HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 42
Case :- CRIMINAL MISC. WRIT PETITION No. - 17812 of 2015
Petitioner :- M/S V.S. Pharma Lucknow And Anr.
Respondent :- State Of U.P. And Another
Counsel for Petitioner :- Saurabh Basu,Vivek Srivastava
Counsel for Respondent :- Govt. Advocate,N.I. Jafri
Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Pramod Kumar Srivastava,J.
This petition has been filed with a prayer to issue a writ of certiorari for quashing FIR No. RC/DST/2013/A/0005 dated 28.05.2013 as also the chargesheet dated 17.12.2014 arising out of the NRHM Scam.
The petition is on behalf of M/s V.S. Pharma, Lucknow, through Sanjay Awasthi and others as petitioner no. 1 and Dr. Vijay Kumar Srivastava as petitioner no. 2. The affidavit has been sworn by Sri Sanjay Awasthi, the petitioner no. 1 and is dated 21st July, 2015 in support of the petition.
We find from the averments made in the writ petition that the petitioner has filed a copy of the FIR and has also filed a copy of the chargesheet dated 17.12.2014 that are Annexure - 1 to the writ petition. Not only this, the same annexure is also accompanied by the order of cognizance taken by the learned Special Judge, Anti-Corruption, CBI, Ghaziabad on 5th January, 2015. The cognizance order is against both the petitioners.
It does not appear to reason as to why a prayer for quashing the cognizance order has not been made, inasmuch as, what the petitioners are questioning are faulty investigation and non-compliance of the guidelines of the CBI manual but have prayed for quashing of the FIR and the chargesheet. The prayer which has been couched in a manner appears to have been done only with a view to avoid the normal remedy available to the petitioners by filing a petition under Section 482 Cr.P.C. after the chargesheet has been filed and a cognizance order has been passed. This petition therefore clearly seeks to overcome the cognizance order dated 5.1.2015 which has conveniently and deliberately not been challenged even though the relief prayed for, if granted, would amount to quashing of the order passed by the trial court taking cognizance. Thus, this petition under Article 226 of the Constitution in effect is seeking to avoid the entire proceedings including the cognizance order passed by a criminal court.
In our considered opinion, this issue cannot be now raised through a writ petition under Article 226 of the Constitution of India, once cognizance has been taken by the court and the proceedings are pending before a court of law for the reasons set out hereinafter.
There is yet another peculiar feature which deserves to be noted at this stage. The narration in the writ petition nowhere indicates the filing of a Special Leave to Appeal (Criminal) No. 833 of 2015 by the petitioner no. 1 before the Apex Court or the details of any order passed thereon, but in the list of dates and events at Page 1 and 2 at Item No. 4 and 5 a reference has been made to the aforesaid Special Leave Petition filed before the Apex Court.
In view of the aforesaid indication in the list of dates and events, it is evident that the petitioners deliberately did not disclose such facts on affidavit in the memo of writ petition. The court however has got the order downloaded through internet services passed in the said Special Leave to Appeal (Criminal) No. 833 of 2015, the leading petition of the present petitioner, where orders disposing of the petitions have been passed on 14th July, 2015 by the Apex Court on the said special leave petition alongwith other connected matters:-
"ITEM NO.14 COURT NO.2 SECTION II
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl.) No(s). 833/2015
(Arising out of impugned final judgment and order dated 16/01/2015 in AN No. 152/2015 passed by the High Court of Judicature at Allahabad, Lucknow Bench)
SANJAY AWASTHI Petitioner(s)
VERSUS
STATE OF UTTAR PRADESH AND ANR. Respondent(s)
CORAM : HON'BLE MR. JUSTICE T.S. THAKUR HON'BLE MR. JUSTICE V. GOPALA GOWDA HON'BLE MRS. JUSTICE R. BANUMATHI
UPON hearing the counsel the Court made the following
O R D E R
S.L.P. (Crl.) Nos. 4664/2015, 4654/2015, 4839/2015, 4892-4894/2015, 4832/2015, 5107/2015, 5274/2015, 3603/2015, 5029/2015, 5031/2015, 5116/2015 and CRLMP No. 10918/2015 in S.L.P.(Crl.) No. 3725/2015:
These matters are de-tagged.
List these matters on 21.07.2015.
IN REST OF THE MATTERS:
As many as 74 different cases have been registered by the Central Bureau of Investigation ("CBI") established under the Delhi Special Police Establishment Act for offences punishable under Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act and Sections 420, 120-B, 467, 468, 471 and other provisions of the Indian Penal Code ("IPC") against a very large number of Officials working in the U.P. State Health and Family Welfare Departments and against suppliers of drugs and medicines. The cases, it appears, came to be registered pursuant to a direction issued by the High Court of Allahabad in a Public Interest Litigation ("PIL") which brought to fore what is now known as National Rural Health Mission ("NRHM"). It is common ground that NRHM was launched on 12.04.2005 throughout the country to provide accessible, affordable and quality health care to the rural population, specially the vulnerable sections of society and to reduce the infant mortality ratio. The Scheme/Mission was to be implemented by the State Governments.
The prosecution case appears to be that between 2005 and 2011 a large sum of money said to be to the tune of Rs. 11,080.53 crores was allocated by the Government of India for the State of Uttar Pradesh, Ministry of Health and Family Welfare, out of which, a sum of Rs. 9,133.77 crores was in due course released. It is also the case of the prosecution that out of the amount so released a sum of Rs. 8,658.03 crores is said to have been spent on the Mission by the State Government.
Allegations among others of large scale irregularities, misappropriation of funds, fake billing and purchases at exorbitant rates led the High Court of Allahabad to direct an inquiry into the scam by the CBI, which in turn led to the registration of 74 Regular cases and 28 Preliminary inquiries by the CBI branches at SC-II, STF, Delhi, EOU.IV, SCB, Lucknow and Dehradun.Mr. Maninder Singh, learned Additional Solicitor General, appearing for the CBI submitted that investigation in as many as 56 cases, out of the above, has already been completed and charge sheets filed in as many as 46 cases. In 5 other cases, the CBI appears to have submitted closure reports, while sanction for prosecution is awaited in 5 other cases. All the preliminary inquiries are said to have been disposed of leaving just about 18 cases only in which investigation is currently in progress.
With the filing of the charge sheets before the Special Courts concerned, warrants appear to have been issued to the accused named therein for their appearance before the Courts concerned. Apprehending their arrest in connection with the said cases some of the petitioners appear to have approached the High Court of Allahabad in petitions filed under Section 482 of the Code of Criminal Procedure for quashing the charge sheets and the warrants issued for their arrest/production. These petitions were dismissed by the High Court with the direction that the petitioners ought to approach the trial court for redress. Petitioners in Special Leave Petitions Nos. 4229/2015, 4237/2015 and 4239/2015 however appear to have filed regular bail application before the trial court, which were rejected, whereupon the petitioners appear to have approached the High Court, who too concurred with the view taken by the trial court. Aggrieved by the orders passed by the High Court, the petitioners have filed the present special leave petitions for grant of protection against arrest/bail in the cases pending before the Trial Courts concerned.
When these petitions came up before us for preliminary hearing, notices were issued to the respondents and interim protection granted to the petitioners against arrest on the condition that they deposit with the trial court the amount stipulated in the orders passed by this Court. In some of these cases, we directed petitioners to furnish bail bonds to the satisfaction of the trial court besides deposit of the amount mentioned in the orders.
It is not in dispute that the petitioners have deposited the amount directed to be deposited. It is also not in dispute that wherever a direction was issued for the petitioners to furnish bail bonds, the requisite bail bonds have also been furnished by them to the Courts concerned.
Having heard learned counsel for the petitioners and Mr. Maninder Singh, learned Additional Solicitor General appearing for the CBI, we are of the view that these petitions can be disposed of with appropriate directions. It is noteworthy that the CBI had not chosen to arrest any one of the petitioners during the investigation. Investigation into the cases was completed and charge sheets filed without the agency facing any impediment whatsoever. There is in that view no compelling reason for the petitioners to be committed to custody at this stage. That apart the prosecution has cited a large number of witnesses in each charge sheet, which would imply that conclusion of the trial is likely to take time. There is no possibility of the petitioners jumping bail, as most if not all of them are serving doctors in the U.P. State Health and Family Welfare Department. In the circumstances even when the petitioners could have approached the trial court we see no reason to relegate them to that process at this stage which may only prolong their agony and lead to multiplicity of proceedings. In the result, we issue the following directions:
(I) Such of the petitioners as have not already furnished bail bonds to the satisfaction of the trial courts concerned shall do so within a period of two weeks from today in which event the protection against arrest shall continue but only subject to their furnishing such bonds.
(ii) The trial court(s) shall satisfy themselves about the deposit of the amount directed by us, in terms of our Order(s) passed in each one of the cases. In case deposit is not made as directed, the same shall be made within four weeks from the date the trial Court issues a direction to that effect after verification.
(iii) Liberty is reserved to the CBI to move the trial court concerned in case the amount already deposited by the petitioners does not match the amount on a proportionate basis that should be recovered from them having regard to the amount alleged to have been misappropriated or wrongfully paid/received. Should the petitioner(s) fail to deposit any such further amount directed by the trial court, the bail order granted in his/her favour shall stand cancelled without any further reference to this Court.
(iv) The trial court(s) shall be free to direct deposit of Passports by the accused-persons in such of the cases at it may consider just and proper.
(v) The petitioners shall not tamper with the evidence in any manner whatsoever and if they do so, the Court shall be free to cancel the bail granted to the accused concerned.
(vi) The amount deposited by the petitioners shall be remitted by the trial court(s) to the State Government, Department of Health and Family Welfare, for utilisation in the ongoing NRHM Scheme.
(vii) The trial court(s) shall endeavour to expedite the trial and shall be free to pass appropriate order(s) against the petitioners including an order withdrawing the concession of bail granted to them or any one of them, if the accused do not cooperate or otherwise resort to dilatory tactics.
The special leave petitions are disposed of with the above directions. We make it clear that the amount of deposit made by the petitioners in terms of the court's order shall have no bearing on the legitimacy and/or legality of the prosecution launched by the CBI.
(S. K. RAKHEJA) (VEENA KHERA)
COURT MASTER COURT MASTER"
According to the aforesaid judgment, the appellants had approached the High Court by filing a Section 482 Cr.P.C. Application for quashing the chargesheet and warrants issued, but the same was dismissed by the High Court, whereafter the above mentioned special leave petitions appear to have been filed. The Apex Court accordingly taking notice of such facts appears to have issued the directions granting relief of bail to the appellants including the petitioner.
As against Column No. 5 of the list of dates and events in the present petition, the petitioners' counsel have stated that since the legal questions regarding validity of FIR and power to investigate in contravention of the guidelines of the CBI Manual, had not been raised before the Apex Court, therefore, the present writ petition is being filed.
We are clearly of the opinion that it was open to the petitioners to have raised any such issues raised herein either in a Section 482 Cr.P.C. Application which according to the Apex Court judgment had already been done whereafter Sanjay Awasthi, the petitioner no. 1 approached the Apex Court and the order above quoted was passed. Thus such additional issues that are being canvassed could and ought to have been raised which were not raised according to the petitioner himself.
In such circumstances, we cannot entertain this petition for raising any such issue after the cognizance order has been passed. The entire matter now rests with the court hearing the case and if any person is aggrieved by the passing of any intervening orders, it is open to him to avail of such remedy which may be available in law and if permissible under Section 482 Cr.P.C. and 483 Cr.P.C. The present writ petition therefore does not deserve to be entertained at all for the aforesaid reasons and we accordingly decline the relief prayed for by the petitioners herein.
At the same time the court has come across judgments of learned Single Judges of this court holding that orders passed on the judicial side by criminal courts pending final judgment are not amenable to the writ jurisdiction under Article 226 of the Constitution of India. In the present case also as observed above, the petitioners even though have not incorporated a specific prayer, yet the relief is couched so as to seek annulling of the proceedings of the trial court, under the garb of quashing of FIR and chargesheet, including the cognizance order dated 5.1.2015 and the consequential orders passed by the trial court which are judicial orders. The following judgments by the learned Single Judges of this Court have been noticed by us and are quoted hereinunder:-
1. Banaspati Singh & Others Vs. Spl. Session Judge & Others, Criminal Misc. Writ Petition No. 6016 of 2001, decided on 3.4.2015:
Hon'ble Sudhir Agarwal,J.
1. Sri K.M. Asthana, learned counsel for the petitioner and perused the record.
2. The order impugned in this writ petition is dated 23.12.1999 passed by Incharge Chief Judicial Magistrate, Jalaun at Orai under Section 156(3) Cr.P.C. directing police to register first information report and the order dated 21.07.2001 passed by Revisional Court dismissing petitioners' revision.
3. Learned A.G.A., appearing for State, at the outset, submitted that in respect of judicial orders passed by criminal courts, writ petition under Article 226 would not lie and placed reliance on a recent three Judges decision of Apex Court in Radhey Shyam and another Vs. Chhabi Nath and others, (Civil Appeal No. 2548 of 2009), decided on 26.02.2015, wherein a reference was made to Large Bench, "whether judicial orders of Civil Court are not amenable to writ jurisdiction under Article 226 and whether jurisdiction under Article 227 is distinct from jurisdiction under Article 226 of the Constitution".
4. The Larger Bench answered first question in affirmative holding that against judicial orders of Civil Courts writ petition under Article 226 would not lie. It also held that jurisdiction under Article 227 is distinct from Article 226. The basic reason assigned by the Court is that against the orders of Tribunal, writ petition under Article 226 may be filed but in respect of orders of Civil Courts, since a specific provision is provided under Article 227, the same cannot be challenged under Article 226. Drawing parity therefrom the learned A.G.A. submitted that judicial orders passed by Criminal Courts also comes within the same category as judicial orders passed by Civil Courts. Therefore, writ petition under Article 226 would not lie.
5. When confronted with aforesaid position, Sri K.M. Asthana, learned counsel appearing for revisionists, could not give any reply and fairly stated that apparently the law laid down by Apex Court in Radhy Shyam (supra) and the reasoning given therein would also be attracted in the case of judicial orders passed by Criminal Courts.
6. In view thereof, the writ petition under Article 226 of the Constitution, in respect of judicial orders passed by Criminal Court, would not lie. It can be challenged in a petition filed under Article 227, provided the grounds and limitations thereunder are satisfied. This writ petition challenging judicial orders passed by Criminal Court has been filed under Article 226 of the Constitution, therefore, apparently it is not maintainable.
7. Even otherwise, having gone through the impugned order as also the pleadings and grounds taken in the writ petition, I do not find any error apparent on the face of record in the order impugned in this writ petition warranting interference.
8. Dismissed. Interim order, if any, stands vacated.
Order Date :- 3.4.2015"
2. Chandra Shekhar @ Ram Dheeraj Vs. State of U.P. & Others, Criminal Misc. Writ Petition No. 6143 of 2001, decided on 1.5.2015:-
"Hon'ble Sudhir Agarwal,J.
1. Heard Sri Pramod Kumar, holding brief of Anita Tripathi, learned counsel for petitioner and perused the record.
2. Charge-sheet was filed against petitioner where against his application for discharge was rejected by Court below and petitioner, thereafter, preferred revision which has been dismissed by District and Sessions Judge by impugned order dated 10.09.2001.
3. Learned A.G.A., appearing for State, at the outset, submitted that in respect of judicial orders passed by criminal courts, writ petition under Article 226 would not lie and placed reliance on a recent three Judges decision of Apex Court in Radhey Shyam and another Vs. Chhabi Nath and others 2015 (3) SCALE 88, wherein the following reference was made to Large Bench, "whether judicial orders of Civil Court are not amenable to writ jurisdiction under Article 226 and whether jurisdiction under Article 227 is distinct from jurisdiction under Article 226 of the Constitution".
4. The Larger Bench answered first question in affirmative holding that against judicial orders of Civil Courts writ petition under Article 226 would not lie. It also held that jurisdiction under Article 227 is distinct from Article 226. The basic reason assigned by Court is that against orders of Tribunal, writ petition under Article 226 may be filed but in respect of orders of Civil Courts, since a specific provision is provided under Article 227, the same cannot be challenged under Article 226. Drawing parity therefrom the learned A.G.A. submitted that judicial orders passed by Criminal Courts also comes within the same category as judicial orders passed by Civil Courts, therefore, writ petition under Article 226 would not lie.
5 When confronted with aforesaid position, learned counsel for petitioner could not give any reply and fairly stated that apparently the law laid down by Apex Court in Radhy Shyam (supra) and the reasoning given therein would also be attracted in the case of judicial orders passed by Criminal Courts.
6. In view thereof, the writ petition under Article 226 of the Constitution, in respect of judicial orders passed by Criminal Court, would not lie. It can be challenged in a petition filed under Article 227, provided the grounds and limitations thereunder are satisfied. This writ petition challenging judicial orders passed by Criminal Court has been filed under Article 226 of the Constitution, therefore, apparently it is not maintainable.
7. Even otherwise, having heard learned counsel for petitioner and going through the impugned order as also pleadings and grounds taken in writ petition, I do not find any error apparent on the face of record in the order impugned in this writ petition warranting interference.
8.Dismissed.
9. Interim order, if any, stands vacated.
Order Date :- 1.5.2015 "
3. Ramakant Pathak & Others Vs. State of U.P. & Another, Criminal Misc. Writ Petition No. 6820 of 2003, decided on 15.5.2015:-
"Hon'ble Sudhir Agarwal,J.
1. Heard Shri Manish, holding brief of Shri B.N.Singh, learned counsel for petitioners and perused the record.
2. This writ petition has been filed against summoning order dated 8.8.2002 passed by the Civil Judge, (Junior Division), Mauranipur summoning the accused under sections 352, 504,and 506 I.P.C.
3. Learned A.G.A., appearing for State, at the outset, submitted that in respect of judicial orders passed by criminal courts, writ petition under Article 226 would not lie and placed reliance on a recent three Judges decision of Apex Court in Radhey Shyam and another Vs. Chhabi Nath and others 2015 (3) SCALE 88, wherein the following reference was made to Large Bench, "whether judicial orders of Civil Court are not amenable to writ jurisdiction under Article 226 and whether jurisdiction under Article 227 is distinct from jurisdiction under Article 226 of the Constitution".
4. The Larger Bench answered first question in affirmative holding that against judicial orders of Civil Courts writ petition under Article 226 would not lie. It also held that jurisdiction under Article 227 is distinct from Article 226. The basic reason assigned by Court is that against orders of Tribunal, writ petition under Article 226 may be filed but in respect of orders of Civil Courts, since a specific provision is provided under Article 227, the same cannot be challenged under Article 226. Drawing parity therefrom the learned A.G.A. submitted that judicial orders passed by Criminal Courts also comes within the same category as judicial orders passed by Civil Courts, therefore, writ petition under Article 226 would not lie.
5. When confronted with aforesaid position, learned counsel for petitioners could not give any reply and fairly stated that apparently the law laid down by Apex Court in Radhey Shyam (supra) and the reasoning given therein would also be attracted in the case of judicial orders passed by Criminal Courts.
6. In view thereof, the writ petition under Article 226 of the Constitution, in respect of judicial orders passed by Criminal Court, would not lie. It can be challenged in a petition filed under Article 227, provided the grounds and limitations thereunder are satisfied. This writ petition challenging judicial orders passed by Criminal Court has been filed under Article 226 of the Constitution, therefore, apparently it is not maintainable.
7. Even otherwise, having heard heard learned counsel for petitioners and going through the impugned order as also pleadings and grounds taken in writ petition, I do not find any error apparent on the face of record in the order impugned in this writ petition warranting interference.
8. Dismissed.
9. Interim order, if any, stands vacated.
Order Date :- 15.5.2015"
4. Ravindra Sharma Vs. State of U.P. And Another, Criminal Misc. Writ Petition No. 20094 of 2014, decided on 16.7.2015 "Hon'ble Pankaj Naqvi,J.
Heard Sri Ram Babu Sharma, learned counsel for petitioner and the learned A.G.A.
This writ petition under Article 226 of the Constitution of India is preferred against the order of the courts below, whereby petitioner has been summoned for offences under Sections 406, 420, 504, 506 IPC.
Sri Sharma, learned counsel for the petitioner in all fairness states that in view of the recent decision of the Apex Court in the case of Radhey Shyam vs. Chhabi Nath reported in 2015 (3) ADJ 210 (SC), this writ petition arising out of the order passed by the judicial courts, is not maintainable.
This writ petition is dismissed as not maintainable.
Office to return the certified copy of the impugned orders to learned counsel for the petitioners.
Order Date :- 16.7.2015"
5. Bhairav Prasad Vs. State of U.P. & Others, Criminal Misc. Writ Petition No. 8704 of 2011, decided on 15.7.2015:-
"Hon'ble Pankaj Naqvi,J.
Supplementary affidavit filed today is taken on record.
Heard Sri Pramod Kumar Srivastava, learned counsel for petitioner and the learned A.G.A.
This writ petition is directed against the orders of the courts below, whereby an application for discharge filed by the petitioner is rejected.
Sri Verma, learned counsel for the petitioner in all fairness states that in view of the recent decision of the Apex Court in the case of Radhey Shyam vs. Chhabi Nath reported in 2015 (3) ADJ 210 (SC), this writ petition arising out of the order passed by the judicial courts, is not maintainable.
Even otherwise, having heard learned counsel for petitioner and going through the impugned order as also pleadings and grounds taken in writ petition, I do not find any error apparent on the face of record in the order impugned in this writ petition warranting interference.
This writ petition is dismissed.
However, the bail application of applicant shall be considered as expeditiously as possible, in accordance with law.
Order Date :- 15.7.2015"
The issue of a writ petition being maintainable or a Section 482 Cr.P.C. Application being maintainable was dealt with in two judgments of this court. A seven Judges full bench in the case of Ram Lal Yadav & others Vs. State of U.P. and others, 1989 Cri.L.J 1013 came to the conclusion that the powers of the police to investigate a crime, cannot be interfered with in the inherent exercise of powers under Section 482 Cr.P.C. and consequently, if an FIR had to be challenged before the filing of a chargesheet, the High Court can always issue a writ of mandamus under Article 226 directing the police officer not to misuse his legal powers. In other words, a writ petition could be entertained for quashing of the FIR. It may be kept in mind that in the State of U.P. there are no provisions enforced for anticipatory bail.
The issue as to whether a writ petition would be maintainable, even for quashing of a chargesheet came to be answered by a division bench of this Court in the case of Atique Ahmed, M.L.A. Vs. State of U.P. and others, 2001 (43) ACC 710, where it was held that Article 226 of the Constitution of India could be invoked for quashing of proceedings but very sparingly and with a circumspection in the rarest of rare cases. However, while proceeding to so hold, the said division bench relied on a five judges full bench of the Patna High Court in the case of Surendra Singh Vs. State of Bihar, 1991 Cr.L.J. 3040 and also on a two judges decision of the Apex Court in the case of M/s Pepsi Foods Limited vs. Special Judicial Magistrate, AIR 1998 SC 128. While quoting the said decision of M/s Pepsi Foods Ltd.(supra), the court noted the observations in relation to the exercise of powers under Article 226 and 227 of the Constitution of India as well as the inherent powers under Section 482 Cr.P.C. of the Code. It was held in the aforesaid decision of the Apex Court that the exercise of powers under Article 227 is not only a power of Superintendence, or of an administrative nature, but is also of a judicial nature, which is exercised to prevent the abuse of the process of the law by the inferior courts and to see that the stream of administration of justice remains clean and pure.
It was further observed that the powers under Article 226 and 227 of the Constitution as well as under Section 482 Cr.P.C. of the Code, have no limits, but more the power more due and care and caution is to be exercised while invoking such powers. It was also observed that it would not be necessary to invoke provisions of Article 226 always if the exercise of powers can be made under Article 227 or Section 482 Cr.P.C. Further it was observed that the nomenclature under which the petition is filed may not be relevant and if the court finds that it cannot invoke jurisdiction under Article 226 then the petition can either be treated under Article 227 or Section 482 Cr.P.C. The court went on to reiterate the principles in the case of State of Haryana Vs. Bhajan Lal, 1991 (28) ACC 11 (SC).
Thus the aforesaid judgment did indicate that a writ petition if could not be entertained in the exercise of powers under Article 226 of the Constitution then the nomenclature would make no difference if the powers could be exercised within the parameters under Article 227 of the Constitution of India or under Section 482 Cr.P.C. This was a clear case in relation to exercise of powers by the High Court in criminal matters and arising out of orders passed by Criminal Courts.
The situation which has arisen here is that the learned Single Judges in the judgments quoted above have proceeded to apply the principles enunciated by a three Judges' decision in the case of Radhey Shyam and another vs. Chhabi Nath and others, (2015) 5 SCC 423 to dismiss writ petitions arising out of orders passed by criminal courts. The said decision in the case of Radhey Shyam has also found approval by another latest decision of the Apex Court which is a two judges decision in the case of Sh Jogendrasinhji Vijaysinghji Vs. State of Gujarat and others, Civil Appeal No. 2374 of 2015, decided on 6th July, 2015.
What has to be noticed is that the three judges decision in Radhey Shyam's case went on to hold that the ratio in the case of Surya Dev Rai Vs. Ram Chander Rai, (2003) 6 SCC 675, which was in relation to an order of a Civil Court came up for consideration and the following reference order was formulated for being placed before a larger bench to consider the correctness or otherwise of the law laid down in the case of Surya Dev Rai (supra). The referring order which is reported in (2009) 5 SCC 616 is extracted from the decision of Radhey Shyam (supra) which is as follows:-
"The reference order, inter alia, reads: (Radhey Shyam case, SCC p. 624, paras 30-33)
30. .........Therefore, this Court unfortunately is in disagreement with the view which has been expressed in Surya Dev Rai insofar as correction of or any interference with judicial orders of civil court by a writ of certiorari is concerned.
31. Under Article 227 of the Constitution, the High Court does not issue a writ of certiorari. Article 227 of the Constitution vests the High Courts with a power of superintendence which is to be very sparingly exercised to keep tribunals and courts within the bounds of their authority. Under Article 227, orders of both civil and criminal courts can be examined only in very exceptional cases when manifest miscarriage of justice has been occasioned. Such power, however, is not to be exercised to correct a mistake of fact and of law.
32. The essential distinctions in the exercise of power between Articles 226 and 227 are well known and pointed out in Surya Dev Rai and with that we have no disagreement. But we are unable to agree with the legal proposition laid down in Surya Dev Rai that judicial orders passed by a civil court can be examined and then corrected/reversed by the writ court under Article 226 in exercise of its power under a writ of certiorari. We are of the view that the aforesaid proposition laid down in Surya Dev Rai, is contrary to the ratio in Mirajkar and the ratio in Mirajkar has not been overruled in Rupa Ashok Hurra [2002 (4) SCC 388].
33. In view of our difference of opinion with the views expressed in Surya Dev Rai, matter may be placed before His Lordship the Hon'ble the Chief Justice of India for constituting a larger Bench, to consider the correctness or otherwise of the law laid down in Surya Dev Rai on the question discussed above."
The court while proceeding to answer the reference proceeded to observe in Paragraph 26 as follows:-
"26. The Bench in Surya Dev Rai also observed in para 25 of its judgment that distinction between Articles 226 and 227 stood almost obliterated. In para 24 of the said judgment distinction in the two articles has been noted. In view thereof, observation that scope of Article 226 and 227 was obliterated was not correct as rightly observed by the referring Bench in Para 32 quoted above. We make it clear that though despite the curtailment of revisional jurisdiction under Section 115 CPC by Act 46 of 1999, jurisdiction of the High Court under Article 227 remains unaffected, it has been wrongly assumed in certain quarters that the said jurisdiction has been expanded. Scope of Article 227 has been explained in several decisions including Waryam Singh vs. Amarnath, AIR 1954 SC 215, Ouseph Mathai vs. M. Abdul Khadir, (2002) 1 SCC 319, Shalini Shyam Shetty vs. Rajendra Shankar Patil, (2010) 8 SCC 329 and Sameer Suresh Gupta vs. Rahul Kumar Agarwal, (2013) 9 SCC 374. In Shalini Shyam Shetty, this Court observed: (SCC p. 352, paras 64-67) "64. However, this Court unfortunately discerns that of late there is a growing trend amongst several High Courts to entertain writ petition in cases of pure property disputes. Disputes relating to partition suits, matters relating to execution of a decree, in cases of dispute between landlord and tenant and also in a case of money decree and in various other cases where disputed questions of property are involved, writ courts are entertaining such disputes. In some cases the High Courts, in a routine manner, entertain petitions under Article 227 over such disputes and such petitions are treated as writ petitions.
65. We would like to make it clear that in view of the law referred to above in cases of property rights and in disputes between private individuals writ court should not interfere unless there is any infraction of statute or it can be shown that a private individual is acting in collusion with a statutory authority.
66. We may also observe that in some High Courts there is a tendency of entertaining petitions under Article 227 of the Constitution by terming them as writ petitions. This is sought to be justified on an erroneous appreciation of the ratio in Surya Dev and in view of the recent amendment to Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999. It is urged that as a result of the amendment, scope of Section 115 CPC has been curtailed. In our view, even if the scope of Section 115 CPC is curtailed that has not resulted in expanding the High Court's power of superintendence. It is too well known to be reiterated that in exercising its jurisdiction, High Court must follow the regime of law.
67. As a result of frequent interference by the Hon'ble High Court either under Article 226 or 227 of the Constitution with pending civil and at times criminal cases, the disposal of cases by the civil and criminal courts gets further impeded and thus causing serious problems in the administration of justice. This Court hopes and trusts that in exercising its power either under Article 226 or 227, the Hon'ble High Court will follow the time honoured principles discussed above. Those principles have been formulated by this Court for ends of justice and the High Courts as the highest courts of justice within their jurisdiction will adhere to them strictly."
A perusal of the referring order and a perusal of Paragraph 26 extracted and highlighted hereinabove, would demonstrate that reference has been made to disposal of cases under Article 226 or 227 of the Constitution of India in relation to orders passed by the Civil and Criminal Courts. However, while answering the question finally, the aforesaid three judges decision in Radhey Shyam's case (supra) states as follows in Paragraph 27 to 29.3:-
"27. Thus, we are of the view that judicial orders of civil courts are not amenable to a writ of certiorari under Article 226. We are also in agreement with the view of the referring Bench that a writ of mandamus does not lie against a private person not discharging any public duty. Scope of Article 227 is different from Article 226.
28. We may also deal with the submission made on behalf of the respondent that the view in Surya Dev Rai stands approved by larger Benches in Shail Vs. Manoj Kumar, (2004) 4 SCC 785, Mahendra Saree Emporium(2) Vs. G.V. Srinivasa Murthy, (2005) 1 SCC 481 and Salem Advocate Bar Assn (2) Vs. Union of India, (2005) 6 SCC 344 and on that ground correctness of the said view cannot be gone into by this Bench. In Shail, though reference has been made to Surya Dev Rai, the same is only for the purpose of scope of power under Article 227 as is clear from para 3 of the said judgment. There is no discussion on the issue of maintainability of a petition under Article 226. In Mahendra Saree Emporium, reference to Surya Dev Rai is made in para 9 of the judgment only for the proposition that no subordinate legislation can whittle down the jurisdiction conferred by the Constitution. Similarly, in Salem Bar Assn. in para 40, reference to Surya Dev Rai is for the same purpose. We are, thus, unable to accept the submission of learned counsel for the respondent.
29. Accordingly, we answer the question referred as follows :
29.1. Judicial orders of civil court are not amenable to writ jurisdiction under Article 226 of the Constitution.
29.2. Jurisdiction under Article 227 is distinct from jurisdiction from jurisdiction under Article 226.
29.3. Contrary view in Surya Dev Rai is overruled."
A perusal of the said penultimate paragraph clearly indicates that judicial orders of the Civil Court are not amenable to writ jurisdiction under Article 226 of the Constitution and the contrary view of Surya Dev Rai stands overruled but the words "Criminal Courts" are not mentioned.
The question that now arises for being considered is that neither the case of Surya Dev Rai (supra) nor the case of Radhey Shyam (supra) related to the exercise of powers by a criminal court and its challenge raised in a writ petition under Article 226 of the Constitution of India or the remedy under Article 227 of the Constitution or under Section 482 Cr.P.C.
The issue of correctness or otherwise of the entire judgment in Radhey Shyam's case (supra) was again argued at length before a learned Single Judge of this Court in Writ Petition No. 11761 of 2015, Thakur Prasad Vs. Beni Prasad and others. The writ petition following the ratio of Radhey Shyam's case which was under Article 226 was dismissed on 25th March, 2015 but made an observation in Paragraphs 42 to 44 as follows:-
"42.In such view of the matter, following the law laid down in Radhey Shyam (supra), it is held that a writ petition, arising out of proceedings or judicial orders of civil courts is not maintainable, under Article 226 of the Constitution of India.
43.However, following the ratio laid down in Radhey Shyam (supra), it is held that supervisory jurisdiction of this Court, under Article 227 of the Constitution of India, is available in matters, arising out of proceedings/judicial orders of civil courts, subject to its limited scope, elucidated in Radhey Shyam (supra), relying upon Waryam Singh's case and Shalini Shyam Shetty's case, (supra), and the Registry of this Court is directed to act, accordingly.
44.Since the present petition is filed, under Article 226 of the Constitution of India, against the judicial order passed by the civil court, therefore, the same is not maintainable, and is, accordingly, dismissed."
Thus what appears is that firstly the issue of orders passed by Criminal Courts and the exercise of powers by the High Court in criminal matters was not the exact issue raised in the case of Radhey Shyam (supra). The judgment in the case of Radhey Shyam also does not appear to have noticed the ratio of the Apex Court decision in the case of M/s Pepsi Foods Limited & another Vs. Special Judicial Magistrate and others, AIR 1998 SC 128. The learned Single Judges of this Court who have dismissed the writ petitions on the ground that a writ petition under Article 226 of the Constitution would not be maintainable against a judicial order passed by a criminal court have also not referred to the judgment in the case of M/s Pepsi Foods Ltd. (supra) but the fact remains they have held that it can be challenged in a writ petition under Article 227 provided the grounds of limitations therein are satisfied. There is yet another constitutional dimension about a citizen enforcing his rights of judicial review and waiver of constitutional remedies that directly touch upon the issue of denial of such remedies resulting in hitting the basic structure of the Constitution. This issue now in the wake of decisions that have come forth need not be gone into as it is not a point of challenge in the present writ petition. The dimensions that seek to touch not only the basic structure doctrine but also the fundamental rights guaranteed under Article 14, 19, 20 and 21 of the Constitution of India for a person facing criminal prosecution is also not the issue raised herein and therefore this court refrains from entering into these questions.
However, the judgment in the case of M/s Pepsi Food Ltd. (supra), where the issue of nomenclature has been discussed and it has been held that a nomenclature would not make any difference and the court is not debarred from exercising its inherent jurisdiction if it otherwise possesses, does not appear to have been considered. In view of the decision in the case of M/s Pepsi Foods Ltd. (supra), a petition under Section 482 Cr.P.C. can be resorted to and this aspect therefore deserves to be clarified that even if a petition under Article 226 is held to be not maintainable as per the decision aforesaid, in appropriate cases a Section 482 Cr.P.C. application can be filed which is a separate statutory remedy apart from the constitutional remedy in appropriate cases under Article 227 of the Constitution of India.
We therefore make it clear that the jurisdiction of the High Court to entertain petitions under Article 227 subject to the legal limitations as enunciated by the Apex Court, and petitions under Section 482 Cr.P.C. is not diluted by Radhey Shyam's (supra) decision as the judgment in the case of M/s Pepsi Foods Ltd. (supra) has not been overruled therein. We also approve of the view taken by the Calcutta High Court in the case of Scottlane Poverty Eradication Centre and another Vs. State of West Bengal and others, W.P. 14592 (W) of 2012, decided on 17.05.2013 and the decision in the case of Indrani Chakraborty Vs. State of West Bengal and others, W.P. No. 7378 (W) of 2014, decided on 08.09.2014.
A copy of this judgment shall be circulated to the reporting section of the High Court both at Allahabad and Lucknow by the Registrar General for correct stamp reporting as to the entertaining of writ petitions and Section 482 Cr.P.C. applications arising out of judicial orders passed by all Subordinate Criminal Courts in the light of above after obtaining appropriate orders that may be necessary from Hon'ble the Chief Justice.
Consequently, for all the reasons aforesaid and having clarified the law as indicated above no relief can be granted to the petitioners as this petition has also been captioned and framed as a writ petition under Article 226 of the Constitution of India practically for annulling the cognizance order passed by the trial court.
The writ petition is dismissed with the aforesaid observations.
Order Date :- 24.7.2015 Sahu