1966] 1 SCR 190; Vipul Gupta v. State & Ors G
208 (2014) DLT 468 (DB) - referred to.
7. Therefore, the Letters Patent Appeal was not
maintainable before the Division Bench of High Court and,
consequently, the order passed therein is wholly unsustainable
H
558 SUPREME COURT REPORTS [2017] 4 S.C.R.
A and, accordingly, it is set aside. However, as the State had been
diligently agitating its grievance in a legal forum which it thought
had jurisdiction, liberty is granted to the State to assail the order
of the Single Judge in accordance with law. [Para 6tiJ [590-B-C)
Lalita Kumari v. Govt. of Uttar Pradesh and others
B (2014) 2 SCC 1 : [2013) 14 SCR 713; Justice
Chandrashekaraiah (Retd.) v. Janekere C. Krishna &
others (2013) 3 SCC 117. : [2013) 3 SCR 987;
Associated Cement Cvmpanies Ltd. v. P. N Sharma AIR
1965 SC 1595 : [1965) SCR 366 - referred to.
c Case Law Reference
[2013) 14 SCR 713 referred to Para 6
[2013) 3 SCR 987 referred to Para 11
[1965] SCR 366 referred to Para 14
D
[196] 2 SCR 756 relied on Para 23
[200)5 1 SCR 223 followed Para 25
[1966) 1 SCR 190 relied on Para 29
E [1986) SCR 731 referred to Para 35
[2009) 13 SCR 886 relied on Para 37
[2006) 5 Suppl. SCR 274 referred to Para 37
F [2008] 17 SCR156 referred to Para 37
1993 Supp (1) sec 11 referred to Para 37
[2008] 10 SCR 243 referred to Para 38
[2015) 3 SCR 197 referred to Para 39
G
[2003) 2 Suppl. SCR 290 referred to Para 39
[1966] SCR 744 referred to Para 39
[2015) 6 SCR 504 relied on Para 43
H
RAM KISHAN FAUJI v. STATE OF HARYANA AND ORS. 559
(1999] 3 SCR 907 referred to Para 44 A
(1955] SCR 1104 held inapplicable Para 47
!1955) SCR 250 referred to Para 47
2000 (2) ALT 448 (F.B.) referred to Para 50
B
[1990] 3 Suppl. SCR 259 referred to Para 51
[1996] 10 Suppl. SCR 347 referred to Para 51
[1999] 1 SCR 1012 referred to Para 51
(2000) 1 Gujarat Law Reports 206 referred to Para 53
c
[1998] 2 SCR 795 referred to Para 54
[1988] 1 Suppl. SCR 1 referred to Para 54
1995 (2) GLH 260 referred to Para 54 · D
1978 GLR 1047 (FB) referred to Para 55
2011 (125) DRJ 241 (FB) referred to Para 58
208 (2014) DLT 468 (DB) referred to Para 60
E
[1994] 2 SCR 375 referred to Para 61
[2009) 4 SCR 1027 referred to Para 61
[2014] 1 SCR 465 referred to Para 61
2006 Cr.LJ 3193 distinguished Para 63 F
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4288
of2017.
From the Judgment and Order dated 12.05.2016 of the High Court
of Punjab and Haryana at Chandigarh in CM No. 3930-LPA of2015 in G
LPANo. 1426 of2015 (O&M).
Dr. Rajeev Dhavan, Sr. Adv., Arunabh Chowdhury, Anupam Lal
Das, Karma Dorjee, Vaibhav Tomar, Ms. Barnali Chowdhury, Kabir S.
Ghosh, Advs. for the Appellant.
H
560 SUPREME COURT REPORTS [2017] 4 S.C.R.
A Arun Bhardwaj, Anil Grover, AAGs., Sanjay Kumar Visen, Ronak
Karanpuria, Ashish Pandey, Sumit Sharma, Gauraan Bhardwaj,
Dr. Monika Gusain, Advs. for the Respondents.
The Judgment of the Court was delivered by
DIPAK MISRA, J. 1. Leave granted.
B 2. The Chief Secretary to the Government ofHaryana in exercise
of power under Section 8(1) of the Haryana Lokayukta Act, 2002 (for
brevity, "the Act") made a reference to the Lokayukta, Haryana to enquire
into the allegations, namely, (i) whether the allegations of bribery levelled
in the alleged Compact Disc (CD) are correct, (ii) whether Change of
c Land Use (CLU)/Licence was granted in pursuance of these allegations,
and (iii) whether by such act, any illegality was committed. The said
reference was registered as Complaint No. 773 of2013 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
D
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
E 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
F 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, iri the
meantime, got the CD examined from Mis Tmth Labs, Bangalore and
also got the: forensic examination of the audio and a report was submitted
on 20.01.2014 opining, as averred, thatthe audio and video recording in
G the earlier CD was not continuous and the recording did not appear to
be authentic. Be that as it may, on weighing the material brought on
record, the Lokayukta thought it appropriate to recommend for
registration of FIR for offences punishable under the provisions of the
Prevention of Corruption Act, 1988 (for short, "the 1988 Act") and
H investigation by a senior competent officer of impeccable integrity.
RAM KISHAN FAUJI v. STATE OF HARYANA AND ORS. 561
[DIPAK MISRA, J.]
5. At this stage, it is necessary to mention that the appellant had A
preferred Civil Writ Petition No. 4554/2014 (O&M) praying for issue of
a writ in the nature of certiorari for quashing of the impugned orders
dated 20.01.2014 and 11.02.2014 passed by the respondent No. 2 whereby
it had recommended registration of a case against the petitioner therein
under the provisions of the 1988 Act and further for issue of a writ or B
direction in the nature of mandamus restraining the respondent No. I
from initiating any consequential proceeding on the basis of the impugned
orders. The grounds asserted for the assail were that there was no
verification of the genuinity of the alleged VCD and that the action taken
was perverse, illegal, arbitrary and violative of the provisions of the Act.
6. The High Court, vide order dated 14.03.2014, directed the C
respondent State to inquire into the authenticity of the CD in question
and file a status report in the Court and further directed that the State
shall be bound by the judgment of Lulita Kumari v. Govt. of Uttar
Pradesh and others 1 with reference to the preliminary enquiry to be·
conducted in respect of corruption cases. A reply was filed before the D
High Court on 03.12.2014 and FIR No. 10/2014 was registered at P.S.
State Vigilance Bureau, Panchkula on 04.12.2014 under Sections 7 and
8 of the 1988 Act. Certain other documents were brought on record
before the learned Single Judge of the High Court and eventually. vide
judgment dated 27.02.2015, the learned Single Judge referred to various
aspects such as the facts that led to the complaint before the Lokayukta, E
the findings of the Lokayukta, the initial endeavour by the High Court to
gather details of the authenticity of the CD, the contradictory report
submitted by the writ petitioner from private laboratory, the fresh report
from Central Forensic Science Laboratory (CFSL) to quell the
contradiction, the law relating to the admissibility of evidence of electronic F
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,primafacie proof, the jurisdiction
of the Lokayukta to cause an inquiry and, ultimately, came to hold as
follows:- G
"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
1 (2014) 2 sec 1 H
562 SUPREME COURT REPORTS [2017] 4 S.C.R.
A 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
B
could not be relied on, for, it lacks the basic element ofauthenticity."
7. Being of this view, it proceeded to deal with the registration of
the complaint on the recommendation of the Lokayukta and, in that regard,
opined that:-
c "Th e learned counsel for the State would submit that the
investigation has proceeded subsequent to the impugned order
passed. A FIR has been registered on 04.12.2014, that is, after
the writ petition was filed, when the issue of the authenticity of .
the CD was very much open for consideration. Indeed, I had
stayed the further proceedings when I passed an order on
D 19.12.2014 directing the· CD to be sent along with the memory
chip to the CFSL, Hyderabad. If the investigation is purported to · ·
be take.n by lodging a FIR, consequent on the directions given by
the order which is now quashed, it shall also be quashed."
8. While so stating, the learned Single Judge ruled that ifthere is
E any other material or information of corrupt practice against the writ
petitioner, the State shall be at liberty to carry out the investigation as
·p~r law.
9. The aforesaid order came to be assailed in LPA No. 1426 of
2015. The Division Bench, by order dated 15.12.2015, without issuing
F notice to the present appellant, condoned the delay of 85 days in filing
the appeal and stayedthe operation of the judgment passed by the learned
Single Judge. The appellant filed CM No. 3930/LPA of2U l 5 for vacation
of the said interim order and.die Division Bench declined to vacate the
interim order and made it absolute on 12.05.2016 by the impugned order
G and after admitting the LPA, passed the following order:-
"However, with a view to ensure absolute objectivity in the ongoing
investigation and to rule out any possibility of alleged prejudice
against respondent No. I, the Director Gener-al of Police, Haryana
is directed to re-constitute a Special_ Investigation Team comprising
H
RAM KISHAN FAUJI v. STATE OF HARYANA AND ORS. 563
[DIPAK MISRA, J.]
three senior !PS officers who originally do not belong to the State A
of Haryana.
Liberty is granted to the parties to seek out-of-turn hearing of the
appeal after the investigation is over."
I 0. Questioning the sustainability of the order passed by the
Division Bench, Dr. Rajeev Dhawan, learned senior counsel, has raised B
a singular contention that the LPA preferred before the Division Bench
was not maintainable inasmuch as the learned Single Judge had exercised
criminal jurisdiction. He has placed reliance on certain authorities to
which we shall refer to at the relevant place in the course of our
deliberations. C
11. Mr. Sanj ay 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 D
jurisdiction that invites interference in intra-court appeal. That apart,
contends Mr. Visen that the exercise of power of the learned Single
Judge is strictly under Article 226 of the Constitution oflndia and, hence,
an intra-court appeal deserved to be entertained by the Division Bench.
It is further submitted by him that the Lokayukta is a quasi-judicial body
and when, at its instance, action is taken for inquiry, it has to come within E
the ambit and scope of civil jurisdiction and not criminal jurisdiction.
Learned counsel for the State has stressed on the status of Lokayukta
and for that matter has commended us to the authority in Justice
Chandrashekaraiah (Reid.) v. Janekere C. Krishna & others2•
12. First, we intend to advert to the position of the Lokayi.tkta or F
Upa-Lokayukta as has been dealt with in Justice Chandrashekaraiah
(supra). In the said case, Radhakrishnan, J. ruled that Lokayukta and
Upa-Lokayukta act as quasi-judicial authorities, but their functions are
investigative in nature. Scrutinising the provisions enshrined under
Sections 9, I 0 and 11 of the Karnataka Lokayukta Act, 1984, he opined G
that the said authorities, while investigating the matters, are discharging
quasi-judicial functions, but the nature offunctions is investigative. The
learned Judge, while deliberating on the consequence of the report, ruled
thus:-
2
(2013) 3 sec 117 H
564 SUPREME COURT REPORTS [2017] 4 S.C.R.
A "The Governor of the State, acting in his discretion, if accepts the
report of the Lokayukta against the Chief Minister, then he has to
resign from the post. So also, ifthe Chief Minister accepts such a
report against a Minister, then he has to resign from the post. The
Lokayukta or Upa-Lokayukta, however, has no jurisdiction or
power to direct the Governor or the Chief Minister to implement
B
his report or direct resignation from the office they hold, which
depends upon the question whether the Governor or the Chief
Minister, as the case may be, accepts the report or not. But when
the Lokayukta or Upa-Lokayukta, if after the investigation, is
satisfied that the public servant has committed any criminal offence,
c prosecution can be initiated, for which prior sanction of any
authority required under any law for such prosecution, shall also
be deemed to have been granted."
13. In the concurring opinion, Lokur, J. posed the question whether
the Lokayukta is a quasi-judicial authority. The argument on behalf of
D the State was that Upa-Lokayukta is essentially required to investigate
complaints and enquire into the grievances brought before it and,
therefore, he may be exercising some quasi-judicial functions, but that
does not make him a quasi-judicial authority. The said submission was
advanced to highlight the proposition that when the Upa-Lokayukta is
not a quasi-judicial authority, the opinion of the Chief Justice of the High
E Court of Karnataka would not have primacy in the appointment and
consultation process. After adverting to the powers and functions of
Upa-Lokayukta, it has been held that:-
"105. Section 14 of the Act enables the Upa-Lokayukta to
prosecute a public servant and if such an action is taken, sanction
F 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
G responsibilities of the Upa-Lokayukta, as statutorily prescribed,
clearly bring out that not only does he perform quasi-judicial
functions, as contrasted with purely administrative or executive
functions, but that the Upa-Lokayukta is more than an investigator
or an enquiry officer. At the same time, notwithstanding his status,
he is not placed on the pedestal ofajudicial authority rendering a
H
RAM KISHAN FAUJI v. STATE OF HARYANA AND ORS. 565
[DIPAK MISRA, J.]
binding decision. He is placed somewhere in between an A
investigator and a judicial authority, having the elements of both.
For want of a better expression, the office of an Upa-Lokayukta
can only be described as a sui gen eris quasi-j_udicial authority."
"108 ....... The final decis.ion rendered by the Upa-Lokayukta,
called a report, may not bear the stamp of a judicial decision, as B
would that of a court or, to a lesser extent, a tribunal, but in
formulating the report, he is required to consider the point of view
of the person complained against and ensure that the investigation
reaches its logical conclusion, one way or the other, without any
interference and without any fear. Notwithstanding this, the report
of the Upa-Lokayukta does not determine the rights of the C
complainant or the person complained against. Consequently, the
Upa~Lokayukta is neither a court nor a tribunal. Therefore, in rny
opinion, the Upa-Lokayukta can best be described as a sui generis
quasi-judicial authority."
14. After so stating, the learned Judge referred to the opinions of D
Kania, CJI and Das, J. in Associated Cement Companies Ltd. v. P.N.
Sharma 3 and arrived at the following conclusion:-
"As mentioned above, an Upa-Lokayukta does function as an
adjudicating authority but the Act places him short of a judicial
authority. He is much more "judicial" than an investigator or an E
inquisitorial authority largely exercising administrative or executive ·
functions and powers. Under the circumstances, taking an overall
view of the provisions of the Act and the law laid down, my
conclusion is that the Upa~Lokayukta is a quasi-judicial authority
or in any event an authority exercising functions, powers, duties F
and responsibilities conferred by the Act as a sui generis quasi-
judicial authority. .
15. The aforesaid pronouncement was rendered when the
appointment ofUpa-Lokayukta was challenged on the ground that one
of the constitutional functionaries was not consulted. Emphasis was on G
the nature of the post held by Lokayukta or Upa~Lokayukta.
16. The aforesaid paragraphs would clearly show that neither the
'
Lokayukta nor Upa-Lokayukta has any jurisdiction or authority to direct
implementation of his report by the constitutional functionary but whert
3
AIR 1965 SC 1595 H
566 SUPREME COURT REPORTS [2017] 4 S.C.R.
A after investigation, it is found that the public servant has committed any
criminal offence, prosecution can be initiated for which prior sanction of
any authority is required under any law for such prosecution and the
same shall be deemed to have been granted.
17. Relying on the aforesaid judgment, it is submitted by Mr. Visen
·B that when the posts held by Lokayukta and Upa-Lokayukta are quasi-
judicial in nature, their functioning has to be given the same character
and once they are clothed with such functioning and action taken by
them is subject to challenge before the High Court under Article 226 of
the Constitution seeking a writ of certiorari for quashment of the same,
in that event, the adjudication has to be regarded as civil in nature.
C Elaborating further, he would submit that in the instanfoase, 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 oflndia and resultantly, the order passed by the
learned Single Judge is amenable to correction in intra-court appeal.
D 18. The maze needs to be immediately cleared. In the instant
case, we are really not concerned with the nature of the post held by
Lokayukta or Upa-Lokayukta. We are also not concerned how the
recommendation of the said authorities is to be challenged and what will
be the procedure therefor. As has been held by this Court, neither the
E Lokayukta nor Upa-Lokayukta can direct implementation of his report,
but it investigates and after investigation, ifit is found that a public servant
has committed a criminal offence, prosecution can be initiated.
19. Having discussed as aforesaid, at this juncture, reference to
Clause 10 of the Letters Patent (as applicable to erstwhile Punjab &
F Lahore High Courts) is absolutely apposite. It reads as follows:-
"10. Appeals to the High Court from Judges of the Court -
And we do further ordain that an appeal shall lie to the said High
Court of Judicature at Lahore from the judgment (not being a
judgment passed in the exercise of appellate jurisdiction in respect
G of a decree or order made in the exercise of appellate jurisdiction
by a Court subject to the superintendence of the said High Court,
and not being an order made in the exercise of revisional jurisdiction,
and not being a sentence or order passed or made in exercise of
the power of superintendence under the provisions of Section 107
of the Government of India Act, or in the exercise of criminal
H
RAM KISHAN FAUJI v. STATE OF HARYANA AND ORS. 567
[DIPAK MISRA, J.]
jurisdiction) of one Judge of the said High Court or one Judge of A
any Division Court, pursuant to Section 108 of the Governffient of
India Act, and that notwithstanding anything hereinbefore provided
an appeal shall lie to the said High Court from a judgment of one
Judge of the said High Court or one Judge of any Division Court,
pursuant to Section 108 of the Government of India Act, made on B
or after the first day of February, one thousand nine hundred and
twenty-nine in the exercise of appellate jurisdiction in respect ofa
decree or order made in the exercise of appellate jurisdiction by a
Court subject to the superintendence of the said High Court where
the Judge who passed the judgment declares that the case is a fit
one for appeal; but that the right of appeal from other judgments C
of Judges of the said High Court or of such Division Court shall
be to Us, Our Heirs or Successors in Our or Their Privy Council,
as hereinafter provided."
[emphasis added]
20. On a plain reading of the aforesaid clause of the Letters Patent, D
it is manifest that no appeal lies against the order passed by the Single
Judge in exercise of criminal jurisdiction. Thus, the question that is required
to be posed is whether the learned Single Judge, in the obtaining factual
matrix has exercised criminal jurisdiction or not.
21. Presently, we may fruitfully refer to Clauses 15, 17 and 18 E
that deal with criminal jurisdiction. Clause 15 that provides for ordinary
criminal jurisdiction of the High Court reads as under:-
"15. And We do further ordain that the High Court of Judicature
at Lahore shall have ordinary original criminal jurisdiction in respect
of all such persons within the Provinces of Punjab and Delhi as F
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 · G
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 py any magistrate or other officer specially empowered
by the Government in that behalf.
H
568 SUPREME COURT REPORTS [2017) 4 S.C.R.
A 18. And We do further ordaip that there shall be no appeal to the
High Court of Judicature at Lahore from any sentence or order
passed or made by the Courts of original criminal jurisdiction which
may be constituted by one or more Judges of the said High Court.
But it shall be at the discretion of any such court to reserve any
point or points oflaw forthe opinion of the said High Court."
B
[underlining is ours]
23. It is worthy to mention here that Clause 10 of the Letters
Patent establishing the Lahore High Court (which is applicable to the
Hon'ble Punjab & Haryana High Court) is in pari materia to Clause 15
of the Letters Patent of the Chartered High Courts. The four-Judge
C Bench, in South Asia Industries Private Ltd v. S.B. Sarup Singh and
others", speaking through Subba Rao, J. (as His Lordship then was)
referred to Clauses 10 and 11 of the Letters Patent and, in that context,
ruled:-
"A plain reading of the said clause indicates that except in the 3
D cases excluded an appeal lay against the judgment of a single
Judge of the High Court to the High Court in exercise of <!!!Y
other jurisdiction. As the clause then stood, it would appear that
an appeal lay against the judgment of a single Judge of the High
Court made in exercise of second appellate jurisdiction without
E any limitation thereon. The effect of the amendment made in 1928,
so far as is relevant to the present enquiry, is the exclusion of the
right of appeal from a judgment passed by a single Judge sitting in
second appeal unless the Judge who passed the judgment grants
a certificate that the case is a fit one for appeal."
[Emphasis added]
'f
The Court in the said case after referring to number of authorities
also observed:-
"A statute may give a right of appeal from an order of a tribunal
or a Court to the High Court without any limitation thereon. The
G appeal to the High Court will be regulated by the practice and
procedure obtaining in the High Court. Under the rules made by
the High Court in exercise of the powers conferred on it un.der s.
108 of the Government of India Act, 1915, an appeal under s. 39
of the Act will be heardby a single Judge. Any judgment made by
H '(1965) 2 SCR 756
RAM KISHAN FAUJI v. STATE OF HARYANA AND ORS. 569
[DIPAK MISRA, J.)
the single Judge in the said appeal will, under cl. 10 of the Letters A
Patent, be subject to an appeal to that Court. If the order made by
a single Judge is a judgment and if the appropriate Legislature
has, expressely or by necessary implication, not taken away the
right of appeal, the conclusion is inevitable that an appeal shall lie
from the judgment of a single Judge under cl. 10 of the Letters B
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 C
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 D
in Jamslted N. Guzdar v. State ofMaharashtra and others 5 would be
apposite. In the said case, the controversy arose pertaining to the
constitutional validity of the Bombay City Civil Court and Bombay Court
of Small Causes (Enhancement of Pecuniary Jurisdiction and
Amendment) Act, 1986 (Maharashtra Act 15 of 1987) (for short "the E
1987 Act"), Maharashtra High Court (Hearing ofWrit Petitions by Division
Bench and Abolition of Letters Patent Appeals) Act, 1986 (Maharashtra
Act 17of1986) (for short"the 1986Act") and Madhya Pradesh Uchcha
Nyayalaya (Letters Patent Appeals Samapti) Adhiniyam, 1981 (for short
'the Adhiniyam') by which State Legislatures had abolished the intra-
court appeals provided under the Letters Patent. It is apt to note here F
thatJhe Full Bench of the Madhya Pradesh High Court, by majority
opinion, had struck down the legislation abolishing Letters Patent Appeal
as invalid.
26. The principal question that emerged for consideration related
to the legislative competence of the State Legislatures in passing the G
above named enactments. The Constitution Bench held thus:-
"73 .... Entry 46 of List III relates to jurisdiction and power of all
courts except the Supreme Court i.e. including the City Civil Court
'(2005) 2 sec 591
H
570 SUPREME COURT REPORTS [2017] 4 S.C.R.
A and High Court with respect to any matter in List III including the
Civil Procedure Code in Entry 13. The contention that merely
constituting and organising High Courts without conferring
jurisdiction to deal with the matters on them does not serve any
purpose, cannot be accepted. The Constitution itself has conferred
jurisdiction on High Courts, for instance, under Articles 226 and
B
227. This apart, under various enactments, both Central and State,
certain jurisdiction is conferred on High Courts. The High Courts
have power and jurisdiction to deal with such matters as are
conferred by the Constitution and other statutes. This power of
"administration of justice" has been included in the Concurrent
c List after 3-1-1977 possibly to enable both the Centre as well as
the States to confer jurisdiction on High Courts under various
enactments passed by the Centre or the State to meet the needs
of the respective States in relation to specific subjects. Thus,
viewed from any angle, it is not possible to agree that the 1987
Act and the 1986 Act are beyond the competence of the State
D
Legislature.
74. We are, therefore, of the view that there is no merit in the
contention that the State Legislature did not have competence to
enact the two legislations, the constitutionality of which has been
challenged before us."
E
Andagain:-
"88. The argument that the 1986 Act or the Adhiniyam encroaches
upon the legislative power of Parliament, cannot be accepted, in
the view we have taken that it was competent for the State
F Legislatures to pass law relating to general jurisdiction of the High
Courts dealing with the topic "administration of justice" under
Entry 11-A of List III. Assuming that incidentally the 1986 Act
and the Adhiniyam touch upon the Letters Patent, the 1986 Act
and the Adhiniyam cannot be declared either as unconstitutional
or invalid applying doctrine of pith and substance having due regard
G to the discussion already made above while dealing with the
legislative competence of the State in passing the 1987 Act."
27. On the aforesaid analysis, the Court set aside the judgment of
the Full Bench of the High Court of Madhya Pradesh and dismissed the
writ petitions filed by others challenging the 1986 Act and the 1987 Act.
H
RAM KISHAN FAUJI v. STATE OF HARYANA AND OR$. 571
[DIPAK MISRA, J.]
Thus, it has been clearly held that the State Legislature has competence A
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 ofjurisdiction B
that has actually been provided in the Letters Patent. The exercise of
jurisdiction has to be within the ambit and scope of the authority enshrined
in the provision meant for intra-court appeal.
29. At this stage, we may refer to some of the pronouncements
commended to us by the learned senior counsel for the appellant. In c
Commissioner of Income-Tax, Bombay & another v. Ishwtirlal
Bhagwandas and others6, the High Court of Bombay under Article
226 of the Constitution had quashed the orders passed by the Inconie
Tax Officer and the Commissioner of Income Tax. Against the orders
passed by the High Court, the Commissioner of Income Tax and the
Income Tax Officer prayed for grant of certificate to the High Court D
and after grant of such certificate, appealed to this Court. At the
commencement of hearing of the appeal, the learned counsel for the
assessee raised a preliminary objection that the appeal filed by the revenue
was incompetent because the High Court had no power under Article
133 of the Constitution to certify a proposed appeal against an order in a E
proceeding initiated by a petition forthe issue of a writ under Article 226
of the Constitution inasmuch as the proceeding before the High Court
was not "a civil proceeding" within the meaning of Article 133.
30. The Court referred to Article 133 of the Constitution and took
note of the submission that the jurisdiction exercised by the High Court F
as regards the grant of certificate pertains to judgment, decree or final
order of a High Court in a civil proceeding and that "civil proceeding"
only means a proceeding in the nature of or triable as a civil suit and a
petition for the issue of a high prerogative writ by the High Court was
not such a proceeding. Additionally, it was urged that even if the
proceeding for issue ofa writ under Article 226 of the Constitution may, G
in certain cases, be treated as a civil proceeding, it cannot be so treated
when the party aggrieved seeks relief against the levy of tax or revenue
claimed to be due to the State. The Court, delving into the nature of civil
proceedings, noted that:-
' (1966) 1SCR190 H
572 SUPREME COURT REPORTS [2017] 4 S.C.R.
A "The expression "civil proceeding" is not defined in the
Constitution, nor in the General Clauses Act. The expression in
our judgment covers all proceedings in which a party asserts the
existence of a civil right conferred by the civil law or by statute,
and claims relief for breach thereof."
B 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
C 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."
D 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."
E 33. It further held that a civil proceeding is, therefore, one in which
a person seeks to enforce by appropriate relief the alleged infringement
of his civil rights against another person or the State, and which, if the
claim is proved, would result in the declaration, express or implied, of the
right claimed and relief such as payment of debt, damages, compensation,
F delivery of specific property, enforcement of pers Jnal rights,
determination of status, etc.
34. The aforesaid authority makes a clear distinction between a
civil proceeding and a criminal proceeding. As far as criminal proceeding
is concerned, it clearly stipulates that a criminal proceeding is ordinarily
G one which, if carrfea to its conclusion, may result in imposition of (i)
sentence, and (ii) it can take within its ambit the larger interest of the
State, orders to prevent apprehended breach of peace and orders to
bind down persons who are a danger to the maintenance of peace and
order. The Court has ruled that the character of the proceeding does not
H
RAM KISHAN FAUJI v. STATE OF HARYANA AND ORS. 573
[DIPAK MISRA, J.]
depend upon the nature of the tribunal which is invested with the authority A
to grant relief but upon the nature of the right violated and the appropriate
relief which may be claimed.
35. In this regard, reference to Umaji Keshao Meshram & others
v. Radhikabai & another7 would be fruitful. In the said case, the
controversy arose whether an appeal lies under Clause 15 of the Letters B
. Patent of the Bombay High Court to a Division Bench of two judges of
that High Court from the judgment of a Single Judge of that High Court
in a petition filed under Article 226 or 227 of the Constitution of India.
The Court referred to the Letters Patent of Calcutta, Bombay and Madras
High Courts which are pari materia in the same terms with minor
variations that have occurred due to amendments made subsequently. C
The Court referred to the provisions of the Government ofindia Act, the
Indian Independence Act, 1947 and the debates of the Constituent
Assembly and observed that the historical evidence shows that our
Constitution did not make a break with the past. It referred to some
earlier authorities anC:, eventually, came to hold that:- D
"92. The position which emerges from the above discussion is
that under clause 15 of the Letters Patent of the Chartered High
Courts, from the judgment (within the meaning of that term as
used in that clause) of a Single Judge of the High Court an appeal
lies to a Division Bench of that High Court and there is no E
qualification or limitation as to the nature of the jurisdiction
exercised by the Single Judge while passing his judgment, provided
an appeal is not barred by any statute (for example, Section 100-
A of the Code of Civil Procedure, 1908) and provided the conditions
laid down by clause 15 itself are fulfilled. The conditions prescribed
by clause 15 in this behalf are: (J) that it must be a judgment F
pursuant to Section 108 of the Government ofindiaAct of 1915,
and (2) it must not be a judgment falling within one of the excluded
categories set out in clause 15."
Andagain:-
G
"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,
1
1986 (Supp.) sec 401 H
574 SUPREME COURT REPORTS [2017] 4 S.C.R.
A 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 "revisionaljurisdiction"
and "power of superintendence". We are afraid, the Full Bench
has misunderstood the scope and effect of the powers conferred
by these articles. These tw-0 articles stand on an entirely different
B
footing. As made abundantly clear in the earlier part of this
judgment, their source and origin are different and the models
upon which they are patterned are also different. Under Article
226 the High Courts have power to issue directions, orders and
writs to any person or authority including any Government. Under
c Article 227 every High Court has power of superintendence over
all courts and tribunals throughout the territory in relation to which
it exercises jurisdiction. The power to issue writs is not the same
as the power of superintendence. By no stretch of imagination
can a writ in the nature of habeas corpus or mandamus or quo
warranto or prohibition or certiorari be equated with the power of
D
superintendence. These are writs which are directed against
persons, authorities and the State. The power of superintendence
conferred upon every High Court by Article 227 is a supervisory
jurisdiction intended to ensure that subordinate courts and tribunals
act within the limits of their authority and according to law (see
E State of Gujarat v. Vakhatsinghji Vajesinghji Vaghela 8 and
Ahmedabad Mfg. & Calico Ptg. Co. Ltd. v. Ram Tahel
Ramnan<f!). The orders, directions and writs under Article 226
are not intended for this purpose and the power of superintendence
conferred upon the High Courts by Article 227 is in addition to
that conferred upon the High Courts by Article 226. Though at
F
the first blush it may seem that a writ of certiorari or a writ of
prohibition partakes of the nature of superintendence inasmuch
as at times the end result is the same, the nature of the power to
issue these writs is different from the supervisory or superintending
power under Article 227. The powers conferred by Articles 226
G and 227 are separate and distinct and operate in different fields.
The fact that the same result can at times be achieved by two
different processes does not mean that these two processes are
the same."
8 AIR 1968 SC 1481
H 9 (1973) I SCR 185
RAM KISHAN FAUJI v. STATE OF HARYANA AND ORS. 575
[DIPAK MISRA, J.]
36. In the ultimate analysis, the two-Judge Bench held that the A
petition filed by the appellant before the Nagpur Bench of the Bombay
High Court was admittedly under Article 227 of the Constitution and
under the rules of the High Court, it was heard by a Single Judge and
under Clause 15 of the Letters Patent of that High Court, an intra-court
appeal against the decision of the learned Single Judge was expressly B
barred.
37. In this context, a reference to a two-Judge Bench decision in
AshokK. Jha and others v. Garden Silk Mills Limited and another 10
would be profitable. The question that arose for consideration was whether
an appeal under Clause 15 of the Letters Patent of the High Court of
Bombay was maintainable from the judgment and order passed by the C
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 D
. to Umaji Keshao Meshram (supra), Kishorilal v. Sales Officer, District
Land Development Bank 11 , State of Madhya Pradesh and others v.
Visan Kumar Shiv Charan Lal 12 and Sushilabai Laxminarayan
Mudliyar and others v. Nihalchand Waghajibhai Shaha and others 13
and ultimately held that:-
E
"35. In Visan Kumar Shiv Charan Lal (supra) this Court further
held that the determining factor is the real nature of principal order
passed by the Single Judge which is appealed against and neither
mentioning in the cause-title of the application of both the articles
nor granting of ancillary order thereupon by the Single Judge would
be relevant and in each case the Division Bench must consider F
the substance of the judgment under appeal to ascertain whether
the Single Judge has mainly or principally exercised his jurisdiction
under Article 226 or Article 227 of the Constitution. In Ramesh
Chandra Sankla 14 this Court held:
"47. In our judgment, the learned counsel for the appelknt is G
right in submitting that nomenclature of the proceeding or
-(2009)
IO
- -10- -
sec 584
11
(2006) 1 sec 496
12
(2008) 15 sec 233
13 1993 Supp (I) sec 11
"(2008) 14 sec 58 H
576 SUPREME COURT REPORTS [2017] 4 S.C.R.
A 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
B
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 .... "
c 38. The Court in the said case accepted the decision rendered in
Ramesh Chandra Sank/a (supra) and opined that a statement by a
learned Single Judge that he has exercised power under Article 227
cannot take away the right of appeal against such judgment if the power
is otherwise found to have been exercised under Article 226. The vital
D factor for determination of the maintainability of the intra-court appeal is
the nature of jurisdiction invoked by the party and the tme nature of the
order passed by the learned Single Judge.
39. In Radhey Sh yam and another v. Chltabi Nath and others 1',
the issue arose with regard to the correctness of the decision in Surya
E Dev Rai v. Ram Chander Rai 16 before the three-Judge Bench. The
three-Judge Bench referred to Naresh Shridhar Mirajkar v. State of
Maharashtra 17 wherein this Court came to the conclusion that
"Certiorari does not lie to quash the judgments ofinferior 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
F it with the English law principles and mled 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
G that scope ofArticles 226 and 227 was obliterated was not correct
as rightly observed 18 by the referring Bench in para 32 quoted
1• (2015) s sec 423
1• (2003) 6 sec 675
17 AIR 1967 SC I
H 1• (2009) 5 sec 616
RAM KISHAN FAUJI v. STATE OF HARYANA AND ORS. 577
[DIPAK MISRA, J.]
above. We make it clear that though despite the curtailment of A
revisionaljurisdiction under Section 115 CPC by Act 46of1999,
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. B
Amarnathi 9 , Ouseph Mathai v. M Abdul Khadir 20 , Shalini
Shyam Shetty v. Rajendra Shankar PatiP. 1 and Sameer Suresh
Gupta v. Rahul Kumar AgarwaP. 2 ."
40. The ultimate conclusion arrived at in the said case is that:-
"27 .... we are of the view that judicial orders of civil courts are c
not amenable to a writ of certiorari under Article 226. We are
also in agreement with the view 19 of the referring Bench that a
writ of mandamus does not lie against a private person not
discharging any public duty. Scope ofArticle 227 is different from
Article 226."
D
41. The Court clarified the position by adding that:-
"28. We may also deal with the submission made· on behalf of the
respondent that the view in Surya Dev Rai (supra) stands
approved by larger Benches in Shail23, Mahendra Saree
Emporium (2)24 and Salem Advocate Bar Assn. (2)25 and on E
that ground correctness of the said view cannot be gone into by
this Bench. In Shail (supra), though reference has been made to
Surya Dev Rai (supra), the same is only fo~ the purpose of scope
of power under Article 227 as is clear from para 3 of the said
judgment. There is no discussion on the issue of maintainability of
a petition under Article 226. In Mahendra Saree Emporium (2) F
(supra), reference to Surya Dev Rai (supra) is made in para 9 of
the judgment only for the proposition that no subordinate legislation
can whittle down the jurisdiction conferred by the Constitution.
Similarly, in Salem Advocate Bar Assn. (2) (supra) in para 40,
19
AIR 1954 SC 215
G
20 (2002) 1 sec 319
21 (2010) s sec 329
22 (2013) 9 sec 374
" (2004) 4 sec 785
24 (2005) 1 sec 481
" (2005 l 6 sec 344 H
578 SUPREME COURT REPORTS [2017] 4 S.C.R.
A reference to Surya Dev Rai (supra) is for the same purpose. We
are, thus, unable to accept the submission of the learned counsel
for the respondent."
42. In the ultimate eventuate, the three-Judge Bench answered
the reference as follows:-
B "29.1. Judicial orders of the civil court are not amenable to writ
jurisdiction under Article 226 of the Constitution.
29.2. Jurisdiction under Article 227 is distinct from jurisdiction
under Article 226.
C 29.3. Contrary view in Surya Dev Rai (supra) is overruled."
43. Recently, in Jogendrasinhji Vtjaysinghji v. State o/Gujarai
and others26 the Court was dealing with a batch of appeals that arose
from the High Court of Gujarat as regards the maintainability of Letters
Patent Appeal. The Court referred to the nine-Judge Bench decision in
D Naresh Shridhar Mirajkar (supra) and the three-Judge Bench decision
in Radhey Shyam (supra) and ruled that a judicialorder passed by the
civil court can only be assailed and scrutinised under Article 227 of the
Constitution and, hence, no intra-court appeal is maintainable.
44. As the controversy related to further two aspects, nam~Iy,
whether the nomenclature of article is sufficient enough and further,
E
whether a tribunal is a necessary party to the litigation, the two-Judge
Bench proceeded to answer the same. In that context, the Court referred
to the authorities in Lokmat Newspapers (P) Ltd. v. Shankarprasad2 7,
Kishorilal (supra), Ashok K. Jha (supra) and Ramesh Chandra Sank/a
(supra) and opined that maintainability ofa letters patent appeal would
F depend upon the pleadings in the writ petition, the nature and character
of the order passed by the learned Single Judge, the type of directions
issued regard being had to the jurisdictional perspectives in the
constitutional context. It further observed that barring the civil court,
from which order as held by the three-Judge Bench in Radhey Shyam .
G (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
"(2015) 9 sec 1
H "(1999) 6 sec 275
RAM KISHAN FAUJI v. STATE OF HARYANA AND ORS. 579
[DIPAK MISRA, J.]
Article 227 or both, would depend upon various aspects. There can be A
ord~rs passed by the learned Single Judge which can be construed as an
order under both the articles in a composite manner, for they can co-
exist, coincide and imbricate. It was reiterated that it would depend upon
the nature, contour and character of the order and it will be the obligation
of the Division Bench hearing the letters patent appeal to discern and B
decide whether the order has been passed by the learned Single Judge
in exercise ofjurisdiction under Article 226 or 227 of the Constitution or
both. The two-Judge Bench further clarified that the Division Bench
would also be required to scrutinise whether the facts of the case justify
the assertions made in the petition to invoke the jurisdiction under both
the articles and the relief prayed on that foundation. The delineation C
with regard to necessary party not being relevant in the present case,
the said aspect need not be adverted to.
45. We have referred to these decis.ions only to highlight that it is
beyond any shadow of doubt that the order of civil court can only be
challenged under Article 227 of the Constitution and from such challenge, D
no intra-court appeal would lie and in other cases, it will depend upon the
other factors as have been enumerated therein.
46. At this stage, it is extremely necessary to cull out the
conclusions which are deducible from the aforesaid pronouncements.
They are:- E
(a) An appeal shall lie from the judgment of a Single Judge to a
Division Bench of the High Court ifit is so permitted within the ambit
and sweep of the Letters Patent.
(b) The power conferred on the High Court by the Letters Patent
can be abolished or curtailed by the competent legislature by bringing F
appropriate legislation.
(c) A writ petition which assails the order of a civil court in the
High Court has to be understood, in all circumstances, to be a challenge
under Article 227 of the Constitution and determination by the High Court
under the sa.idArticle and, hence, no intra-court appeal is entertainable. G
(d) The tenability of intra-court appeal will depend upon the Bench
adjudicating the /is as to how it understands and appreciates the order
passed by the learned Single Judge. There cannot be a straitjacket formula
for the same.
H
580 SUPREME COURT REPORTS [2017] 4 S.C.R.
A 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
Karnath v. Syed Ahmad lshaque an,d others28 • In the said, case, the
Court has referred to the earlier decision in T.C. Basappa v.
B
T. Nagappa 29 and held that:-
" ... 'Certiorari' will be issued for correcting errors ofjurisdiction,
as when an inferior Court or Tribunal acts without jurisdi.:tion or
in excess of it, or fails to exercise it. (2) 'Certiorari' will also be
issued when the Court or Tribunal acts illegally in the exercise of
c its undoubted jurisdiction, as when it decides without giving an
opportunity to the parties to be heard, or violates the principles of
natural justice. (3) The Court issuing a writ of certiorari acts in
exercise of a supervisory and not appellate jurisdiction. One
consequence of this is that the Court will not review findings of
D fact reached by the inferior Court or Tribunal, even if they be
erroneous. This is on the principle that a Court which has jurisdiction
over a subject-matter has jurisdiction to decide wrong as well as
right, and when the Legislature does not choose to confer a right
of appeal against that decision, it would be defeating its purpose
and policy, if a superior Court were to re-hear the case on the
E evidence, and substitute its own findings in certiorari. These
propositions -are well settled and are not in dispute."
48. It is propounded by Mr. Visen that a writ of certiorari can be
issued on many a ground amlwhen the learned Single Judge has issued
a writ of the present nature in quashing the order of the Upa-Lokayukta,
F it has to be treated as an order under Article 226 of the Constitution of
India. That apart,-he urged that the issue whether it would be under
Articl~ 226 or 227 is to be determined by the Division Bench of the High
Court.
49. The aforesaid argument suffers from a fundamental fallacy.
G It is because the submission is founded on the plinth of whether the writ
jurisdiction has been exercised under Article 226 or 227 of the
Constitution. It does not take note of the nature of jurisdiction and the
relief sought. Ifthe proceeding, nature and relief sought pertain to anything
connected with criminal jurisdiction, intra-court appeal would not lie as
H "AIR 1955 SC 233
29
AIR 1954 SC 440
RAM KISHAN FAUJI v. STATE OF HARYANA AND ORS. 581 .
[DIPAK MISRA, J.]
the same is not provided in Clause 10 of the Letters Patent. Needless to A
emphasise, if an appeal in certain jurisdictions is not provided for, it cannot
be conceived of. Therefore, the reliance placed upon the larger Bench
authority in Hari Vishnu Kamath (supra) does not render any assistance
to the argument advanced by the learned counsel for the respondent-
State.
B
50. The crux of the present matter is whether the learned Single
Judge has exercised "civil jurisdiction" or"criminaljurisdiction". In that
regard, Mr. Visen has strenuously contended that the Lokayukta is a
quasi-judicial authority and the proceeding being quasi-judicial in nature,
it cannot be regarded as one relatable to criminal jurisdiction, but it may
be treated as a different kind or category of civil proceeding. His argument C
is supported by the Full Bench decision of the High Court of Andhra
Pradesh in Gangaram Kandaram v. Sunder Chikha Amin and
others 30 • In the said case, a writ petition was filed for issue of a writ of
mandamus to declare the action of the respondents in registering crimes
under Sections 420 and 406 of the Indian Penal Code against the writ D
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 7'h respondent in intra-court appeal.
The Full Bench posed the following question:-
E
"Whether appeal under Clause 15 of the Letters Patent of the
Court lies against the judgment in such a case. In other words,
whether a proceeding for quashing of investigation in a criminal
case under Article 226 of the Constitution of India is a civil
proce.eding and the judgment as above is a judgment in a civil
proceeding in exercise of the original jurisdiction of the Court for F
the purposes of appeal under Clause 15 of the Letters Patent.,;
51. Dwelling upon the said issue, the Court referred to the authority
in State of Haryana and others v. Bhajanlal and others 31 wherein the
Court had categorised certain aspects of the case as illustrations wherein
power under Article 226 or the inherent power under Section 482 CrPC G
can be exercised. Be it noted, the Court gave a note of caution to the
effect that the· power of quashing a criminal proceeding should be
exercised very sparingly and with circumspection and that too in the
30 2000 (2) ALT 448 (F.B.)
31
AIR 1992 SC 604 H
582 SUPREME COURT REPORTS [2017] 4 S.C.R.
A rarest of rare cases and further, the Court will not be justified in embarking
upon an enquiry as to the reliability or genuineness or otherwise of the
allegations made in the FIR or the complaint and that the extraordinary
or inherent powers do not confer an arbitrary jurisdiction on the Court to
act according to its whim or caprice. The Full Bench, after referring to
B the same, adverted to the authorities in Rashmi Kumar v. Mahesh
Kumar Bhad<i3 2 andRajesh Bajaj v. State NCT ofDelhi33, deliberated
upon the maintainability of the appeal and, in that regard, stated thus:-
"15.As per Clause 15 of Letters Patent, no appeal shall lie against
the judgment of one Judge of the said High Court or one Judge of
any Division Bench passed in exercise of appellate jurisdiction in
c respect of decree or order made in exercise of appellate jurisdiction
by a Court subject to the superintendence of the said High Court
and not being an order made in exercise of the revisional
jurisdiction and not being a sentence or order passed or made in
exercise of power of superintendence of Section 107 of
D Government of India Act or in exercise of criminal jurisdiction.
An appeal shall lie to the Division Bench under Clause 15 of
Letters Patent from the judgment of one Judge of the High Court
or one Judge of any Division Bench. The appeal from judgments
pf single Judges of the High Court shall lie to the Division Bench
!~xcept the judgments prohibited by Clause 15. The learned single
E ,fudge while exercising the extraordinary jurisdiction under Article
· ;z26 quashed the criminal proceedings. In our view, the exercise
powers under Article 226 of the Constitution by issuing a writ in
quashing the FIR is not in exercise of criminal jurisdiction. No
doubt against the order under Section 482 of Cr.P.C. or against
F 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 226pertainingto a criminal complaint or proceeding cannot
G 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
.!:'atent."
[Emphasis added]
" 1997 (2) sec 397, 1997 sec (Crl.) 415
H ·" 1999 (3) sec 259, 19?9 sec (Crl.) 401
RAM KISHAN FAUJI v. STATE OF HARYANA AND ORS. 533
[DIPAK MISRA, J.]
52. According to Mr. Visen, learned counsel for the respondent A
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 B
the other by the Full Bench of High Court of Delhi. In Sanjeev
Rajendrabhai Bhatt v. State of Gujarat & others34 , two appeals being
Special Criminal Application Nos. 6 and 24of1998 arose out of a common
order passed by the learned Single Judge. The learned Single Judge, by
the impugned order, upheld the preliminary objection raised on behalf of C
the State ofRajasthan that the High Court of Gujarat had no territorial
jurisdiction in the matter as the proceedings were initially conducted in
the Coun of Chief Judicial Magistrate, Pali situated in Rajasthan. The
maintainability of the objections on the ground of want of territorial
jurisdiction was the subject matter of appeal before the Division Bench.
The Court posed two questions and the primary one pertained to the D
maintainability of Letters Patent Appeal. For the aforesaid purpose, the
appellate Bench thought it appropriate to pose the following two questions:-
"First, whether an order passed by the learned single Judge can
be said to have been made in the exercise of extraordinary powers
under Article 226 of the Constitution or in the exercise of E
supervisory jurisdiction under Article 227 of the Constitution.
Secondly, whether the order passed by the learned single Judge
can be said to have been passed in the exercise of criminal
jurisdiction within the meaning of Clause 15 ofthe Letters Patent."
54. The Division Bench referred to Umaji Keshao Meshram F
(supra), adverted to the decisions in Supreme Court Bar Association
v. Union of India and another35 and A.R. Antulay v. R.S. Nayak and
another3 6 (as Article 21 was also raised as an issue) and came to hold
that it would not be advisable to express final opinion on the question
whether the petitions filed by the petitioners can be said to be under
Article 226 or Article 227 of the Constitution. Proceeding on the other G
score, the Court analysed the various provisions of the CrPC, namely,
Sections 109, 200, 202, sub-section (3) of Section 156 and various clauses
34
(2000) 1 Gujarat Law Reports 206
"1993 (4) sec 409
36
AIR 1988 SC 1531 H
584 SUPREME COURT REPORTS [2017] 4 S.C.R.
A of the Letters Patent, distinguished the decision in State of Gujarat v.
Jayantilal Magan/al Pate/3 7 and distinguished the same by i10lding
that the observations of the Division Bench cannot be construed to mean
that when a petition is filed under Article 226 of the Constitution, LP.A.
would lie irrespective of the fact that such question might have arisen in
exercise of criminal jurisdiction.
B
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 Kasltiram Lavjibhai v. Narottamdas
Bechardas & others 38 wherein the Full Bench considered Articles 226
and 227 of the Constitution in the light of various decisions of this Court
C 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
D 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 Bltagwandas (supra) and opined thus:-
"80. In our considered opinion, in the instant case, the proceedings
can be said to be criminal proceedings inasmuch as, carried to its
conclusion, they may result into imprisonment, fine etc. as observed
E
by the Supreme Court in Narayana Row.
81. From the totality of facts and circumstances, we have no
hesitation in holding mat the learned single Judge has passed an
order in exercise of criminal jurisdiction. At the cost ofrepetition,
we reiterate what we have already stated earlier that the
F proceedings were of a criminal nature. Whether a criminal Court
takes cognizance of an offence or sends a complaint for
investigation under Sub-section (3) of Section 156 of the Code of
Criminal Procedure, 1973 does not make difference so far as the
nature of proceedings is concerned. Even if cognizance is not
G taken, that fact would not take out the case from the purview of
criminal jurisdiction.
82. In our judgment, a proceeding under Article 226 of the
Constitution arising from an order passed or made by a Court in
" 1995 (2) GLH 260
H "1978 GLR 1047 (FB)
RAM KISHAN FAUJI v. STATE OF HARYANA AND ORS. 585
[DIPAK MISRA, J.]
exercise or purported exercise of power under the Code of A
Criminal Procedure is still a 'criminal proceeding' within the
meaning of Clause 15 of the Letters Patent. A proceeding seeking
to avoid the consequences of a criminal proceeding initiated
under the Code of Criminal Procedure will continue to remain
'criminal proceeding' covered by the bracketed portion of Clause B
15 of the Letters Patent."
56. Being of this view, the Division Bench ruled that as Clause 15
of the Letters Patent expressly bars an appeal against the order passed
by a Single Judge of the High Court in exercise of criminal jurisdiction,
LPAs are not maintainable and, accordingly, dismissed the same.
c
57. From the aforesaid analysis, it is demonstrable that the Gujarat
High Court has opined that relying on the authority of this Court in
Ishwarlal Bhagwandas (supra), the issue whether the proceedings are
civil or not would depend upon the nature of the right violated and the ·
appropriate relief which might be claimed and not upon the nature of the
tribunal which has been invested to grant relief. The Division Bench D
further opined that even if cognizance is not taken in respect of a criminal
case, it would not take out the case from the purview of criminal
jurisdiction. Thus, it has been held by the Division Bench that when
there is a proceeding under Article 226 of the Constitution arising from
an order made by a Court in exercise of power under the Code of Criminal E
Procedure, it would be a criminal proceeding within the meaning of Letters
Patent.
58. The Full Bench of the High Court of Delhi in C.S. Agarwal v. ·
State & otlters 39 was dealing with a situation wherein a writ petition
was filed before the High Court under Article 226 of the Constitution of F
India read with Section 482 ofCr.P.C. seeking for appropriate writ for
quashing of the FIR. As the writ petition was dismissed by the learned
Single Judge, an intra-court appeal was preferred. A preliminary objection
was taken by the respondents as regards the maintainability of the LPA
contending that the judgment of the learned Single Judge was passed in
exercise of criminal jurisdiction and the Letters Patent Appeal against G
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
39
2011 (125) DRJ 241 (FB) H
586 SUPREME COURT REPORTS [2017] 4 S.C.R.
A entertaining any intra-court appeal. The Full Bench, analyzing various
decisions, opined thus:-
" ... proceedings under Article 226 of the Constitution woul.d be
treated as original civil proceedings only when it concerns civil
rights. A fortiori, if it concerns a criminal matter, then such
B proceedings would be original criminal proceedings. Letters Patent
would lie when the Single Judge decides the writ petition in
proceedings concerning civil rights. On the other hand, if these
proceedings are concerned with rights in criminal law domain,
then it can be saidthat the Single Judge was exercising his 'criminal
jurisdiction' while dealing with such a petition filed under Article
c 226 of the Constitution."
59. After so stating, the Full Bench referred to the Constitution
Bench decision in lshwarlal Bhagwandas (supra) and distinguished
the Full Bench decision of the Andhra High Court in Gangaram
Kandaram (supra) and noted the decision of the Division Bench of
D Gujarat High Court in Sanjeev Rajendrabhai Bhat (supra) and came
to hold as follows:-
"32. The test, thus, is whether criminal proceedings are pending
or not and the petition under Article 226 of the Constitution is
preferred concerning those criminal proceedings which could result
E in conviction and order of sentence.
33. When viewed from this angle, it is clear that if the FIR is not
quashed, it may lead to filing ofChallan by the investigating agency,
framing of charge and can result in conviction of order of sentence.
Writ of this nature filed under Article 226 of the Constitution.
F Seeking quashing of such an FIR would therefore be "criminal
proceedings" and while dealing with such proceedings, the High
Court exercises its "criminal jurisdiction"."
60. Being of this view, the Full Bench opined that the Letters
Patent Appeal was not maintainable. In this regard, learned counsel for
G the appellant has also drawn our attention to the Division Bench judgment
of the Delhi High Court in Vipul Gupta v. State & Ors4° wherein the
Division Bench, placing reliance on the Full Bench decision, has expressed
the view that though the writ petitions were not filed for quashing of FIR
as in the case of the Full Bench decision, yet the learned Single Judge
H 40
208 (2014) DLT 468 (DB)
RAM KISHAN FAUJI v. STATE OF HARYANA AND ORS. 587
[DIPAK MISRA, J.]
was exercising criminal jurisdiction, for the Lieutenant Governor of Delhi A
had agreed with the proposal not to press the application for withdrawal
of the criminal case under Section 321 of the Cr.PC. and allowed the
trial court to proceed on merits. In this factual backdrop, the Divi.sion
Bench opined:-
" ... Even though the challenge in the writ petitions was to a decision B
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 c
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 D
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 E
that if an appeal is barred under Clause 10 or Clause 15 of the Letters
Patent, as the case may be, no appeal will lie. The High Court ofAndhra
Pradesh, however, has held that when the power is exercised under
Article 226 of the Constitution for quashing of a criminal proceeding,
there is no exercise of criminal jurisdiction. It has distinguished the
proceeding for quashing of FIR under Section 482 CrPC and, in that F
context, has opined that from such an order, no appeal would lie. On the
contrary, the High Courts of Gujarat and Delhi, on the basis of the law
laid down by this Court in Ishwarla/ Bhagwandas (supra), have laid
emphasis on the seed of initiation of criminal proceeding,· the consequence
of a criminal proceeding and also the nature of relief sought before the G
Single Judge under Article 226 of the Constitution. The conception of
'criminal jurisdiction' as used in Clause 10 of the Letters Patent is not to
be construed in the narrow sense. It encompasses in its gamut the
inception and the consequence. It is the field in respect of which the
jurisdiction is exercised, is relevant. The contention that solely because
H
588 SUPREME COURT REPORTS [2017] 4 S.C.R.
A a writ petition is filed to quash an investigation, it would have room for
intra-court appeal and if a petition is filed under inherent jurisdiction
under Section 482 CrPC, there would be no space for an intra-court
appeal, would create an anomalous, unacceptable and inconceivable
situation. The provision contained in the Letters Patent does not allow or
. B permit such an interpretation. When we are required to consider a bar
or non-permissibility, we have to appreciate the same in true letter and
spirit. It confers jurisdiction as regards the subject of controversy or
nature of proceeding and that subject is exercise ofjurisdiction in criminal
matters. It has nothing to do whether the order has been passed in exercise
of extraordinary jurisdiction under Article 226 of the Constitution or
C inherent jurisdiction under Section 482 CrPC. In this regard, an example
can be cited. In the State ofUttar Pradesh, Section 438 CrPC has been
deleted by the State amendment and the said deletion has been treated
to be constitutionally valid by this Court in Kartar Singh v. State of
Punjab41 • However, that has not curtailed the extraordinary power of
D the High Court to entertain a plea of anticipatory bail as has been held in
Lal Kamlendra Pratap Singh v. State of Uttar Pradesh and otlters4 2
and Hema Mishra v. State of Uttar Pradesh and otlters43 • But that
does not mean that an order passed by the Single Judge in exercise of
Article 226 of the Constitution relating to criminal jurisdiction, can be
made the subject matter of intra-court appeal. It is not provided for and
·E 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.
F 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 inAdishwar
Jain v. Union of India and anotlter44 • In the said case, the question
arose with regard to the maintainability of Letters Patent Appeal, for the
G Single Judge had dismissed the writ of Habeas Corpus. The Division
Bench, dealing with the maintainability ofLPA, referred to Umaji Keshao
Meshram (supra) and extracted the following passage:-
" (1994 l 3 sec 569
"c2009) 4 sec 437
,, c2ot4) 4 sec 453
H 44
2006 Cri.LJ 3193
RAM KISHAN FAUJI v. STATE OF HARYANA AND ORS. 589
[DIPAK MISRA, J.]
"By Article 226 the power of issuing prerogative writs possessed A
by the Chartered High Courts prior to the commencement of the
Constitution has been made wider and more extensive and
conferred upon every High Court. The nature of the exercise of
the power under Article 226, however, remains the same as in the
case of the power of issuing prerogative writs possessed by the B
Chartered High Courts. A series of decision of this Court has
firmly established that proceeding under Article 226 is an original
proceeding and when it concerns civil rights, it is an original civil
proceeding."
64. On the aforesaid basis, the Division Bench ruled that in a
proceeding under Article 226 consisting of civil rights, the proceedings C
are civil in nature falling within the ambit of Clause 10 of the Letters
Patent. In the said case, the detention was under the COFEPOSAAct.
The Court observed that the said detention is purely preventive without
any trial in a criminal court and the challenge to such detention is for the
enforcement of a fundamental civil right and, therefore, a writ under D
Article 226 for issue of Habeas Corpus in such like matters cannot be
considered as a proceeding under criminal jurisdiction :ven though the
writ petition is identified as a criminal writ petition under the High Court
Rules and others. The said decision has to be carefully appreciated. The
nomenclature of a writ petition is not the governing factor. What is
. relevant is what is eventually being sought to be enforced. The Division E
Bench observed that as there is a preventive detention, there is a violation
of fundamental civil right. The said decision, as is noticeable, was
rendered in a different context. We are only inclined to say that the said
authority does not assist the proposition expounded by the learned counsel
for the State. F
65. In the case at hand, the writ petition was filed under Article
226 of the Constitution for quashing of the recommendation of the
Lokayukta. The said recommendation would have led to launching of
criminal prosecution, and, as the factual matrix reveals, FIR was registered
and criminal investigation was initiated. The learned Single Judge analysed G
the report and the ultimate recommendation of the statutory authJrity
and thought it seemly to quash the same and after quashing the same, as
he found that FIR had been registered, he annulled it treating the same
as a natural consequence. Thus, the effort of the writ petitioner was to
avoid a criminal investigation and the final order of the writ court is
H
590 SUPREME COURT REPORTS [2017] 4 S.C.R.
A quashment of the registration of FIR and the subsequent investigation.
In such a situation, to hold that the learned Single Judge, ia exrrcise of
jurisdiction under Article 226 of the Constitution, has passed an order in
a civil proceeding as the order that was challenged was that of the quasi-
judicial authority, that is, the Lokayukta, would be conceptually fallacious.
It is because what matters is the nature of the proceeding, and that is the
B
litmus test.
66. In view of the aforesaid prismatic reasoning, the irresistible
conclusion is that the Letters Patent Appeal was not maintainabl~ before
the Division Bench and, consequently, the order passed therein is wholly
unsustainable and, accordingly, it is set aside. However, as the State had
c been diligently agitating its grievance in a legal forum which it thought
had jurisdiction, we grant liberty to the State to assail the order of the
learned Single Judge in accordance with Jaw.
67. Consequently, the appeal is allowed and the impugned order is
set aside. However, liberty is granted to the State to challenge the order
D of the learned Single Judge. There shall be no order as to costs.
Kalpana K. Tripathy Appeal allowed.
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