Korada Rajababu vs The State Of Andhra Pradesh
2022 Latest Caselaw 2019 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 NOs.703 & 748 OF 2021
                   (Proceedings through Physical mode)

W.A.No.703 of 2021

Korada Rajababu,
s/o late Surya Prakasa Rao,
r/o 9-24-3, Flat No.502, K.M. Towers,
Opp. Timpany School,
Visakhapatnam                                        ..... 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

W.A.No.748 of 2021

1. Durga Satish @ Nani

2. Durga Sudha Lakshmi r/o 8-3-678, Plot No.36, Pragati Nagar, Yusufguda, Khairatabad, Hyderabad ..... Appellants

Versus

The State of Andhra Pradesh, Rep. by its Principal Secretary (Home), Secretariat, Velagapudi, Amaravati and 2 others .... Respondents

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

Counsel for Respondent No.4 : Mr.Maheswara Rao Kunchem CJ & MSM,J WAs_703 & 748_2021

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

1) Aggrieved by the orders passed by the learned single Judges in

W.P.No.21531 of 2021 dated 27.10.2021 and W.P.No.25490 of 2021

dated 05.11.2021, the present writ appeals are preferred under

Clause 15 of Letters Patent, by the petitioners/accused in the writ

petitions.

2) The appellants herein were the writ petitioners and the respondents

herein were the respondents in the writ petitions. For the sake of

convenience and to avoid confusion, the parties will be referred as arrayed

in the writ petitions.

3) W.P.No.21531 of 2021 and W.P.No.25490 of 2021 were filed under Article

226 of the Constitution of India, to declare the action of the

respondent/police in issuing Non-Bailable Warrants in C.C.No.350 of

2014 on the file of the First Additional Judicial First Class Magistrate,

Anakapalli, Visakhapatnam, and C.C.No.263 of 2018 on the file of

III Additional Metropolitan Magistrate, Visakhapatnam, against the

petitioners, on the ground that, the Non-Bailable Warrants were issued

under Section 70 of the Criminal Procedure Code (for short „Cr.P.C‟) are

old and dead/elapsed Warranst; instead of returning to the concerned

Court, in violation of the directions issued by the Hon‟ble Supreme Court

in Raghuvansh Dewanchand Bhasin vs. State of Maharashtra1 and

in violation of Articles 14, 19 and 21 of the Constitution of India.

Consequently, prayed to direct the Respondents/Police to return the

old/dead/elapsed Non-Bailable Warrant (NBW) in the name of the

AIR 2011 SC 3393 CJ & MSM,J WAs_703 & 748_2021

petitioners in the above mentioned calendar cases without executing the

same as against the petitioners.

4) It is contended that, in view of the law settled by the Hon‟ble Apex Court

in Raghuvansh Dewanchand Bhasin vs. State of Maharashtra

(referred supra) where Guidelines Nos. (a) to (j) were issued, wherein,

Guideline No.(j) says that the Court must ensure that warrant is directed

to a particular police officer (or authority) and unless intended to be open-

ended, it must be returnable whether executed or unexecuted, on or

before the date specified therein. Therefore, the Warrants shall be

returned if not executed or the concerned police officer or authority shall

produce the accused on his arrest before the Court within the time

specified in the Warrants. But, the learned single Judge in W.P.No.21531

of 2021 directed the petitioner therein to surrender before the Trial Court

within a week i.e on or before 02.11.2021 and file a petition before the

Trial Court under Section 70(2) of Cr.P.C to recall or cancel the said

N.B.W. Till 02.11.2021, the said N.B.W was kept under suspension. It

was also directed that, if the petitioner fails to surrender before the Trial

Court on or before 02.11.2021, the learned Advocate Commissioner, with

the assistance of police, shall execute the said Warrant against the

petitioner. W.P.No.21531 of 2021 dated 27.10.2021 was disposed of with

identical direction to the petitioner and the directions are challenged in

W.A.No.703 of 2021. In fact, no such copy was served on the petitioner

till date, except by uploading in the website on 19.11.2021. The order

again says that, if the petitioner fails to surrender before 02.11.2021, the

learned Advocate Commissioner was directed to execute the warrant with

the assistance of police. In fact, no such Advocate Commissioner was

appointed to execute the Warrant.

CJ & MSM,J WAs_703 & 748_2021

5) The main endeavour of the petitioners/appellants before this Court is

that, the Warrants are deemed to be dead or lapsed, if they are not

executed within the time specified in the Warrants or by the next date of

adjournment. The learned single Judges did not consider the case of

these petitioners in proper perspective and committed a serious error in

issuing such direction and requested to set-aside the same.

6) The contention of the petitioners was based on the judgment of the

Hon‟ble Apex Court in Raghuvansh Dewanchand Bhasin vs. State of

Maharashtra (referred supra) and on the strength of the same, learned

counsel for the petitioners would contend that, the Warrants are deemed

to be dead or lapsed, as they were not executed and the accused were not

produced before the Court in execution of Warrants, the petitioners were

directed to appear before the Trial Court and file an application under

Section 70(2) of Cr.P.C to recall or cancel N.B.Ws, till such time, Non-

Bailable Warrant were kept under suspension.

7) Aggrieved by the orders referred above, the petitioners in both the writ

petitions filed the writ appeals, reiterating that, if the Warrants are not

executed before the next date of adjournment issued by the Trial Court,

they are deemed to be dead or lapsed and the police or authority to whom

the Warrants were entrusted shall return the Warrants unexecuted. If the

Non Bailable Warrants are unexecuted, they are deemed to be dead or

lapsed Warrants and execution of such Warrants by the authority or

police to whom the Warrants were entrusted for arrest and production of

the petitioners does not arise and therefore, issue of directions by the

learned single Judges in W.P.No.21531 of 2021 dated 27.10.2021 and

W.P.No.25490 of 2021 dated 05.11.2021 is contrary to the law laid down

in Hon‟ble Apex Court in Raghuvansh Dewanchand Bhasin vs. State CJ & MSM,J WAs_703 & 748_2021

of Maharashtra (referred supra) and requested to set-aside the orders

and grant the relief as claimed by the petitioners in both the writ

petitions.

8) During hearing, this Court raised an objection as to maintainability of the

writ appeals based on the Full Bench judgment of the Hon‟ble Apex Court

in Ram Kishan Fauji vs. State of Haryana2 and the learned counsel

appearing for the petitioners with vehemence would submit that, when

the Warrants were issued and not executed, they are "Dead Warrants" for

all practical purposes and the same cannot be executed, in view of the

judgment of the Hon‟ble Apex Court in Raghuvansh Dewanchand

Bhasin vs. State of Maharashtra (referred supra), but did not answer

the query raised by this Court during hearing, except drawing attention of

this Court to the judgment of the Hon‟ble Apex Court in Jasbir Singh @

Jassa vs. State of Punjab3, where, Ram Kishan Fauji vs. State of

Haryana (referred supra) was considered and distinguished the facts of

the case with the judgment in Ram Kishan Fauji vs. State of Haryana

(referred supra) and passed order.

9) Learned Government Pleader for Home contended that, when Open

Warrants were issued against the petitioners, they will not expire or lapse

if not executed within the time prescribed before the date of adjournment

fixed by the Trial Court. The Warrants are deemed to be in operation till

they are executed by the police or authority to whom the Warrants were

entrusted, in view of Section 70(2) of Cr.P.C and therefore, the concept of

dead or lapsed Warrants is alien to Cr.P.C and criminal jurisprudence,

consequently, the contention of the petitioners cannot be accepted. Apart

from that, as per the judgment of the Full Bench of the Hon‟ble Apex

(2017) 5 SCC 533

2022 (1) RCR (Criminal) 359 CJ & MSM,J WAs_703 & 748_2021

Court in Ram Kishan Fauji vs. State of Haryana (referred supra), when

writ petitions are filed to restrain the police to execute the Warrants

entrusted to them for arrest of the petitioners and produce them before

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

but an interference in the process of trial by this Court, which is

impermissible under law and that the writ appeals are not maintainable,

as the orders in the writ petitions were passed by the learned single

Judges, exercising criminal jurisdiction. Therefore, the writ appeals under

Clause 15 of the Letters Patent are not maintainable and requested to

dismiss the writ appeals.

10) Considering rival contentions, perusing the material available on

record, the points need to be answered by this Court in the present writ

appeals are as follows:

(i) Whether the Warrants of Arrest are deemed to be dead or lapsed if they are not executed by the police officers/authorities to whom the Warrants were entrusted before the next date of adjournment in the Trial Court within reasonable time. If not, whether the Open warrants shall be deemed to be operative till they are executed or returned by the concerned police or authority to whom the Warrants are executed?

(ii) Whether the writ appeals under Clause 15 of the Letters Patent are maintainable against the orders passed by the learned single Judges, while exercising criminal jurisdiction. If not, whether the writ appeals are liable to be dismissed?

P O I N T No.1:

11) It is an undisputed fact that, W.A.No.703 of 2021 was preferred

against the order in W.P.No.21531 of 2021 dated 27.10.2021, the CJ & MSM,J WAs_703 & 748_2021

petitioner is an accused in C.C.No.350 of 2014 on the file of I Additional

Judicial Magistrate of First Class at Anakapalli, Visakhapatnam, filed the

writ petition challenging the action of the police in executing the Non-

Bailable Warrant.

12) W.A.No.748 of 2021 was preferred against the order in

W.P.No.25490 of 2021 dated 05.11.2021, wherein the petitioners/

accused in C.C.No.263 of 2018 on the file of III Additional Metropolitan

Magistrate, Visakhapatnam, the petitioners/accused filed the writ petition

challenging the action of the police in executing the Non-Bailable

Warrants.

13) As the petitioners were not attending the Court, the Trial Court

issued Non-Bailable Warrants against these petitioners to secure their

presence and produce them before the Court, so as to proceed with the

trial. Copies of the Warrants are not produced before the Court to find out

whether the Warrants are open Warrants or to be executed within the

time prescribed by the Trial Court. If the Warrants entrusted to the

police/authorities are not directed to be returned, if not executed, such

Warrants are deemed to be Open Warrants. In W.P.No.25490 of 2021,

copy of the Warrant is produced before this Court, issued C.C.No.263 of

2018 by the III Additional Metropolitan Magistrate, Visakhapatnam,

whereunder the Trial Court directed the police officials to arrest the

accused and produce before the Court. The Warrant is with certain

correction, the date of adjournment was also mentioned.

14) According to Section 70 of Cr.P.C says that, (1) Every warrant of

arrest issued by a Court under this Code shall be in writing, signed by the

presiding officer of such Court and shall bear the seal of the Court and

according to Clause (2) Every such warrant shall remain in force until it is CJ & MSM,J WAs_703 & 748_2021

cancelled by the Court which issued it, or until it is executed. A proforma

of Warrant of Arrest is prescribed in Form No.2 of the Second Schedule of

Cr.P.C is extracted hereunder:

FORM No.2 Warrant of Arrest To (name and designation of the person or persons who is or are to execute the warrant).

WHEREAS (name of accused) of (address) stands charged with the offence of (state of offence), you are hereby directed to arrest the said ......... and to produce him before me. Herein fail not.

Dated, this .......... Day of ............ ...........

(Seal of the Court) (Signature)

This warrant may be endorsed as follows:-

If the said ........... shall give bail himself in a sum of rupees .......... With one surety in the sum of rupees ......... (or two sureties each in the sum of rupees ..........) to attend before me on the ....... Day of ...... and to continue so to attend until otherwise directed by me, he may be released.

Dated, this .......... Day of ............ ...........

        (Seal of the Court)                                  (Signature)



15)     The Form of Warrant is prescribed under Section 70 of Cr.P.C in

Form No.2 of the Second Schedule of Cr.P.C and the Warrant shall be

executed and the accused shall be produced before the Magistrate

without fail. Specific time is not required to be fixed for production of

such accused before the Court.

16) In W.P.No.25490 of 2021, the dates were mentioned in the Form of

Warrant of Arrest as "30.12.2020" (not clearly visible) and it was rounded

off and mentioned as "20.04.2021", but the above dates are dates of

adjournments. Warrant was issued on 27.12.2020. Therefore, based on

the copy of Warrant filed along with W.A.No.748 of 2021, it is difficult to

conclude that the Warrant shall be executed within specific time. Apart

from that, the docket orders of the Trial Court dated 30.12.2020, CJ & MSM,J WAs_703 & 748_2021

20.04.2021 and 03.09.2021 would show that N.B.Ws are pending against

the petitioners/Accused in C.C.No.263 of 2018 on the file of III Additional

Metropolitan Magistrate, Visakhapatnam and adjourned to some other

date. This itself would show that, the Warrant is open, otherwise the

police officers ought to have returned the Warrant, if it is a time bound

direction to execute the warrant. Hence, the Warrant is open warrant

without fixing any time for execution. The direction is issued to produce

the accused on their arrest in execution of Non-Bailable Warrant without

fail. Therefore, the Warrant shall be deemed to be open Warrant and

question of lapse of Warrant does not arise.

17) The major contention of the learned counsel for the petitioners is

that, when the Warrants were issued long back, not executed for such a

long time, the Warrants are deemed to be dead or lapsed. This strange

contention is not based on any law or the provision in the Criminal

Procedure Code or Criminal Rules of Practice. The concept of dead

warrant or lapsed warrant of arrest is unknown to criminal procedure

code, therefore, it is almost alien to criminal jurisprudence. When once

the warrant was issued, it shall remain in force until it is cancelled by the

Court which issued it or until it is executed in terms of Sub-section (2) of

Section 70 of Cr.P.C. Therefore, question of lapse of warrant of arrest

does not arise in view of the plain language employed in Sub-section (2) of

Section 70 of Cr.P.C.

18) Time and again, the Courts dealt with this issue since 1903 under

the old Criminal Procedure Code and arrived at a conclusion that the

Warrant of Arrest issued under the provisions of Criminal Procedure Code

shall remain in force until it is executed or returned by the authorities CJ & MSM,J WAs_703 & 748_2021

concerned. In view of the specific contention, it is appropriate to advert to

the law laid down by various Courts commencing from 1903.

19) In Emperor vs. Alloomiya Husan4, the Full Bench of High Court

of Bombay had an occasion to deal with similar issue while deciding the

case under Bombay Prevention of Gambling Act. Initially the matter was

dealt with by the Division Bench of Justice N.G. Chandavarkar and

Justice G. Jacob. But, in view of the difference of opinion expressed by

one of the Judges, it was referred to the third Judge i.e. Justice Aston,

who authored the judgment, expressed his view that, execution of the

warrant which was issued by the Commissioner of Police under Section 6

of Bombay Act IV of 1887, and under which the Police entered the

appellant's house and conducted a search, was illegal, because, it is

contended, the warrant was executed not immediately after it had been

issued, but several days after. The date of the warrant was 19th May,

1903, and it was executed on the 7th June, 1903. Section 6 of the Act

does not say that the warrant should be executed immediately after its

issue, nor does it prescribe any period during which it must be taken to

be in force. But the argument advanced by the appellant's pleader was

that it could not have been the intention of the Legislature to keep a

warrant of this kind in force for an indefinite period and authorise those

to whom it is issued to let it lie in their pockets as long as they like and

execute it after the lapse of considerable time. But when the Legislature

has not prescribed any period limiting the time during which it is to be in

force, the presumption is that it retains its validity until it is executed.

ILR 1904 28 Bom 129 CJ & MSM,J WAs_703 & 748_2021

20) In Dickinson v. Brown5 Lord Kenyon said that the warrant of a

Magistrate was not returnable at any particular time, but continue in

force until it was fully executed and obeyed, though it were seven years.

In Mayhew v. Parker6 the same learned Judge held that a warrant to

arrest a person that he might be bound to appear at the next Session of

Oyer and Terminer might be executed at any time. Some discretion must

be given to the officer executing a warrant, and whether that discretion is

exercised properly and within a reasonable time or not is a question

which must depend on the circumstances of each case. But the warrant

itself does not become illegal merely because it is executed not

immediately after its issue but some days after that. There may be, under

certain circumstances, illegality attending the execution of the warrant

and rendering the officer executing it liable on account of such illegal

execution; and yet the warrant itself may be in force, no period of time

being expressly prescribed for its execution. It was said that the language

of Section 6 of the Act showed that the warrant must be executed

immediately after its issue, and the case was put before us in this way in

support of that. The persons who occupied the place when the warrant

was issued might leave and others might come and live there, and it

cannot have been the intention of the Legislature that the warrant should

be executed when there has been a change of that kind. But it appears

that the language of Section 6 supports the view that the Legislature did

not intend to restrict the authority executing the warrant to any limit of

time. The warrant has to be issued when a complaint is made on oath

that there is reason to suspect that "any house, room, or place" is used as

a common gaming house. The attack aimed at primarily is against a

(1791) 1 Peak. N.P. 307

(1799) 8 T.R. 110 CJ & MSM,J WAs_703 & 748_2021

particular locality as distinguished from the persons who live in or

frequent it. It is because a house, room, or place is suspected to be a

rendezvous of gamblers that the Legislature has authorized the issue of a

warrant, the object being to prevent any house becoming the resort of

gamblers. The gamblers are reached through the house, room, or place,

and it is the house, room, or place which is to be entered and searched.

The complaint in fact on the basis of which the warrant goes is against

the house, room, or place, and its inmates and its contents come in as

parts of it. That being the nature of the complaint and the house, room,

or place standing where it did, it may be the Legislature has not

prescribed any limit of time for the execution of the warrant, but left it to

the discretion of the officer issuing it. Persons who live in such a place

may change from day to day or from hour to hour, as those who gamble

there may change. But the house, room, or place being in itself prima

facie proved to the satisfaction of the authority issuing the warrant under

Section 6 of the Act to be a common gaming house, it continues to be so

for the purposes of the Act and may be searched within a reasonable

period so long as the warrant, not being executed, is in force.

21) The language employed in Section 6 of the Bombay Prevention of

Gambling Act (Bombay Act IV of 1887) is identical to the language

employed in Sub-section (2) of Section 70 of Cr.P.C. But, in the above

judgment, Justice G. Jacob, did not agree with the opinion expressed by

Justice N.G. Chandavarkar. Thereupon, it was referred to Justice Aston

who concurred with the opinion of Justice N.G. Chandavarkar while

dealing with Section 6 of Bombay Prevention of Gambling Act (Bombay

Act IV of 1887).

CJ & MSM,J WAs_703 & 748_2021

22) Justice Aston concurred with the judgment of Justice N.G.

Chandavarkar in Paragraph No.52 of the judgment and held as follows:

„52. I therefore concur in the opinion of Mr. Justice Chnndavarkar that in a trial for an offence of keeping a common gaming house under section 4 of the Gambling Act (Bombay Act IV of 1887) evidence that the accused had been previously convicted of the same offence is admissible to show guilty knowledge or intention.‟

Thus, the majority opinion is that, the Warrant will remain in force

till it is executed or returned.

23) In Ranshan Singh and Ors. vs. Emperor7, Justice Caspersz and

Justice Ryves had an occasion to deal with expiry or lapse of Warrant and

answered in Paragraph No.4 of the judgment as follows:

"5. The warrant was never cancelled nor was it withdrawn. Consequently it remained in force until it was executed, as provided by Section 75(2), Cr. P C. The direction to take bail, endorsed on the warrant, duly fixed a time (the 26th October) at which the accused was to attend before the Court. See Section 76(2), (c) of the Code. The date fixed having past, the direction to take bail lapsed, but the warrant itself did not lapse. Therefore, the arrest was legally made on the 29th October, and the rescue and escape from custody became punishable.

Sections 75 and 76 of the Code must be read together in the manner we have explained. The construction contended for by the petitioners, would have the effect of making Section 75(2) a dead letter, and would necessitate the issue of successive warrants each fixing a fresh date for appearance of the accused before the Court. This cannot have been the intention of the Legislature. Section 76(1) is permissive."

24) In King Emperor vs. Binda Ahir8, the Division Bench consisting of

Justice L.C. Adami and Justice Wort, question of lapse of Warrant was

considered and the Court held as follows:

"It is obvious that the learned Sessions Judge in both cases failed to consider the provision of Sub-section (2), Section 75, Criminal P.C., which lays down that every such warrant shall remain, in force until it is cancelled by the Court which issued it or until it is executed."

25) In Kandan Narayanan and Ors. vs. State9 Division Bench of

High Court of Travancore - Cochin had an occasion to deal with similar

4 Ind. Cas.31

112 Ind. Cas.223 CJ & MSM,J WAs_703 & 748_2021

question, wherein it was held that, every warrant of arrest issued by a

court shall be in writing signed by the Presiding Officer...and shall bear

the seal of the court. Sub-section (2) lays down that every such warrant

shall remain in force until it is cancelled by the court which issued it or

until it is executed.

26) In Indar Mandal vs. The State of Bihar10, the learned single

Judge also considered the issue in Paragraph No.5 and held as follows:

"5. It is provided in Sub-clause (2) of Section 75 of the Code of Criminal Procedure that the warrant of arrest issued by a Court "shall remain in force until it is cancelled by the Court which issued it or until it is executed". The present warrant of arrest against Dhanoo Mandal was never cancelled. It is true that it was not executed in time earlier than the date fixed in the case in which Dhanoo Mandal was wanted, but it was sought to be executed on the 24th October, 1962 about six days after the date fixed in the original case. But since the warrant was never cancelled, it continued to be valid even after the expiry of the date fixed for return of the warrant. Although in the present case no date had been fixed for the return of the warrant, but impliedly it should have been returned before the date fixed in the proceedings, that is, 18th October, 1962. There is a direct authority of a Division Bench of this Court in Emperor y. Binda Ahir on this point. Thus, the warrant continued to be valid."

27) In view of the settled law laid down by various Courts and provision

contained under Section 70(2) of Cr.P.C - corresponding to Section 75(2)

of old Cr.P.C, it is clear that the Warrant would not lapse and the

question of presuming that the Warrant is dead or lapsed is unknown to

law. But the contention of the learned counsel for the petitioners is that,

in the judgment of the Hon‟ble Apex Court in Raghuvansh Dewanchand

Bhasin vs. State of Maharashtra (referred supra), the Court discussed

about the action to be taken while issuing Warrant of Arrest and the

Division Bench of the Hon‟ble Apex Court issued certain Guidelines from

(a) to (j), but only in Guideline No.(d), is relevant for the purpose of

deciding this issue, as contended by the learned counsel for the

AIR 1952 Ker 459

AIR 1967 Pat 141 CJ & MSM,J WAs_703 & 748_2021

petitioners Mr. Siva Sai Swaroop. Therefore, Guideline No.(d) is extracted

for better appreciation of the case.

"The Court must ensure that warrant is directed to a particular police officer (or authority) and, unless intended to be open-ended, it must be returnable whether executed or unexecuted, on or before the date specified therein."

28) From bare reading of Guideline No.(d), the Court must issue

direction for return of the Warrant whether executed or unexecuted on or

before the specified date. When the Warrant of arrest was issued under

Section 70(2) of Cr.P.C, it shall remain in force till it is executed by the

authority executed or cancelled by the competent court or returned

unexecuted by the police officer or authority to whom the Warrant was

entrusted. But, in the instant case, the Warrants appears to have been

open ended and no direction was issued for return of the Warrants on or

before the specified date, but directed the police to execute Warrants to

produce the accused on or before the particular date. Thus, the date was

fixed for execution of Warrants, but not for return of the Warrants, if not

executed. Therefore, the Warrants issued in C.C.No.350 of 2014 on the

file of I Additional Judicial First Class Magistrate at Anakapalli,

Visakhapatnam and C.C.No.263 of 2018 on the file of III Additional

Metropolitan Magistrate, Visakhapatnam, are said to be open ended

Warrants without any direction for return of the Warrants, if unexecuted

on or before a specified date. Therefore, we have no hesitation to hold

that, Warrants will never become dead or lapsed and they will remain in

force till they are executed or returned by the police officers or the

authority to whom they are entrusted or they are cancelled/withdrawn by

the competent court. In the instant case on hand, the Warrants of Arrest

were neither cancelled nor withdrawn by a competent court nor returned CJ & MSM,J WAs_703 & 748_2021

unexecuted by the police officer(s) or the authority to whom the Warrants

were entrusted. In those circumstances, the Warrants are deemed to be

alive and it can be executed at any time till they are cancelled or

withdrawn or till they are returned on execution or returned unexecuted.

Accordingly, the point is held against the petitioners and in favour of the

respondents.

P O I N T No.2:

29) The petitioners being unsuccessful before the learned single Judges

preferred these Intra Court Appeals before the Division Bench of this

Court. This Court raised an objection as to maintainability of the writ

appeals 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 appeals under

Clause 15 of the Letters Patent, as the order was passed while exercising

criminal jurisdiction by the learned single Judges, 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).

30) 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

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 CJ & MSM,J WAs_703 & 748_2021

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 Letters Patent Appeal 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.

31) Undisputedly, the writ appeals were 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 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 CJ & MSM,J WAs_703 & 748_2021

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."

32) 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.

33) The Delhi High Court in C.S. Aggarwal vs. State11 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 others12, State of Uttar Pradesh vs. Dr. Vijay

Anand Maharaj13 and Sanjeev Rajendrabhai Bhatt vs. State of

Gujarat14 held that the Intra Court Appeal against the order passed by

the learned single Judge while exercising criminal jurisdiction is not

maintainable before the Division Bench of the same High Court.

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

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

259 (2019) DLT 113

2000 (2) ALT 448

(1963) 1 S.C.R. 1

1999 Cr.L.J 3388 CJ & MSM,J WAs_703 & 748_2021

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. Balakrishnan and others15 and Division Bench of Delhi High Court

in Vinod Kumar Pandey vs. Vijay Aggarwal16

AIR 2018 Mad 149

LPA 1194/2006 dated 13.03.2019 CJ & MSM,J WAs_703 & 748_2021

35) In M/s. A.P. Products vs. State of Telangana17, 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 Bhagwandas18, 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 to do whether the order

W.A.No.564 of 2020 dated 21.12.2020

AIR 1965 SC 1818 CJ & MSM,J WAs_703 & 748_2021

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

36) 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.

37) Turning to the facts of the present case, Warrants of Arrest were

issued for production of petitioners/accused before the Court, which is

one of the modes to secure their presence, enabling the Court to proceed

with the trial of the case. Warrants were issued by exercising power

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

Warrants were allowed to remain by executing, 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 both the learned single Judges in both the writ

petitions 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 therefore, both

writ appeals are not maintainable.

38) Learned counsel for the petitioners 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 CJ & MSM,J WAs_703 & 748_2021

case. The judgment in Ram Kishan Fauji vs. State of Haryana

(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.

39) 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 petitioners are avoiding

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 the accused CJ & MSM,J WAs_703 & 748_2021

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 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, both the learned single Judges in the

writ petitions, 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.

40) In view of our foregoing discussion in Point Nos.1 & 2, we hold that,

Warrants of Arrest issued under Section 70 Cr.P.C would remain in force

till they are executed or returned by the police officer or

cancelled/withdrawn by the court issued the warrants; consequently, the

Writ Appeals are not maintainable against the orders passed while

exercising criminal jurisdiction under Article 226 of the Constitution.

CJ & MSM,J WAs_703 & 748_2021

41) 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 Appeals are not maintainable against

the orders passed by the learned single Judges, while exercising criminal

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

of Non-Bailable Warrants is purely criminal proceedings. Accordingly, the

point is held against the petitioners/accused and in favour of the

respondents.

42) In the result, writ appeals are dismissed. No costs.

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

stand closed.

PRASHANT KUMAR MISHRA, CJ M. SATYANARAYANA MURTHY, J

SP