Lakshmi Padma Priya Anjana Devi ... vs The State Of Andhra Pradesh
2022 Latest Caselaw 2018 AP

        IN THE HIGH COURT OF ANDHRA PRADESH : AMARAVATI


   HON'BLE MR. JUSTICE PRASHANT KUMAR MISHRA, CHIEF JUSTICE
                                      AND
           HON'BLE MR. JUSTICE M. SATYANARAYANA MURTHY


                        WRIT APPEAL NO.145 OF 2022
                       (Proceedings through Physical mode)

   W.A.No.145 of 2022

   Lakshmi Padma Priya Anjana Devi Thallam,
   w/o Uma Sankara Gupta
   Flat No.502, Satya Sai Towers
   Nagarampalem,
   Guntur District                                       ..... Appellant

        Versus

   The State of Andhra Pradesh,
   Rep. by its Principal Secretary (Home),
   Secretariat, Velagapudi,
   Amaravati and 3 others                                .... Respondents

   Counsel for the Appellant           :     Mr. R. Siva Sai Swarup

   Counsel for Respondent Nos.1 to 3 :       Government Pleader for Home

   Counsel for Respondent No.4         :     Mr.Maheswara Rao Kunchem

                                  JUDGMENT

Dt.26.04.2022 (Per M. Satyanarayana Murthy, J)

1) Aggrieved by the order passed by the learned single Judge in

W.P.No.31279 of 2021 dated 18.01.2022, the present writ appeal is

preferred under Clause 15 of Letters Patent by the Appellant/accused in

the writ petition.

2) The appellant herein is the writ petitioner and the respondents herein

were the respondents in the writ petition. For the sake of convenience and

to avoid confusion, the parties will be referred as arrayed in the writ

petitions.

CJ & MSM,J WA_145_2022

3) The petition was filed under Article 226 of the Constitution of India,

claiming writ of certiorari to call for the records pertaining to docket order

dated 01.12.2021 passed in C.C.No.3075 of 2021 on the file of the

V Additional Junior Civil Judge, Guntur, and to declare the order of

issuance of NBW straightaway in a case under Section 138 of the

Negotiable Instruments Act, for non-appearance of the petitioner on the

date of first hearing, as illegal and unconstitutional and consequently,

quash the said docket order, dated 01.12.2021 and direct the police not

to execute the said NBW issued against the petitioner and thus,

questioned the docket order dated 01.12.2021.

4) The petitioner is the sole accused in C.C.No.3075 of 2021 on the file of

the V Additional Junior Civil Judge, Guntur. He has been facing

prosecution in the said case for the offence punishable under Section 138

of the Negotiable Instruments Act. By the docket order dated 01.12.2021,

the learned Additional Junior Civil Judge, owing to the absence of the

petitioner on the date of the first appearance of the accused, issued NBW

against the accused and posted the calendar case to 07.01.2022. The

same was assailed before the Court on the ground that, as per the dictum

laid down by the Apex Court in the case of Satender Kumar Antil v.

CBI1, the Court cannot directly at the first instance issue NBW against

the accused and the Court has to issue a bailable warrant first for

physical appearance of the accused. Therefore, based on the principle laid

down in the above judgment, it is contended before the learned single

Judge that as the trial Court without issuing any bailable warrant, issued

NBW against the petitioner, the impugned docket order dated 01.12.2021

is unsustainable under law, illegal, arbitrary and requested to issue a

direction as stated above.

Special Leave to Appeal (Crl.) No.5191 of 2021 dated 07.10.2021 CJ & MSM,J WA_145_2022

5) Upon hearing argument of learned counsel for the petitioner

Sri Siva Sai Swarup and Sri K. Maheswara Rao for Respondent No.4, the

learned single Judge disposed of the writ petition with following direction:

Therefore, the Writ Petition is disposed of with a direction to the petitioner to appear before the trial Court to face the trial on or before 05.02.2022 and file an application for recall/cancellation of NBW issued against him. In case the petitioner surrenders before the trial Court, as directed supra, and files an application for recall/cancellation of NBW, the trial Court shall consider the same and pass appropriate order accordingly on the said application. Till the petitioner appears before the trial Court as directed supra and files an application for recall/cancellation of NBW, the NBW that was issued against him stands suspended. No costs.

6) Aggrieved by the order passed by the learned single Judge, the present

writ appeal under Clause 15 of the Letters Patent is filed, almost

reiterating the grounds urged in the writ petition, while alleging that the

learned single Judge did not consider the action of the V Additional

Junior Civil Judge, Guntur in issuing Non Bailable Warrant without

issuing Bailable Warrant to secure the presence of the accused, for the

offence punishable under Section 138 of the Negotiable Instruments Act,

which is criminal in nature.

7) It is further contended that, in view of the order passed by the

V Additional Junior Civil Judge, Guntur, straight-away issuing Non

Bailable Warrant against the accused without following the judgment of

the Hon'ble Apex Court in Satender Kumar Antil v. CBI (referred supra)

is a serious illegality, but the learned single Judge instead of allowing the

writ petition, disposed of the same with a further direction to the writ

petitioner to approach the Trial Court to face the trial where the case is

pending, by filing a petition to recall the Warrant while keeping the

Warrant suspended for specific time.

8) The serious contention raised before this Court is that, in a calendar case

for the offence punishable under Section 138 of the Negotiable CJ & MSM,J WA_145_2022

Instruments Act, issue of summons is a general practice and issue of Non

Bailable Warrant for non-appearance is a matter of serious concern,

which will cause prejudice to the rights of the petitioner guaranteed under

Article 21 of the Constitution of India and it is contrary to the law laid

down by the Apex Court in Indian Bank Association vs. Union of

India2, where the Court held that, summons must be by way of post or

by way of e-mail or through a police officer only. Quoting the said

judgment, High Court of Andhra Pradesh at Amaravati issued ROC

No.14/SO/2022 dated 10.01.2022 under the heading Circular No.1/2022

- Practice Directions, wherein, Direction No.12 mentioned the procedure

for serving summons. But, giving go-by to the practices, the V Additional

Junior Civil Judge, Guntur, issued Non Bailable Warrant and without

considering the same, the learned single Judge issued the direction in the

writ petition.

9) Whereas, Sri K. Maheswara Rao, learned counsel appearing for

Respondent No.4, would submit that the writ appeal itself is not

maintainable. Warrant was issued by the V Additional Junior Civil Judge,

Guntur, which is challenged by way of writ petition under Article 226 of

the Constitution of India. While exercising criminal jurisdiction, the

learned single Judge disposed of the writ petition with certain direction.

When once the learned single Judge exercised criminal jurisdiction under

Article 226 of the Constitution of India, Writ Appeal under Clause 15 of

Letters Patent is not maintainable and relied on the judgment of the

Hon'ble Apex Court in Ram Kishan Fauji vs. State of Haryana3, when

writ petition is filed restraining the police to execute the Warrant

entrusted to them for arrest of the petitioner and produce him before the

AIR 2014 SC 2528

(2017) 5 SCC 533 CJ & MSM,J WA_145_2022

Court, the police/authorities cannot be restrained and it is nothing but

an intervention in the process of criminal trial by this Court, which is

impermissible under law and that the writ appeal is not maintainable, as

the order in the writ petition was passed by the learned single Judge,

exercising criminal jurisdiction. Therefore, the writ appeal under Clause

15 of the Letters Patent is not maintainable and requested to dismiss the

writ appeal.

10) Considering rival contentions, perusing the material available on

record, the sole point that need to be answered by this Court in the

present writ appeal is as follows:

"Whether the Intra-Court Appeal under Clause 15 of the Letters Patent is maintainable against the order passed by the learned single Judge, while exercising criminal jurisdiction. If not, whether the writ appeal is liable to be dismissed?"

P O I N T:

11) The petitioner being unsuccessful in the writ petition before the

learned single Judge preferred this Intra-Court Appeal before the Division

Bench of this Court. This Court raised an objection as to maintainability

of the writ appeal invoking Clause 15 of the Letters Patent, at the stage of

admission itself. Similar objection was raised by the learned Government

Pleader for Home as to maintainability of the writ appeal under Clause 15

of the Letters Patent, as the order was passed while exercising criminal

jurisdiction by the learned single Judge, based on the law declared by the

Full Bench of the Hon'ble Apex Court in Ram Kishan Fauji vs. State of

Haryana (referred supra).

12) Letter patent appeal (LPA) is an appeal by a petitioner against a

decision of a single judge to another bench of the same court. It was a CJ & MSM,J WA_145_2022

remedy provided when high courts were first created in India in 1865.

This is an only remedy which is available in court to the petitioner against

the decision of a single judge of a high court, otherwise, a remedy would

lie with only in the supreme court. Sometimes the decision of single judge

would also go wrong due to wrong facts as well as by law. In this before

going to Supreme Court, the petitioner has the option to move to another

bench having more than one judge. So applying for Letter Patent Appeal

petitioner will save the cost to moving in the Supreme Court. Letter Patent

Appeal is an intra-court appeal in high court have rules regarding this

Letter Patent Appeal. Normally a judgment and order passed under Article

226 of the Constitution is appealable as LPA and judgment and order

passed under Article 227 is not appealable under this category. Time and

again, the Court had an occasion to deal with similar issue with regard to

maintainability of appeal under Clause 15 of the Letters Patent and

decided the question in negative.

13) Undisputedly, the writ appeal was preferred under Clause 15 of the

Letters Patent, as mentioned in the appeal grounds. Clause 15 of the

Letters Patent provides an Intra-Court appeal against an order passed by

the learned single Judge i.e. before Division Bench. For better

appreciation of the rival contentions, we find that it is apposite to extract

Clause 15 of the Letters Patent and it is extracted hereunder:

"15. Appeal from the Courts or original jurisdiction to the High Court in its appellate jurisdiction:-

And we do further ordain that an appeal shall lie to the said High Court of Judicature at Madras from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order 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 the exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act, or in the exercise of criminal jurisdiction of one Judge of the said High CJ & MSM,J WA_145_2022

Court or one Judge of any Division Court, pursuant to Section 108 of Government of India Act, and that notwithstanding anything herein before provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act made (on or after the 1st day of February, 1929) in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to Us, Our Heirs or Successors in Our or Their Privy Council, as hereinafter provided."

14) From the above extracted Clause 15, it is clear that the appeal shall

lie to the High Court of Andhra Pradesh at Amaravati (not being a

judgment passed in the exercise of appellate jurisdiction in respect of a

decree or order made in exercise of appellate jurisdiction by a Court,

subject to the superintendence of the High Court and not being an order

made in exercise of revisional jurisdiction and not being a sentence or

order passed. From the above extract of Clause 15, it is also clear that

Intra-Court appeal is not provided, if a single Judge has exercised

criminal jurisdiction sitting and hearing the matter under Article 226 of

the Constitution of India.

15) The Delhi High Court in C.S. Aggarwal vs. State4 dealt with the

issue in detail. Hon'ble Justice Sikri while referring to Letters Patent and

after considering various judgments, including Full Bench judgment of

High Court of Andhra Pradesh in Gangaram Kandaram vs. Sunder

Chhka Amin and others5, State of Uttar Pradesh vs. Dr. Vijay Anand

Maharaj6 and Sanjeev Rajendrabhai Bhatt vs. State of Gujarat7 held

that the Intra-Court Appeal against the order passed by the learned single

259 (2019) DLT 113

2000 (2) ALT 448

(1963) 1 S.C.R. 1

1999 Cr.L.J 3388 CJ & MSM,J WA_145_2022

Judge, while exercising criminal jurisdiction is not maintainable before

the Division Bench of the same High Court.

16) In Ram Kishan Fauji vs. State of Haryana (referred supra), the

Hon'ble Apex Court categorically held that, it is manifest that no appeal

lies against the order passed by the Single Judge in exercise of criminal

jurisdiction. When there are proceedings under Article 226 of the

Constitution of India arising from an order made by the Court in exercise

of power conferred under the Code of Criminal Procedure, it would be a

criminal proceeding within the meaning of Letters Patent. On a plain

reading of the aforesaid clause of the Letters Patent, it is manifest that no

appeal lies against the order passed by the Single Judge in exercise of

criminal jurisdiction. Further, the Court held that Clause 15 of Letters

Patent, exercises appellate jurisdiction and not the jurisdiction as

conferred under Article 226 of the Constitution of India. When a power

conferred under Article 226 of the Constitution of India is invoked at the

instance of a litigant with regard to any criminal matter, it is deemed to

have been exercised by the Court under Section 482 Cr.P.C. Hence, no

Intra-Court Appeal is permissible. The Bench hearing the matters

pertaining to Section 482 Cr.P.C cannot exercise the jurisdiction under

Article 226 of the Constitution of India, whereas the Bench hearing the

matters exercising the extraordinary jurisdiction under Article 226 of the

Constitution of India, is empowered to deal with the issues that may fall

under Section 482 Cr.P.C. As the jurisdiction exercised in this regard is

one under Section 482 Cr.P.C, only appeal will lie to Supreme Court and

not before the Division Bench of the Court. The same is reiterated by the

Division Bench of Madras High Court in K.N. Pudur Primary

Agricultural Co-operative Credit Society Limited vs. G.

CJ & MSM,J WA_145_2022

Balakrishnan and others8 and Division Bench of Delhi High Court in

Vinod Kumar Pandey vs. Vijay Aggarwal9

17) In M/s. A.P. Products vs. State of Telangana10, the Division

Bench of Telangana High Court drawn distinction between criminal

proceedings and civil proceedings and referred the Constitution Bench

judgment of Hon'ble Apex Court in Commissioner of Income Tax,

Bombay and another vs. Ishwarlal Bhagwandas11, to draw distinction

between criminal and civil proceedings, where the Apex Court opined as

under:

"The aforesaid authority makes a clear distinction between a civil proceeding and a criminal proceeding. As far as criminal proceeding is concerned, it clearly stipulates that a criminal proceeding is ordinarily one which, if carried to its conclusion, may result in imposition of (i) sentence, and (ii) it can take within its ambit the larger interest of the State, orders to prevent apprehended breach of peace and orders to bind down persons who are a danger to the maintenance of peace and order. The Court has ruled that the character of the proceeding does not depend upon the nature of the tribunal which is invested with the authority to grant relief but upon the nature of the right violated and the appropriate relief which may be claimed."

Ultimately, the Hon'ble Supreme Court concluded as under:

"As we find from the decisions of the aforesaid three High Courts, it is evident that there is no disagreement or conflict on the principle that if an appeal is barred under Clause 10 or Clause 15 of the Letters Patent, as the case may be, no appeal will lie. The High Court of Andhra Pradesh, however, has held that when the power is exercised under Article 226 of the Constitution for quashing of a criminal proceeding, there is no exercise of criminal jurisdiction. It has distinguished the proceeding for quashing of FIR under Section 482 CrPC and, in that context, has opined that from such an order, no appeal would lie. On the contrary, the High Courts of Gujarat and Delhi, on the basis of the law laid down by this Court in Ishwarlal Bhagwandas, have laid emphasis on the seed of initiation of criminal proceeding, the consequence of a criminal proceeding and also the nature of relief sought before the Single Judge under Article 226 of the Constitution.

The conception of 'criminal jurisdiction' as used in Clause 10 of the Letters Patent is not to be construed in the narrow sense. It encompasses in its gamut the inception and the consequence. It is the field in respect of which the jurisdiction is exercised, is relevant. The contention that solely because a writ petition is filed to quash an investigation, it would have room for intra-court appeal and if a petition is filed under inherent jurisdiction under Section 482 CrPC, there would be no space for an intra-court appeal, would create an anomalous, unacceptable and inconceivable situation. The provision contained in the Letters Patent does not allow or permit such an interpretation. When we are required to consider a bar or non-permissibility, we have to appreciate the same in true letter and spirit. It confers jurisdiction as regards the subject of controversy or nature of proceeding and that subject is exercise of jurisdiction in criminal matters. It has nothing

AIR 2018 Mad 149

LPA 1194/2006 dated 13.03.2019

W.A.No.564 of 2020 dated 21.12.2020

AIR 1965 SC 1818 CJ & MSM,J WA_145_2022

to do whether the order has been passed in exercise of extraordinary jurisdiction under Article 226 of the Constitution or inherent jurisdiction under Section 482 CrPC."

18) In the above judgment, the proceedings which were challenged

before the Division Bench are criminal proceedings. Applying the principle

laid down by the Apex Court in Ram Kishan Fauji vs. State of Haryana

(referred supra), the Division Bench held that, writ appeal is not

maintainable under Clause 15 of the Letters Patent when an order was

passed exercising extraordinary jurisdiction under Article 226 of the

Constitution of India, on criminal side.

19) Turning to the facts of the present case, Warrant of Arrest was

issued for production of petitioner/accused before the Court which is one

of the modes to secure the presence of the petitioner, enabling the Court

to proceed with the trial of the case. Warrant was issued by exercising

power conferred on the Trial Court under Section 70 of Cr.P.C and if the

Warrant was allowed to remain till execution of it, accused will be

arrested and produced before the Trial Court. So arrest of the accused by

the police or competent authority is under Criminal Procedure Code. The

decision was rendered by the learned single Judge in the writ petition

while exercising criminal jurisdiction and therefore, in view of the specific

bar contained under Clause 15 of the Letters Patent, no Intra-Court

Appeal lies to the Division Bench of this Court and the writ appeal is not

maintainable.

20) Learned counsel for the petitioner drawn attention of this Court to

the judgment of the Hon'ble Apex Court in Jasbir Singh @ Jassa vs.

State of Punjab (referred supra), where the Full Bench of the Hon'ble

Apex Court had drawn distinction between the judgment in Ram Kishan

Fauji vs. State of Haryana (referred supra) and the facts of the said

case. The judgment in Ram Kishan Fauji vs. State of Haryana CJ & MSM,J WA_145_2022

(referred supra) arose out of a writ petition, where relief in the nature of

quashing of the recommendations of Lokayukta, which would have led to

launching of criminal prosecution, was in issue. The relief prayed for was

thus integrally connected with the criminal proceedings which could have

been launched as a result of the recommendations of Lokayukta. It was in

this context that this Court held that no appeal would be maintainable

against the decision of the Single Judge which had dealt with such writ

petition. However, in Jasbir Singh @ Jassa vs. State of Punjab (referred

supra), it was held that, if a clear-cut distinction is accepted that while

dealing with a writ petition based on the ground of delay in disposal of

mercy petition or application for commutation, the Court does not and

will not enter into the merits of the matter, the proceedings so initiated by

way of writ petition are not connected with the earlier determination of

guilt in regular proceedings. The nature of such proceedings by way of a

writ petition would be independent, original and founded on

circumstances which occurred after the guilt stood determined by the

criminal courts; and, therefore, such proceedings will certainly be one

where remedy by way of an intra-Court appeal, if the concerned Rules of

Letters Patent so permit, would be maintainable.

21) We are afraid to apply the principle laid down in Jasbir Singh @

Jassa vs. State of Punjab (referred supra) to the present facts of the

case, since, criminal proceedings are pending before the Trial Court for

securing the presence of the accused since the petitioner is avoiding the

criminal trial, obviously for one reason or the other. Issue of non bailable

warrant is a method to secure the presence of the accused before the

Court and such Warrants were issued to secure presence of accused to

face criminal trial for the failure of the accused to appear before the Court

and face trial, in case the warrant of arrest is executed, the accused will CJ & MSM,J WA_145_2022

be sent to remand, unless released on bail, as such the proceedings

before the learned single Judges are criminal in nature. It is not a

proceeding after finding the accused guilty. Hence, the principle laid down

in Ram Kishan Fauji vs. State of Haryana (referred supra) is directly

applicable to the present facts of the case and principle in Jasbir Singh

@ Jassa vs. State of Punjab (referred supra) is not applicable, in view of

the factual distinction. That too, the learned single Judge in the writ

petition, while exercising criminal jurisdiction, passed the orders under

Article 226 of the Constitution of India. Hence, we are unable to agree

with the contention of the learned counsel for the petitioners as to

maintainability of Intra-Court Appeal under Clause 15 of the Letters

Patent, in view of the judgment of the Full Bench of Hon'ble Apex Court in

Ram Kishan Fauji vs. State of Haryana (referred supra) and other

judgments, which we referred in the earlier paragraphs. Though the

judgments of other High Courts are not binding precedents, but still, they

have got persuasive value. The Full Bench of Hon'ble Apex Court in Ram

Kishan Fauji vs. State of Haryana (referred supra) arrived at a

conclusion that, Intra-Court Appeal is not maintainable.

22) Non Bailable Warrant in a calendar case was issued by the

V Additional Junior Civil Judge, Guntur, while exercising criminal

jurisdiction and the same was challenged before the learned single Judge

of this Court, raising a specific ground that, issue of Non Bailable

Warrant without issuing bailable warrant is illegal, based on the law

declared by the Hon'ble Supreme Court in Satender Kumar Antil v. CBI

(referred supra). But, the learned single Judge while exercising criminal

jurisdiction under Article 226 of the Constitution of India, disposed of the

writ petition with a direction to the petitioner to appear before the Trial

Court before specified date. When once the order was passed exercising CJ & MSM,J WA_145_2022

criminal jurisdiction under Article 226 of the Constitution of India, writ

appeal is not maintainable, since the consequences of execution of the

Warrant or culmination of trial would lead to committing the petitioner to

jail. Therefore, the order passed by the learned single Judge was passed

only while exercising criminal jurisdiction under Article 226 of the

Constitution of India.

23) Viewed from any angle, by applying the principle laid down by the

Full Bench of Hon'ble Apex Court in Ram Kishan Fauji vs. State of

Haryana (referred supra), and persuaded by other judgments we have no

hesitation to hold that, Intra-Court Appeal is not maintainable against an

order passed by the learned single Judge, while exercising criminal

jurisdiction under Article 226 of the Constitution, more particularly, issue

of Non Bailable Warrant is purely criminal proceeding. Accordingly, the

point is held against the petitioner and in favour of the respondents.

24) In the result, writ appeal is dismissed, without touching the other

contentions of merits. No costs.

25) Consequently, miscellaneous petitions pending, if any, shall also

stand closed.

PRASHANT KUMAR MISHRA, CJ M. SATYANARAYANA MURTHY, J

SP