Calcutta High Court (Appellete Side)
Suparna Kanjilal Chakraborty vs Suvendu Adhikari And Ors on 17 November, 2021
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT:
HON'BLE JUSTICE SUBRATA TALUKDAR
AND
THE HON'BLE JUSTICE KESANG DOMA BHUTIA
MAT 993 of 2021
With
IA No. CAN1 of 2021
With
MAT 970 of 2021
With
IA No. CAN1 of 2021
With
MAT 840 of 2021
With
CAN1 of 2021
Suparna Kanjilal Chakraborty
vs.
Suvendu Adhikari and Ors.
With
State of West Bengal
vs.
Suvendu Adhikari and Ors.
With
State of West Bengal
vs.
Chanchal Nandi and Ors.
For the Appellant : Mr. Debasish Roy
In MAT 993 of 2021 Mr. Jaydeep Biswas
Mr. Ayan Bhattacharya
Mr. Arnab Basu Mullick
2
For the State : Mr. Vikash Singh
In MAT 993 of 2021 Mr. Siddharta Luthra
And for the Appellant in Mr. Anirban Roy
MAT 970 of 2021 and Mr. Raja Saha
In MAT 840 of 2021 Mr. Suddhadeb Adak
Mr. Asif Ahmed
Mr. Aditya Raju
Mr. Debashis Ghosh
For the Respondent No.1 : Mr. Paramjit Singh Patwalia
In both MAT 993 of 2021 Mr. Rajdeep Majumder
MAT 970 of 2021 Mr. Billwadal Bhattacharyya
and in MAT 840 of 2021 Mr. Sourav Chatterjee
Mr. Kallol Mondal
Mr. Moyukh Mukherjee
Mr. HarshikaVerma
Mr. M. Hasija
Mr. Anish Kumar Mukherjee
Mr. Soumya Nag
Ms. Soumsree Chatterjee
For the CBI : Mr. Y.J. Dastoor
Mr. Phiroze Eduji
Mr. Samrat Gosami
Heard on : 04/10/2021
Judgment on : 17/11/2021
Subrata Talukdar, J:
The above noted analogous appeals have been preferred against a
common order dated 6th of September, 2021 in the writ petition, being WPA
11803 of 2021, passed by the Hon'ble Single Bench.
The Writ Petitioner in WPA 11803 of 2021, i.e. the Writ petition on
which the common order dated 6th September,2021 of the Hon'ble Single
Bench came to be passed, is the Respondent No.1 in two of the above noted
analogous appeals being MAT 993 of 2021 and MAT 970 of
2021(respectively MAT-I and MAT-II). The writ petitioner is a political leader
presently owing allegiance to a political party which is in opposition to the
present ruling party of the State. The writ petitioner originally owed
allegiance to the present ruling party and, inter alia, alleges that upon
shifting his allegiance to the party presently in the opposition, at least six
First Information Reports(FIRs) have been filed against him in four different
police stations of the State. The writ petitioner alleges victimization and
harassment by the State machinery as a counterblast to the change in his
political allegiance.
The prayers in the writ petition are primarily protection from the
vexatious criminal proceedings launched against the Writ petitioner and, in
the alternative, since the writ petition has lost faith in the impartiality of the
State machinery, to transfer investigation of the FIRs registered against him
to the Central Bureau of Investigation (CBI).
By the order impugned, the Hon'ble Single Bench was pleased to
notice and record the details of the FIRs pleaded in the writ petition. Upon
recording the details, the Hon'ble Single Bench found the writ petition to be
maintainable and, was prima facie satisfied that in the series of FIRs
complained of in the writ petition, the State machinery acted over-zealously
and maliciously. Upon further recording of reasons for its prima facie
satisfaction, the Hon'ble Single Bench was pleased to observe that the writ
petitioner deserves invocation of his rights under Article 21 of the
Constitution of India for protecting him from implication in false criminal
cases.
Accordingly, the Hon'ble Single Bench was pleased to direct as follows:
"There shall be a stay of proceedings in respect of the Contai
Police Station Case No. 248 of 2021 dated July 7, 2021 and the
Nandigram Police Station Case No. 110 of 2021 dated March
18, 2021. The investigation into the other two Police Station
cases i.e. Manicktala Police Station Case No. 28 of 2021 dated
February 27, 2021 and Tamluk Police Station Case No. 595 of
2021 dated July 19, 2021, the investigation may go on but no
coercive action shall be taken against the petitioner. The
petitioner shall cooperate in the investigations. Panskura Police
Station Case No. 375 of 2021 and 376 of 2021 shall also
remain stayed. The State shall furnish information as regards
any further FIR registered against the petitioner. The State shall
also obtain leave of this Court before 20 arresting the petitioner
or taking with any coercive action against the petitioner in all
such cases. The Investigating Authorities shall, as far as
possible, considering the public responsibilities of the petitioner,
accommodate him, if he is required to give any statement, from
a place and time convenient to him. Learned Advocate General
prays for stay of operation of the aforesaid order Considering
the entire facts and circumstances of the case, the prayer for
stay is considered and refused. Let affidavit-in-opposition be
filed within a period of four weeks from date. Reply, if any, be
filed within a period of two weeks thereafter. Liberty to mention
after completion of pleadings."
The appellants in the appeals, being respectively first the de facto
complainant in one of the FIRs (MAT 993 of 2021) and the State of West
Bengal represented by its prosecuting arm (MAT 970 of 2021) and (MAT 840
of 2021 - MAT-III), came under the legal obligation to answer the demurrer
raised by Mr. Patwalia, Learned Senior Counsel appearing for the writ
petitioner/ the respondent No.1, challenging the maintainability of the intra-
Court appeals.
Accordingly, the task of this Court has been prioritised to first address
the point of demurrer and hence the maintainability of the appeals.
Mr. Patwalia, foundationally relies on the law unambiguously laid
down In Re: Ram Kishan Fauji Vs. State of Haryana and another, (2017) 8
SCC 833) to contend that appeals of the present ilk cannot be filed within
the same Court before a Hon'ble Division Bench from the order of the
Hon'ble Single Bench.
The principal arguments may be summarised as follows:
First, connected to orders pertaining to criminal jurisdiction no intra-
Court appeal lies.
Second, such intra-Court appeals are barred by the Letters Patent
constituting the particular High Court.
Third, the interpretation on the exercise of criminal jurisdiction would
turn on the nature of the reliefs granted and, not on the character of the
Learned Tribunal granting such reliefs.
Fourth, only in the event by legislative fiat specific provisions of the
Letters Patent are modified, the embargo on filing of intra-Court appeals can
be lifted. In the absence of any legislation to the contrary, the embargo on
filing intra-Court criminal appeals imposed by the Letters Patent would
remain.
Learned Senior Counsel for the respondent No.1/ the writ petitioner
copiously relies on several paragraphs of In Re: Ram Kisan Fauji to impress
the sense of the facts involved in the present batch of appeals. This Court
would therefore find it useful to quote the relevant paragraphs in detail for
giving a shape to the facts which are presently under consideration.
The relevant paragraphs of In Re: Ram Kishan Fauji, reported in (2017)
5 Supreme Court Cases 533 read as follows:
"8. Questioning the sustainability of the order passed by the
Division Bench, Dr. Rajeev Dhawan, learned senior counsel,
has raised a singular contention that the LPA preferred before
the Division Bench was not maintainable inasmuch as the
learned Single Judge had exercised criminal jurisdiction. He
has placed reliance on certain authorities to which we shall
refer to at the relevant place in the course of our deliberations.
9. Mr. Sanjay Kumar Visen, learned counsel appearing for the
respondent State, resisting the aforesaid submission, would
contend that the writ petition was registered as a civil writ
petition for the purpose of issuing a writ of certiorari and the
exercise of jurisdiction by the High Court is civil in nature and,
therefore, the jurisdiction exercised is civil jurisdiction that
invites interference in intra-court appeal. That apart, contends
Mr.Visen that the exercise of power of the learned Single Judge
is strictly under Article 226 of the Constitution of India and,
hence, an intra-court appeal deserved to be entertained by the
Division Bench. It is further submitted by him that the
Lokayukta is a quasi-judicial body and when, at its instance,
action is taken for inquiry, it has to come within the ambit and
scope of civil jurisdiction and not criminal jurisdiction. Learned
counsel for the State has stressed on the status of Lokayukta
and for that matter has commended us to the authority in
Justice Chandrashekaraiah (Retd.) v. Janekere C. Krishna &
others.
16. The maze needs to be immediately cleared. In the instant
case, we are really not concerned with the nature of the post
held by Lokayukta or Upa-Lokayukta. We are also not
concerned how the recommendation of the said authorities is to
be challenged and what will be the procedure therefor. As has
been held by this Court, neither the Lokayukta nor Upa-
Lokayukta can direct implementation of his report, but it
investigates and after investigation, if it is found that a public
servant has committed a criminal offence, prosecution can be
initiated.
17. Having discussed as aforesaid, at this juncture, reference to
Clause 10 of the Letters Patent (as applicable to erstwhile
Punjab & Lahore High Courts) is absolutely apposite. It reads
as follows:-
"10. Appeals to the High Court from Judges of the Court - And
we do further ordain that an appeal shall lie to the said High
Court of Judicature at Lahore from the judgment (not being a
judgment passed in the exercise of appellate jurisdiction in
respect of a decree or order made in the exercise of appellate
jurisdiction by a Court subject to the superintendence of the
said High Court, and not being an order made in the exercise of
revisional jurisdiction, and not being a sentence or order passed
or made in exercise of the power of superintendence under the
provisions of Section 107 of the Government of India Act, or in
the exercise of criminal jurisdiction) 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, and that
notwithstanding anything hereinbefore provided an appeal
shall lie to the said High Court from a judgment of one Judge of
the said High Court or one Judge of any Division Court,
pursuant to Section 108 of the Government of India Act, made
on or after the first day of February, one thousand nine
hundred and twenty-nine 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.
18. 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.
Thus, the question that is required to be posed is whether the
learned Single Judge, in the obtaining factual matrix has
exercised criminal jurisdiction or not.
22. From the aforesaid authority, two aspects are absolutely
clear. First, where an appeal is not excluded against the
judgment of the High Court of a Single Judge, an appeal would
lie to the Division Bench and second, if the appropriate
Legislature has expressly or by necessary implication not taken
away a right of appeal, the appeal shall lie from the Single
Judge under Clause 10 of the Letters Patent to the High Court.
26. The purpose of referring to this judgment is that till a
competent legislature takes away the power of the Letters
Patent, the same can be exercised by the High Court. However,
while exercising the power under the Letters Patent, it is
imperative to see what is the nature of jurisdiction that has
actually been provided in the Letters Patent. The exercise of
jurisdiction has to be within the ambit and scope of the
authority enshrined in the provision meant for intra-court
appeal.
31. 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.
41. We have referred to these decisions only to highlight that it
is beyond any shadow of doubt that the order of civil court can
only be challenged under Article 227 of the Constitution and
from such challenge, no intra-court appeal would lie and in
other cases, it will depend upon the other factors as have been
enumerated therein.
42. At this stage, it is extremely necessary to cull out the
conclusions which are deducible from the aforesaid
pronouncements. They are:-
42.1 An appeal shall lie from the judgment of a Single Judge to
a Division Bench of the High Court if it is so permitted within
the ambit and sweep of the Letters Patent.
42.2. The power conferred on the High Court by the Letters
Patent can be abolished or curtailed by the competent
legislature by bringing appropriate legislation.
42.3. A writ petition which assails the order of a civil court in
the High Court has to be understood, in all circumstances, to be
a challenge under Article 227 of the Constitution and
determination by the High Court under the said Article and,
hence, no intra-court appeal is entertainable.
42.4. The tenability of intra-court appeal will depend upon the
Bench adjudicating the lis as to how it understands and
appreciates the order passed by the learned Single Judge.
There cannot be a straitjacket formula for the same.
46. The crux of the present matter is whether the learned Single
Judge has exercised "civil jurisdiction" or "criminal jurisdiction".
In that regard, Mr.Visen has strenuously contended that the
Lokayukta is a quasi- judicial authority and the proceeding
being quasi-judicial in nature, it cannot be regarded as one
relatable to criminal jurisdiction, but it may be treated as a
different kind or category of civil proceeding. His argument is
supported by the Full Bench decision of the High Court of
Andhra Pradesh in Gangaram Kandaram v. Sunder Chikha
Amin and others[30]. In the said case, a writ petition was filed
for issue of a writ of mandamus to declare the action of the
respondents in registering crimes under Sections
420 and 406 of the Indian Penal Code against the writ
petitioner in FIR Nos. 14/97, 137/97 and 77/97 as illegal and
to quash the same. The learned Single Judge had allowed the
writ petition by order dated 06.08.1997 and quashed the FIRs.
The order passed by the learned Single Judge was assailed by
the 7th respondent in intra-court appeal. The Full Bench posed
the following question:-
"Whether appeal under Clause 15 of the Letters Patent of the
Court lies against the judgment in such a case. In other words,
whether a proceeding for quashing of investigation in a criminal
case under Article 226 of the Constitution of India is a civil
proceeding and the judgment as above is a judgment in a civil
proceeding in exercise of the original jurisdiction of the Court for
the purposes of appeal under Clause 15 of the Letters Patent."
56. 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 (supra), have laid emphasis on the
seed of initiation of criminal proceeding, the consequence of a
criminal proceeding and also the nature of relief sought before
the 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 has been
passed in exercise of extraordinary jurisdiction under Article
226 of the Constitution or inherent jurisdiction under Section
482 CrPC.
61. In the case at hand, the writ petition was filed under Article
226 of the Constitution for quashing of the recommendation of
the Lokayukta. The said recommendation would have led to
launching of criminal prosecution, and, as the factual matrix
reveals, FIR was registered and criminal investigation was
initiated. The learned Single Judge analysed the report and the
ultimate recommendation of the statutory authority and thought
it seemly to quash the same and after quashing the same, as
he found that FIR had been registered, he annulled it treating
the same as a natural consequence. Thus, the effort of the writ
petitioner was to avoid a criminal investigation and the final
order of the writ court is quashment of the registration of FIR
and the subsequent investigation. In such a situation, to hold
that the learned Single Judge, in exercise of jurisdiction
under Article 226 of the Constitution, has passed an order in a
civil proceeding as the order that was challenged was that of
the quasi- judicial authority, that is, the Lokayukta, would be
conceptually fallacious. It is because what matters is the nature
of the proceeding, and that is the litmus test.
62. In view of the aforesaid prismatic reasoning, the irresistible
conclusion is that the Letters Patent Appeal was not
maintainable before the Division Bench and, consequently, the
order passed therein is wholly unsustainable and, accordingly,
it is set aside. However, as the State had been diligently
agitating its grievance in a legal forum which it thought had
jurisdiction, we grant liberty to the State to assail the order of
the learned Single Judge in accordance with law.
63. Consequently, the appeal is allowed and the impugned
order is set aside. However, liberty is granted to the State to
challenge the order of the learned Single Judge. There shall be
no order as to costs."
The above referred paragraphs, out of a total of 63 paragraphs of In
Re: Ram Kishan Fauji, to the mind of this Court, act as the appropriate
signage guiding this set of judicial traffic amply buttressed by reported
authorities. Mr. Patwalia argues that the facts involved in the present
appeals are apropo the facts In Re: Ram Kishan Fauji (supra). It is submitted
that it would be evident from the pleadings and the discussion by the
Hon'ble Single Bench in the order impugned dated 6th of September 2021
that the primary nature of the reliefs granted to the writ petitioner under
challenge in these appeals is in exercise of criminal jurisdiction.As provided
by the Letters Patent and noticed In Re: Ram Kishan Fauji, it is no more res
integra that the exercise of criminal jurisdiction can be subjected to an
intra-Court appeal.
It is submitted that the prayer for transfer of investigation to the CBI
is an alternate prayer which is not part of the reliefs granted in the writ
petition at this stage. Mr. Patwalia then proceeds to distinguish the decision
of a Hon'ble Divison Bench of this Court In Re: Director General of Police
Versus Gopal Kr. Agarwal, MAT 318 of 2019 with MAT 353 of 2019 (2020
SCC Online Calcutta 755). Pointed reference has been made to Paragraphs
14,15,16,22,23 and 28 of In Re: Gopal Kr. Agarwal.
The aforesaid paragraphs read as follows:-
"14.We have carefully considered the submissions made by the
Learned Senior Counsel for the respective parties on the point of
maintainability of these two intra court appeals. The short
question is whether or not the Learned Single Judge passed the
impugned order in exercise of criminal jurisdiction.
15. In the present case, a criminal case was instituted on the
complaint of the writ petitioner (who is the respondent no.1 in
MAT 318 of 2019 and hereinafter referred to as 'Gopal') against
the appellant (hereinafter referred to as 'Manoj') in MAT 353 of
2019. Criminal investigation started. Being aggrieved by and
dissatisfied with the manner in which the investigation was
proceeding, Gopal approached the Learned Single Judge by
filing an application under Article 226 of the Constitution of
India praying for change of the investigating agency. According
to him, the investigation was being done in a biased manner to
protect Manoj for the reasons alleged by him in the writ petition.
The Learned Single Judge was of the opinion that there was
substance in Gopal's contention and accordingly directed
substitution of CBI as the Investigating Authority in the place
and stead of CID.
16. In his writ petition, Gopal did not pray for quashing of the
criminal proceedings and naturally so because he is the de-
facto complainant. Nor did Gopal pray for an order for initiation
of a criminal proceeding since the criminal proceeding already
stood initiated. The order of the Learned Single Judge which is
impugned before us neither had the effect of causing initiation
of a criminal proceeding nor had the effect of quashing or
terminating a criminal proceeding. The Learned Judge was of
the view that the investigation was not being conducted in a
proper manner and accordingly directed change of the
investigating agency. This, in our considered opinion, did not
amount to exercise of criminal jurisdiction by the Learned Single
Judge.
22. The facts in the case of Ram Kishan Fauji (supra) are
different from the facts in the present case. In that case the
Learned Single Judge's order had a consequence which was
clearly criminal in nature. The Learned Single Judge opined
that the recommendation of the Lokayukta for registration of
FIR against Ram Kishan Fauji deserved to be quashed and
accordingly quashed the same and also quashed all actions
taken pursuant to such recommendation including the FIR. This
led to the termination of the criminal proceeding. In the present
case, the impugned order of the Learned Single Judge does not
have any such consequence. Neither the impugned order was
the reason for initiation of criminal proceeding nor for
termination of any criminal proceeding. In our view, the Learned
Single Judge merely upheld the civil right of the writ petitioner
(Gopal) to have a fair and impartial investigation conducted in
connection with the alleged unnatural death of his sister, as
was claimed by him. No point of criminal law was decided by
the Learned Single Judge. The impugned order cannot be said
to have been passed in criminal domain. We are in respectful
agreement with the ratio decidendi of the decisions of the
Division Bench of the Gujarat High Court and the Full Bench of
the Delhi High Court which were approved by the Hon'ble
Supreme Court in the case of Ram Kishan Fauji (supra), as
mentioned above. Reading the Hon'ble Supreme Court's
decision in the case of Ram Kishan Fauji (Supra) as a whole,
we cannot accept the contention of Learned Senior Counsel
representing Gopal (writ petitioner) that if the High Court in
exercise of power under Article 226 of the Constitution passes
an order which has even the remotest connection with a
criminal case, then the order must be said to have been passed
in exercise of criminal jurisdiction, notwithstanding that the
order by itself does not have any criminal consequence in the
sense that it neither directs initiation of a criminal proceeding
which may have penal consequences for the accused person,
nor it directs quashing or termination of a criminal proceeding
thereby relieving the accused person of possible penal
consequences. In our considered view, the decision in Ram
Kishan Fauji (supra) does not advance the case of the writ
petitioner on the point of maintainability of these appeals.
23. In this connection it may also be noted that the Hon'ble
Supreme Court in Ram Kishan Fauji (supra) at Paragraph 42 of
the Judgment observed, inter alia, that: "The tenability of intra-
court appeal will depend upon the Bench adjudicating the lis as
to how it understands and appreciates the order passed by the
learned Single Judge. There cannot be a straitjacket formula for
the same." In our understanding, in the facts of the present
case, the Learned Single Judge was exercising civil jurisdiction
under Article 226 of the Constitution and not criminal
jurisdiction.
28. For the aforesaid reasons we hold that the present appeals
are maintainable and not barred by Clause 15 of the Letters
Patent, 1865."
It is hence submitted that since the alternate prayer for transfer of
investigation to the CBI was not considered by the order dated 6th of
September 2021, the nature of the reliefs granted by the Hon'ble Single
Bench granting interim protection to the writ petitioner qua the FIRs
registered against him being in the nature of exercise of criminal jurisdiction
by the Hon'ble Single Bench, the ratio of In Re: Ram Kishan Fauji shall
squarely apply.
Mr. Patwalia also relies upon the authority of In Re: K.N. Pudur, 2018
SCC online Madras 13542,to fortify his arguments.
The ad interim order of the Hon'ble Apex Court In Re: Anup Majee
Versus The Central Bureau of Investigation & Ors. in Special Leave to Appeal
(Crl.) No(s). 1620-1621/2021 dated 22-02-2021, is also produced to assert
the correctness of the law holding the field as laid down In Re: Ram Kishan
Fauji.
Per Contra, Mr. Siddharth Luthra, Learned Senior Counsel appearing
for the appellant, the State of West Bengal in MAT-II (MAT 970 of 2021),
submits that the reliefs granted by the Hon'ble Single Bench are way
beyond pleadings and blanket in nature. It is submitted that the issue in
these appeals is not an issue of exercise of criminal or other jurisdiction but
an issue of the Hon'ble Single Bench having no jurisdiction at all to act in
the manner it has, granting sweeping reliefs.
It is submitted that the writ petitioner/ the respondent No.1 is not
named in the FIRs connected to MAT 970 of 2021.Therefore, there could be
no question of the writ petitioner/the respondent No.1 harbouring any
apprehension as sought to be made out invoking the Writ Jurisdiction of the
Court. Axiomatically therefore, there is improper exercise of jurisdiction in a
vacuum by the Hon'ble Single Bench.
Mr. Luthra reiterates the position that primarily the grounds made out
in the writ petition relate to transfer of investigation to the CBI. Therefore,
the basis of the present intra-Court appeals should be assessed on such a
premise. The anticipated relief granted by the Hon'ble Single Bench qua any
future FIR if filed against the writ petitioner/ respondent No.1, is again in
exercise of an unborn jurisdiction.
It is submitted that the reliance In Re: Ram Kishan Fauji is
misconceived. It is pointed out that MAT 970 of 2021 is thus maintainable.
The authority of 2021) SCC Online Madras 2367 is produced in support of
his arguments by Learned Senior Counsel.
Mr. Vikash Singh, Learned Senior Counsel also appearing for the
State appellants in MAT 970 of 2021 with MAT 840 of 2021, places
particular reliance on the reported authorities of In Re: Lalita Kumari Versus
Government of Uttar Pradesh and Others reported in (2014) 2 Supreme Court
Cases 1 and In Re: Neeharika Infrastructure Pvt. Ltd. Versus State of
Maharashtra and Others reported in 2021 SCC OnLine SC 315.
It is submitted that at Paragraphs 45 and 80 of In Re: Neeharika, the
principles of intervention by the Hon'ble Court in cases of this type have
been laid down. It is pointed out that intervention can happen only in the
rarest of cases. It is submitted that the Hon'ble Single Bench has granted
blanket anticipated reliefs qua non-existent future FIRs. Such an exercise
can and must be interdicted in these intra-Court appeals, since wrongful
assumption of jurisdiction is not the same as jurisdiction irregularly
exercised.
Arguing for the appellants/ the de facto complainant in MAT 993 of
2021, Mr. Debasis Roy, Learned Counsel, submits that the order impugned
is based on surmise since the writ petitioner has been unable to make out
any case of his being the named accused in the FIR connected to MAT 993
of 2021. It is not possible to speculate the outcome of the investigation. The
Hon'ble Single Bench granted sweeping interim protection to the writ
petitioner/ the respondent No.1 acting on speculation and surmise. The
prima facie conclusion drawn by the Hon'ble Single Bench of false
implication of the writ petitioner/ the respondent No.1 in the FIR in issue in
this appeal, is an instance of judicial overreach which can be corrected in an
intra-Court appeal.
Mr. Roy contends that it is the adjudicating Court which can take the
call whether the reliefs claimed are of a nature which automatically render
the intra-Court appeal to be non-maintainable. Learned Counsel points out
that the application of the Letters Patent should be considered not
unilaterally but, in the context of the Appellate Side Rules guiding Writ
proceedings.
Having heard the parties and having considered the materials placed,
this Court arrives at the following findings:-
A) That the primary reliefs granted by the Hon'ble Single Bench
pertain to the exercise of Criminal Jurisdiction;
B) That the alternate relief of transfer of investigation to the CBI has
not been considered on merits at this stage by the Hon'ble Single
Bench;
C) That the ratio of In Re: Ram Kishan Fauji applies apropo the facts
of this case.
D) That the Letters Patent of the High Court at Calcutta hence act as
a bar to filing an intra-Court appeal.
E) That the ratio of In Re: Gopal Kumar Agarwal rests on the point of
grant of the relief of transfer of investigation and, such relief
being alternate and not under consideration by the impugned
order, is hence not apropo the present factual scenario.
F) This Court has considered the demurrer on the touchstone of the
nature of the jurisdiction exercised by the Hon'ble Single Bench
and, not on the composition of the Hon'ble Single Bench sitting in
Article 226 jurisdiction, by following the law laid down In Re: Ram
Kishan Fauji.
In the backdrop of the above discussion and findings, this batch of
analogous intra-Court appeals are held to be not maintainable.
Parties are at liberty to apply before the appropriate forum/Court.
All points on merits are left open to be decided by the appropriate
forum/Court.
MAT 993 of 2021 with IA No. CAN 1 of 2021 with MAT 970 of
2021 with IA No. CAN 1 of 2021 with 840 of 2021 with CAN 1 of
2021stands accordingly disposed of.
There will be, however, no order as to costs.
Parties shall be entitled to act on the basis of a server copy of this
Judgement and Order placed on the official website of the Court.
Urgent Xerox certified photocopies of this judgment, if applied for, be
given to the parties upon compliance of the requisite formalities
I agree.
(Kesang Doma Bhutia, J.) (Subrata Talukdar, J.)
