C.S. Agarwal vs State & Ors.
2011 Latest Caselaw 3611 Del

                                  REPORTABLE

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                               LPA No.819 of 2010

                                          with

                                LPA No.825 of 2010


                                                   Reserved on: May 31, 2011
%                                                Pronounced on: July 29, 2011


+      LPA No.819 of 2010


       C.S. AGARWAL                                           . . . APPELLANT


                                     VERSUS


       STATE & ORS.                                         . . .RESPONDENT


+      LPA No.825 of 2010


       D.K. JAIN                                              . . . APPELLANT


                                     VERSUS


       STATE & ORS.                                         . . .RESPONDENT



Counsel for the Appellant:                  Mr. Sandeep Sethi, Sr. Advocate, Mr.
                                            Siddharth Luthra, Sr. Advocate, Mr.
                                            Arvind Nigam, Sr. Advocate with Ms.
                                            Ramjana Roy Gawai, Mr. P.K. Dubey,
                                            Mr. Abhishek Kr. Rai, Mr. Kunal Sood,
                                            Mr. Shailesh Suman, Mr. Anurag
                                            Yadav, Mr. Arshadeep Singh, Ms.




LPA No.819 of 2010 & LPA No.825 of 2011                             Page 1 of 34
                                           Vasudha Sen, Mr. Madhur Jain,
                                          Advocate in LPA No.819 of 2010.

                                          Mr. Sakal Bhushan with Mr. Sumit
                                          Gupta, Advocate in LPA No.825 of
                                          2010.


Counsel for the Respondent:               Mr. K.T.S. Tulsi, Sr. Advocate, Mr.
                                          Ramesh Gupta, Sr. Advocate with Mr.
                                          Rajinder Singh, Mr. Gaurav M.
                                          Librahem,   Mr.    Lalit Choudhary,
                                          Advocates for the Respondent No.3.

                                          Mr. Ranjit Kapoor, ASC for the State.


CORAM :-

       HON'BLE MR. JUSTICE A.K. SIKRI
       HON'BLE MR. JUSTICE SURESH KAIT
       HON'BLE MR. JUSTICE M.L. MEHTA

       1.     Whether Reporters of Local newspapers may be allowed
              to see the Judgment?

       2.     To be referred to the Reporter or not?

       3.     Whether the Judgment should be reported in the Digest?


A.K. SIKRI, J.

1. C.S. Agarwal, the appellant in LPA No.819 of 2010, had filed

Writ Petition (Crl.) No.57 of 2010 invoking the jurisdiction of this

Court under Article 226 of the Constitution of India read with

Section 482 of the Code of Criminal Procedure seeking

appropriate writ for quashing the FIR No.264/2009 dated

23.12.2009 lodged against him and others by the Economic

Offences Wing, Crime and Railways, Delhi under Sections

420/406/120-B of the Indian Penal Code. The said writ petition

has been dismissed vide orders dated 11.11.2010 passed by

the learned Single Judge of this Court and against that order

LPA No.819 of 2010 has been preferred by C.S. Agarwal.

2. Another accused in the said FIR is D.K. Jain. He has also filed

LPA No.825 of 2010 challenging the same judgment, inter alia,

on the ground that some of the observations in the said orders

are prejudicial to him and therefore, he is also an aggrieved

party. The respondents took a primary objection to the

maintainability of these LPAs contenting the judgment of the

learned Single Judge was passed in exercise of criminal

jurisdiction and a Letters Patent Appeal against such an order is

clearly barred by Clause 10 and Clause 18 of the Letters Patent

Constituting the High Court of Judicature at Lahore, which is

application to the Judicature of High Court of Delhi as well.

3. The Division Bench heard the matter on this aspect and vide

orders dated 14.01.2011 deemed it appropriate to refer the

matter to the Full Bench making following reference for

consideration:

"22. Accordingly, we make following reference for consideration the Full Bench:

"Whether the writ petition filed under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure for quashing a FIR amount to invoking „original jurisdiction‟ or these proceedings are to be treated as invoking „criminal jurisdiction?"

4. This is how the matter came to be heard by this Bench and the

arguments were heard on the aforesaid reference. We may

point out at this stage itself that if the answer to the reference

is that Shri C.A. Agarwal, by means of the aforesaid W.P.(Crl.)

NO.57 of 2010 had invoked "original jurisdiction" the Letters

Patent Appeal would be competent. On the other hand, if those

proceedings are to be treated as invoking "criminal

jurisdiction", then the consequence would be that intra-Court

appeal, by means of present Letters Patent Appeal is barred by

Clause 10 invoking Letters Patent Constituting the High Court

of Judicature at Lahore, which parties agree, is applicable to the

High Court of Delhi as well. The Division Bench while making

the reference has stinctly stated the factual matrix of the

events which led C.S. Agarwal to file the aforementioned writ

petition. In order to understand the arguments of both the

parties, we are reproducing the facts as stated by the Division

Bench in its order dated 14.01.2011:

Mr. C. S. Aggarwal, director of M/S Rockman Projects

Limited (referred to as „RPL‟), made a representation, for the

purpose of securing investment, to Mr. Sameer Kohli, director

M/S Kohli Housing and Development Pvt. Ltd( in short KHPDL)

that the RPL is intending to develop one SEZ on 250 acres

land, which is owned by the RPL, situated on Delhi-Jaipur

Highway at village Shidhrawali, Gurgaon, Haryana and for this

project the petitioner has received in-principal approval dated

22.08.2006 from the Government of India. On the basis of this

representation, after being got convinced by the petitioner that

he has full authority, supported by the Board resolution dated

14.05.2007, to enter into commercial deals on behalf of RPL,

respondent no. 3 agreed to buy 74% shares worth Rs. 185

crores in the Special purpose vehicle (SPL) formed for this

purpose. Respondent No. 3 was told that when the final

notification regarding SEZ will be received by the company, it

will transfer the land to the SPV. In pursuant to this agreement,

one MoU dated 18th June 2007 was signed and advance

payment of Rs. 40 crores was made by the respondent no. 3 on

the condition that either this advance will be refunded back to

him or the land of 250 acres would be transferred in favour of

him in case the SEZ notification is not received by 31st

December 2008. This amount was to be utilized for the

purpose of consolidation and procurement of more land.

Subsequently, an amount of Rs. 3 crores was further given to

the petitioner by respondent no.3 and he entered into a

Shareholder agreement and an FDI investor Xander with RPL

on 19th February 2008, which was to come into effect only if

the SEZ notification has been received by 31st December

2008. However no notification could be received by RPL by 31 st

December 2008; instead on the same day, Mr. D. K. Jain, the

other director of RPL, issued a public notice revoking all

authority given to the petitioner to act on behalf of RPL. In

September 2009, the petitioner published a counter public

notice claiming thereby that RPL had 99 years lease

agreement with D. K. Jain‟s land owing company for 250 acres

of land and also had an agreement to sell in his favour for the

entire land.

After the expiration of the deadline of 31st December

2008, respondent no. 3 demanded back his money but all of

his efforts in this direction went into vain. During the

investigation, carried on by the respondent on its own, he

came to know that it was falsely represented to him that RPL

had 250 acres land and instead only 170 acres of land was

available. Even the authority, which issued approval letter, was

provided with wrong information on this account that the

applicant fulfills the criteria of having a minimum of 250 acres

of land for the purpose of development of SEZ. It was also

revealed to the respondent no. 3 that no such payment was

made by the petitioner herein for the purpose of purchasing

more land as agreed between the parties in the MoU and

subsequently represented by the petitioner herein to the

respondent no. 3. Under these circumstances, the respondent

no. 3 filed a complaint dated 12.10.2009 at Hauz Khas police

station. He also lodged a similar complaint dated 14.10.2009

with Dy. Commissioner of Police, Economic Offences Wing

Crime and Railways, Delhi, in pursuant to which a FIR

no.266/09 dated 23.12.2010 was registered against the

appellant herein under Sections 420/406/120-B of the Indian

Penal Code.

The appellant Sh. C.S. Aggarwal, by way of W.P. (Crl.) No.

57 of 2010 filed under article 226 of the Indian Constitution r/w

section 482 Cr.P.C. challenged the registration of the aforesaid

FIR and sought quashing of the same. However, Learned Single

Judge of this High Court found no merit in that petition and

dismissed the same vide order dated 11.11.2010 on the

ground that the investigation done by the EOW clearly

indicates that the petitioner had, from the very beginning, a

dishonest intention to cheat the respondent no.3. Feeling

aggrieved by the dismissal of his writ petition, the appellant

Sh. C.S. Aggarwal has preferred the Letter Patent Appeal under

clause 10 of the Letter Patent Act of the Punjab and Lahore

High Court which is applicable to the Delhi High Court. Sh. D.K.

Jain has also filed LPA raising the grievance that even when he

was not a party to the writ proceedings, the learned Single

Judge had made observations prejudicial to his interest at his

back.

5. Before we analyze the respective contentions it would be

appropriate to mention at the outset that the Delhi High Court

was constituted not by the Letters Patent but by the Delhi High

Court Act, 1966 (in short „the DHC Act‟). The counsels have

proceeded on the premise that the Letters Patent as applicable

to the erstwhile Punjab and Lahore High Courts are applicable

to the Delhi High Court. Section 5 of the DHC Act confers

original jurisdiction to the Delhi High Court while Section 10

thereof confers appellate jurisdiction. These provisions read as

follows:

"5. Jurisdiction of High Court of Delhi. -

(1) The High Court of Delhi shall have, in respect of the territories for the time being included in the Union territory of Delhi, all such original, appellate and other jurisdiction as, under the law in force immediately before the appointed day, is exercisable in respect of the said territories by the High Court of Punjab. (2) Notwithstanding anything contained in any law for the time being in force, the High Court of Delhi shall also have in respect of the said territories ordinary original civil jurisdiction in every suit the value of which exceeds rupees twenty lakhs.

10. Powers of Judges. -

(1) Where a single Judge of the High Court of Delhi exercises ordinary original civil jurisdiction conferred by sub-section (2) of section 5 on that Court, an appeal shall lie from the judgment of the single Judge to a Division Court of that High Court.

(2) Subject to the provisions of sub-section (1), the law in force immediately before the appointed day relating

to the powers of the Chief Justice, single Judges and Division Courts of the High Court of Punjab and with respect to all matters ancillary to the exercise of those powers, shall, with the necessary modifications, apply in relation to the High Court of Delhi."

6. In addition to the appeals that can be filed under section 10 of

the DHC Act, three more categories of appeals lie to this Court.

Thus the following four categories constitute appellate

jurisdiction of the Delhi High Court:

a. Firstly, appeals under Section 10 of the DHC Act but they

are limited only to those judgments referable to Section

5(2) thereof.

b. Secondly, appeals under the Code of Civil Procedure.

c. Thirdly, appeals under different statutes, which itself

provides for an appeal.

d. Fourthly, appeals under Clause 10 of the Letters Patent.

7. Here we are concerned only with the fourth category. Clause

10 of the Letters Patent 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 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 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 of 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."

8. This clause clearly prohibits maintainability of an intra-court

appeal if the impugned judgment is passed in exercise of:

1. Revisional Jurisdiction

2. The power of superintendence

3. Criminal Jurisdiction

9. Similarly, clause 18 of the same Letter Patent provides that no

appeal would lie from any sentence or order passed or made by

the courts of original jurisdiction.

10. Since reference was made to Clauses 15, 17 and 18, we deem

it proper to reproduce those Clauses as well:

"15. Ordinary original criminal jurisdiction of the High Court - And we do further ordain that the High Court of Judicature at Lahore shall have ordinary original criminal jurisdiction in respect of all such persons within the

Provinces of the Punjab and Delhi as the Chief Court of the Punjab had such criminal jurisdiction over immediately before the publication of these present.

17. Extraordinary original criminal jurisdiction - And we do further ordain that the High Court of Judicature at Lahore shall have extraordinary original criminal jurisdiction over all persons residing in places within the jurisdiction of any Court subject to its Superintendence, and shall have authority to try at its discretion any such persons brought before it on charges preferred by any Magistrate or other officer specially empowered by the Government in that behalf.

18. No appeal from High Court exercising original jurisdiction Court may reserve points of law - And we do further ordain that there shall be no appeal to the High Court of Judicature at Lahore from any sentence or order passed or made by the Courts of original criminal jurisdiction which may be constituted by one or more Judges of the said High Court. But it shall be at the discretion of any such Court to reserve any point or points of law for the opinion of the said High Court."

11. Keeping in mind the aforesaid provision, we have to answer

the question as to whether the judgment passed by the learned

Single Judge in the writ petition filed by C.S. Agarwal was in

exercise of „criminal jurisdiction‟.

12. As is clear from the reading of the Reference order of the

Division Bench (which was the position maintained before us as

well), the counsel for the parties on both the sides are at ad

idem that when a writ petition is filed originally in the

jurisdiction of this Court, Letters Patent Appeal is maintainable

against the order passed by the learned Single Judge in such a

writ petition. The parties have, joined, issues on the question

as to whether writ petition filed for quashing the FIR should be

treated as invoking „criminal jurisdiction‟ of the High Court.

13. On the aforesaid issue, arguments were advanced by Mr.

Sandeep Sethi, Mr. Siddharth Luthra and Mr. Arvind Nigam,

learned Senior Counsels appearing for the appellants. On

behalf of the respondents Mr. K.T.S. Tulsi and Mr. Ramesh

Gupta, learned Senior Counsels put forth their submissions

which were supplemented by Mr. Gaurav M. Librahem.

Mr. Ranjit Kapoor, ASC appeared for the State, who also

contested the filing of LPA. We have given our thoughtful

considerations to all these submissions.

14. We are not reproducing, at this juncture, the arguments

advanced by the Counsels of both the sides. Instead, we would

like to proceed with our analysis of law and reasons in support

of our view, viz., when writ petition is filed seeking quashing of

FIR, Letters Patent Appeal would not be maintainable against

the order passed by the learned Single Judge in such a writ

petition. However, we clarify that while giving our analysis, we

shall be touching upon each and every argument raised before

us.

15. Clause 10 of the Letters Patent Appeal, as pointed out above,

debars the filing of intra-court appeal against the order of the

Single Judge passed in exercise of revisional jurisdiction, the

power of superintendence and the criminal jurisdiction. Since

we are concerned with the case falling in the last category, the

exact words used in Clause 10 in this behalf are "not being a

sentence or order passed or made in exercise of criminal

jurisdiction of one Judge or the said High Court ........." The

contention of the appellants is that the impugned order has to

be a sentence or order in exercise of criminal jurisdiction. It is

argued that in the present case, FIR is registered against the

appellants under Section 154 of Code of Criminal Procedure.

The matter is still at the stage of investigation. No

report/Challan is filed under Section 173 of the Code of Criminal

Procedure by the Investigating Agency so far. In the absence

of any such report/Challan under Section 173 of the Code of

Criminal Procedure, the Criminal Court of competent

jurisdiction has yet to take cognizance of the matter. At this

stage itself, when the matter is still under investigation, C.S.

Agarwal felt aggrieved by the very act of registration of FIR on

the part of the Investigating Agency, i.e., Police Authorities. It

is for this reason, the prayer made in the writ petition is to

quash the FIR. Such a writ petition seeking quashing of the FIR

when the matter is still at the stage of investigation is

permissible under Article 226 of the Constitution of India has

held by the Apex Court in the case of State of Haryana Vs.

Bhajan Lal [1992 Supp. (1) SCC 335]. Of course, the scope

of such a jurisdiction is very limited and available only in

exceptional circumstances to prevent abuse of any Court of

otherwise secure the ends of justice. Some incidences of such

kind of cases were highlighted by the Supreme Court in the

aforesaid judgments making it clear that the said list was not

exhaustive.

16. It was vehemently argued by the learned counsel appearing on

behalf of the appellant that when such a power is exercised by

the High Court whether under Section 482 of Code of Criminal

Procedure or under Article 226 of the Constitution of India and

the registration of FIR is quashed, it amounts to quashing of

„criminal proceedings‟ as the consequence of registration of FIR

is to initiate „criminal proceedings‟. According to the learned

counsels, it is to be distinct from exercise of „criminal

jurisdiction‟ which expression occurs in Clause 10 of Letters

Patent Appeal. On this basis, argument was that the order

passed in such a petition is not in exercise of any „criminal

jurisdiction‟, but relates to „criminal proceedings‟. Advancing

this proposition, it was also argued that the Letters Patent

Appeal does not make any provision for writ jurisdiction. It only

provides for appeal under Clause 10 against certain categories

of orders. Insofar as proceedings under Article 226 are

concerned, the same are „original‟ and „extraordinary‟ in

nature.

17. There cannot be any quarrel about the nature of proceedings

under Article 226 of the Constitution. In the case of State of

Uttar Pradesh and Others Vs. Dr. Vijay Anand Maharaj

[AIR 1963 SC 946], the Constitution Bench of the Apex Court

had the occasion to explain the nature of proceedings under

Article 226 of the Constitution. That was a case where an

assessment order was passed under the U.P. Agricultural

Income Tax Act 1948 (3 of 1949). Those assessments which

were without jurisdiction were validated by U.P. Act 14 of 1956

giving, at the same time, right to the assessee to review orders

made under U.P. Act, 1956. The assessment order made by

the Additional Collector under the U.P. Act 3 of 1949 by

challenging the writ petition under Article 226 of the

Constitution and the learned Single Judge of the Allahabad High

Court had set aside the order on the ground that the

assessment was without jurisdiction. As pointed out above, all

such assessments were validated by the U.P. Act 14 of 1956

with retrospective effect. Since the power to review was given,

an application for review made to the Single Judge who had

passed an order under Article 226 of the Constitution was filed

which was dismissed on the ground that the U.P. Act 14 of 1956

did not apply to orders under Article 226. The Letters Patent

Appeal against this order was taken to a Division Bench, which

was dismissed, inter alia, on the ground that order dismissing

review application was not a „judgment‟ within the meaning of

High Court Rules and therefore, was not appellable.

Challenging this order of the Division Bench, State of U.P. had

approached the Supreme Court. In the aforesaid backdrop, the

question arose about the nature of proceedings and the scope

of jurisdiction under Article 226 of the Constitution. The

Constitution Bench explained the nature of proceedings under

Article 226 in the following manner:

"Article 226 confers a power on a High Court to issue the writs, orders, or directions mentioned therein for the enforcement of any of the rights conferred by Part III or for any other purpose. This is neither an appellate nor a revisional jurisdiction of the High Court. Though the power is not confined to the prerogative writs issued by the English Courts, it is modeled on the said writs mainly to enable the High Courts to keep the subordinate tribunals within bounds. Before the Constitution, the chartered High Court, that is, the High Courts at Bombay, Calcutta and Mad- ras, were issuing prerogative writs similar to those issued by the King's Bench Division, subject to the same limitations imposed on the said. writs. In Venkataratnam v. Secretary of State, ILR 53 Mad 979 : (AIR 1938 Mad 896), a division Bench of the Madras High Court, consisting of Venkatasubba Rao and Madhavan Nair, JJ,; held that the jurisdiction to issue a writ of certiorari was original jurisdiction. In Ryots of Garabandha v. The Zamindar of Parlakimedi (1), another division Bench of the same High Court, consisting of Leach, C. J., and Madhavan Nair J., considered the question again incidentally and came to the same conclusion "and held that a writ of certiorari is issued only in exercise of the original jurisdiction of the High Court. In Ramayya v. State of Madras (2), a division Bench,

consisting of Govinda Menon and Ramaswami Oounder, JJ,, considered the question whether the proceedings under Art. 226 of the Constitution are in exercise of the original Jurisdiction or revisional jurisdiction of the High Court, and the learned Judges held that the power to issue writs under Art. 226 of the Constitution is original and the jurisdiction exercised is original jurisdiction. In Moulvi Hamid Hassan Nomani v. Banwarilal Boy (3), the Privy Council was considering the question whether the original civil jurisdiction which the Supreme Court of Calcutta possessed over certain classes of persons outside the territorial limits of that jurisdiction has been inherited by the High Court. In that context the Judicial Committee observed:

"It cannot be disputed that the issue of such writs is a matter of original jurisdiction".

The Calcutta. High Court, in Budge Budge Munici- pality v. Mangru, 57 Cal WN 25 : (AIR 1953 Cal. 433) (SB), came to the same conclusion, namely, that the jurisdiction exercised under Art. 226 of the Constitution is original as distinguished from appellate or revisional jurisdiction; but the High Court pointed out that the jurisdiction, though original, is a special jurisdiction and should not be confused with ordinary civil jurisdiction under the Letters Patent. The Andhra High Court in Satyanarayanamurthi v. 1. T. Appellate Tribunal (1) described it as an extraordinary original jurisdiction. It is, therefore, clear from the nature of the power conferred under Art. 226 of the Constitution and the decisions on the subject that the High Court in exercise of its power under Art. 226 of the Constitution exercises original jurisdiction, though the said jurisdiction shall not be confused with the ordinary civil jurisdiction of the High Court. This jurisdiction, though original in character as contrasted with its appellate and revisional jurisdictions, is exercisable throughout the territories in relation to which it exercises jurisdiction and may for convenience, be described as extraordinary original jurisdiction. If that be so, it cannot be contended that a petition under Art. 226 of the Constitution is a continuation of the proceedings under the Act."

(emphasis supplied)

18. This position was reiterated by the Supreme Court in the case

of Umaji Keshao Meshram and Otehrs Vs. Smt.

Radhikabai and Another [AIR 1986 SC 1272] taking stock

of the gamut of case law including the aforesaid Constitution

Bench Judgment. The Court explained that even prior to the

commencement of the Constitution, Chartered High Courts

were possessed with the power to issue prerogative writs,

though in a much restricted form. The provisions in the nature

of Articles 226, 227 and 228 were incorporated in the

Constitution with an intention to confer the enlarged power

upon all the High Courts and not merely three Chartered High

Courts. In the process, certain significant observations were

made explaining the scope of Letters Patent Appeal dealing

with the provisions of the Letters Patent of Calcutta High Court.

We would like to reproduce the same:

"..............These several jurisdictions were conferred upon the High Courts by different clauses of the Letters Patent. Clause 14, however, specifically provided for an intra-court appeal only from judgments "in all cases of original civil jurisdiction". The marginal note to clause 14 was "Appeal from the Courts of original jurisdiction to the High Court in its appellate jurisdiction". Jurisdictions other than ordinary and extra- ordinary civil jurisdictions were conferred by clauses which followed clause 14. For this reason, it was doubted at one time whether an intra-court appeal would lie from the judgment of one Judge in the exercise of original testamentary jurisdiction but in the case of Saroda Soonduree Dossee v. Tincowree Nundee [1884] Hyde's Reports 70, a Division Bench of three Judges of the Calcutta High Court by a majority held that such an appeal would lie. The Letters Patent of 1865 followed the pattern of the Letters Patent of 1862. Clause 15 forms part of a group of clauses consisting of clauses 11 to 18 headed "Civil Jurisdiction of the High Court". Clause 12 deals with original jurisdiction as to suits and clause 13 with extra- ordinary original civil jurisdiction while clause 14 deals with joinder of several causes of action. Though the marginal note to clause 15 was the same as that to the old clause 14, a most material change was made in clause 15 by providing that

intra-court appeals would lie "from the judgment (not being a sentence or order passed or made in any criminal trial) of one Judge of the said High Court, or of one Judge of any Division Court." The word "judgment" in clause 15 is not qualified in any way as to the jurisdiction in which it is given except that it should not be a sentence or order passed or made in any criminal trial, thus excluding judgments given in the exercise of criminal jurisdiction. Criminal jurisdiction is provided for in clauses 22 to 29..........

xxx xxx xxx

98. From what has been said above it must follow that when a Single Judge of a Chartered High Court decides a petition under Articles 226 or 227, his judgment is one given pursuant to Article 225 of the Constitution and is appealable under clause 15 of the Letters Patent unless it falls within one of the excluded categories.

99. According to the Full Bench even were clause 15 to apply, an appeal would be barred by the express words of clause 15 because the nature of the jurisdiction under Article 226 and 227 is the same inasmuch as it consists of granting the same relief, namely, scrutiny of records and control of subordinate courts and tribunals and, therefore, the exercise of jurisdiction under these Articles would be covered by the expression "revisional jurisdiction" and "power of superintendence". We are afraid, the Full Bench has misunderstood this scope and effect of the powers conferred by these Articles. These two Articles stand on an entirely different footing. As made abundantly clear in the earlier part of this judgment, their source and origin are different and the models upon which they are patterned are also different. Under Article 226 the High Courts have power to issue directions, orders and writs to any person or authority including any Government. Under Article 227 every High Court has the power of superintendence over all courts and tribunals throughout the territory in relation to which it exercises jurisdiction. The power to issue writs is not the same as the power of superintendence. By no stretch of imagination can a writ in the nature of habeas corpus or mandamus or quo warranto or prohibition or certiorari be equated with the power of superintendence. These are writs which are directed against persons, authorities and the State. The power of superintendence conferred upon every High Court by Article 227 is a supervisory jurisdiction intended to ensure that subordinate courts and tribunals act within the limits of their authority and according to law (see State of Gujarat v. Vakhatsinghji Vajesinghji Vaghela A.I.R. 1968 S.C. 1487, 1488, and Ahmedabad Mfg. & Calico Ptg. Co. Ltd. v. Ram Tahel Ramanand & Ors.). The orders, directions and writs under

Article 226 are not intended for this purpose and the power of superintendence conferred upon the High Courts by Article 227 is in addition to that conferred upon the High Courts by Article 226. Though at the first blush it may seem that a writ of certiorari or a writ of prohibition partakes of the nature of superintendence inasmuch as at times the end result is the same, the nature of the power to issue these writs is different from the supervisory or superintending power under Article 227. The powers conferred by Articles 226 and 227 are separate and distinct and operate in different fields. The fact that the same result can at times be achieved by two different processes does not mean that these processes are the same.

100. Under Article 226 an order, direction or writ is to issue to a person, authority or the State. In a proceeding under that Article the person, authority or State against whom the direction, order or writ is sought is a necessary party. Under Article 227, however, what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority and according to law. Prior to the commencement of the Constitution, the Chartered High Courts as also the Judicial Committee had held that the power to issue prerogative writs possessed by the Chartered High Courts was an exercise of original jurisdiction (see Mahomedalli Allabux v. Ismailji Abdulali, Raghunath Keshav Khadilkar v. Poona Muncipality and another, Ryots of Garabandho and other villages v. Zamindar of Parlakimedi and another and Moulvi Hamid Hasan Nomani v. Banwarilal Roy and others L.R. [1946-47] 74 I.A. 120, 130-31; s.c.= A.I.R. 1947 P.C. 90, 98). In the last mentioned case which dealt with the nature of a writ of quo warranto, the Judicial Committee held:

"In their Lordships' opinion any original civil jurisdiction possessed by the High Court and not in express terms conferred by the Letters Patent or later enactments falls within the description of ordinary original civil jurisdiction."

By Article 226 the power of issuing prerogative writs possessed by the Chartered High Courts prior to the commencement of the Constitution has been made wider and more extensive and conferred upon every High Court. The nature of the exercise of the power under Article 226, however, remains the same as in the case of the power of issuing prerogative writs possessed by the Chartered High Courts. A series of decisions of this Court has firmly established that a proceeding under Article 226 is an original proceeding and when it concerns civil rights,

it is an original civil proceeding (see, for instance, State of Uttar Pradesh v. Dr. Vijay Anand Maharaj [1963] 1 S.C.R. 1, 16, Commissioner of Income-tax, Bombay and another v. Ishwarlal Bhagwandas and others [1966] 1 S.C.R. 190, 197- 8, Ramesh and another v. Seth Gendalal Motilal Patni and others [1966] 3 S.C.R. 198, 203, Arbind Kumar Singh v. Nand Kishore Prasad & Ors. [1968] 3 S.C.R. 322, 324 and Ahmedabad Mfg. & Calico Ptg. Co. Ltd. v. Ram Tahel Ramnand & Ors. [1973] 1 S.C.R. 185)."

(Emphasis supplied)

19. No doubt, as per the aforesaid pronouncements explaining the

nature of power conferred under Article 226 of the Constitution,

the High court in such proceedings exercises original

jurisdiction. At the same time, it is also clarified that the said

jurisdiction is not to be confused with the "original civil

jurisdiction" of the High Court. Further, proceedings under

Article 226 of the Constitution would be treated as original civil

proceedings only when it concerns civil rights. A fortiori, if it

concerns a criminal matter, then such proceedings would be

original criminal proceedings. Letters Patent would lie when

the Single Judge decides the writ petition in proceedings

concerning civil rights. On the other hand, if these proceedings

are concerned with rights in criminal law domain, then it can be

said that the Single Judge was exercising his „criminal

jurisdiction‟ while dealing with such a petition filed under Article

226 of the Constitution.

20. For this reason, we cannot agree with the extreme position

taken by the appellants that the exercise of powers under

Article 226 of the Constitution would never tantamount to

exercising criminal jurisdiction, irrespective of the nature of

proceedings. We, further, are of the opinion that if such a

petition relates to criminal proceedings while dealing with this

petition under Article 226 of the Constitution, the Court would

be exercising "criminal jurisdiction". In this context, it would be

relevant to refer to the judgment of the Supreme Court in

S.A.L. Narayan Row And Anr. vs Ishwarlal Bhagwandas

and Anr. [AIR 1965 SC 1818]. In that case, proceedings

were initiated under the Income Tax Act, 1922. At the

conclusion of proceedings before the High Court under Article

226, a certificate for fitness was sought under Article 131 (1)(c)

read with Article 132(1) of the Constitution. The question

before the Apex Court was as to whether the proceedings

before the High Court under Article 226 are "civil proceedings".

The Constitution Bench opined that whether the proceedings

are civil or not depends upon the nature of the right violated

and the appropriate relief which may be claimed and not upon

the nature of the Tribunal which is invested with authority to

grant relief. In the process, following pertinent observations

were made which are apposite in our context:

"A criminal proceeding on the other hand is ordinarily one in which if carried to its conclusion it may result in the

imposition of sentences such as death, imprisonment, fine or forfeiture of property."

The Court was, thus, categorical that even in a petition under

Article 226 of the Constitution when the High Court is

exercising extraordinary jurisdiction, the nature of proceedings,

whether civil or criminal, would depend upon the nature of right

violated and the nature of relief sought in the said petition.

21. We are conscious of the judgment of the Full Bench of the

Andhra High Court in the case of Gangaram Kandaram Vs.

Sunder Chhkha Amin and Others [2000 (2) ALT 448]. It

specifically held that exercise for powers under Article 226 of

the Constitution of India by issuing a writ in quashing the FIR is

not an exercise under „criminal jurisdiction‟. Following

discussion in this behalf from the said judgment is extracted

below:

"14. With regard to the second question as to whether the appeal under Clause 15 of Letters Patent of the Court lies against the judgment in such a case. In other words, whether the proceedings for quashing of the investigation in a criminal case under Article 226 of the Constitution is a civil proceeding and the judgment as above is judgment in a civil proceeding in exercise of the original jurisdiction of the Court for the purpose of appeal under Clause 15 of Letters Patent.

15. As per Clause 15 of Letters Patent, no appeal shall lie against the judgment of one Judge of the said High Court or one Judge of any Division Bench passed in exercise of appellate jurisdiction in respect of decree or order made in exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court and not being an order made in exercise of the revisional jurisdiction and not

being a sentence or order passed or made in exercise of power of superintendence of Section 107 of Government of India Act or in exercise of criminal jurisdiction. An appeal shall lie to the Division Bench under Clause 15 of Letters Patent from the judgment of one Judge of the High Court or one Judge of any Division Bench. The appeal from judgments of single Judges of the High Court shall lie to the Division Bench except the judgments prohibited by Clause

15. The learned single Judge while exercising the extraordinary jurisdiction under Article 226 quashed the criminal proceedings. In our view, the exercise powers under Article 226 of the Constitution by issuing a writ in quashing the FIR is not in exercise of criminal jurisdiction. No doubt against the order under Section 482 of Cr.PC or against the proceedings under Contempt of Court, no appeal will lie under Clause 15 of Letters Patent, but against the judgments quashing the FIR is in exercise of the original jurisdiction of the Court under Article 226, writ appeal lies under Clause 15 of Letters Patent. Issuing a writ of mandamus or certiorari by the High Court under Article 226 pertaining to a criminal complaint or proceeding cannot be said to be an order passed in exercise of the criminal jurisdiction. Therefore, we hold that an appeal lies under Clause 15 of Letters Patent."

22. The appellants have placed strong reliance on the aforesaid

judgments to buttress his submission that while exercising

powers under Article 226 of the Constitution, the learned Single

Judge was not exercising "criminal jurisdiction".

23. However a contrary view is taken by a Division Bench of the

Gujarat High Court in the case of Sanjeev Rajendrabhai

Bhatt Vs. State of Gujarat [1999 Cr.LJ 3388]. In that case,

the Gujarat High Court held that the Letters Patent Appeal

against such order is not maintainable.

24. In identical circumstances, where the learned Single Judge had

dismissed the petition filed under Article 226 of the Constitution

seeking quashing of the FIR registered under various provisions

of the Indian Penal Code and NDPS Act, albeit, on the ground of

want of territorial jurisdiction, LPA was preferred by the writ

petitioner (accused in the said FIR). The maintainability of

letters patent appeal was challenged. The Division Bench

proceeded to examine the issue of maintainability in the light

of two questions: first, whether an order passed by the Single

Judge could be said to have been made in exercise of

extraordinary powers under Article 226 of the Constitution or it

was an exercise of supervisory jurisdiction under Article 227 of

the Constitution and second, whether the order passed by the

learned Single Judge was the exercise of criminal jurisdiction

within the meaning of Clause 15 of the Letters Patent.

25. While dealing with the first question, the Division Bench

examined the nature of scope and ambit of Article 226 as well

as Article 227 of the Constitution in the light of various

pronouncements of the Supreme Court. However, no final

opinion was expressed on this question. In any case, we are

also not concerned with this aspect. Moreover, we have

proceeded on the basis that C.S. Agarwal had filed petition

under Article 226 of the Constitution and the scope of that

petition has already been examined above.

26. The Division Bench examined the second question is depth and

opined that the order passed by the learned Single Judge was

in exercise of „criminal jurisdiction‟ as referred in Clause 15 of

Letters Patent and therefore, LPA was not maintainable.

27. Referring to the judgment of the Constitution Bench in S.A.L.

Narayan Row And Anr. (supra), describing the nature of

criminal proceedings, the Division Bench of Gujarat High Court

treated such proceedings in exercise of criminal jurisdiction

giving the following rationale:

"80. In our considered opinion, in the instant case, the proceedings can be said to be criminal proceedings inasmuch as, carried to its conclusion, they may result into imprisonment, fine etc. as observed by the Supreme Court in Narayana Row.

81. From the totality of facts and circumstances, we have no hesitation in holding mat the learned single Judge has passed an order in exercise of criminal jurisdiction. At the cost of repetition, we reiterate what we have already stated earlier that the proceedings were of a criminal nature. Whether a criminal Court takes cognizance of an offence or sends a complaint for investigation under Sub-section (3) of Section 156 of the Code of Criminal Procedure, 1973 does not make difference so far as the nature of proceedings is concerned. Even if cognizance is not taken, that fact would not take out the case from the purview of criminal jurisdiction.

82. In our judgment, a proceeding under Article 226 of the Constitution arising from an order passed or made by a Court in exercise or purported exercise of power under the Code of Criminal Procedure is still a 'criminal proceeding'

within the meaning of Clause 15 of the Letters Patent. A proceeding seeking to avoid the consequences of a criminal proceeding initiated under the Code of Criminal Procedure will continue to remain 'criminal proceeding' covered by the bracketed portion of Clause 15 of the Letters Patent.

83. As Clause 15 of the Letters Patent expressly bars an appeal against the order passed by a single Judge of the High Court in exercise of criminal jurisdiction, LPAs are not maintainable and deserve to be dismissed only on that ground. We accordingly hold that the Letters Patent Appeals are not maintainable at law and they are liable to be dismissed."

28. Respectfully agreeing with the aforesaid view, we express our

inability to subscribe to the view taken by the Full Bench of the

Andhra Pradesh High Court.

29. It would be necessary to clarify here that it cannot be said that

in any of the cases under Article 226 of the Constitution, the

Court is exercising „criminal jurisdiction‟. It would depend upon

the rights sought to be enforced and the nature of relief which

the petitioner seeks in such proceedings. For example, if a writ

petition seeking writ of habeas corpus is filed, while dealing

with such a petition, the Court is not exercising criminal

jurisdiction as no criminal proceedings are pending. In fact, the

order of preventive detention is made without any trial under

the criminal law. Likewise, when a person is convicted and

sentenced after the conclusion of criminal trial and such an

order of conviction has attained finality and he files writ

petition under Article 226 of the Constitution challenging the

orders of the Government refusing to grant parole while dealing

with such a petition, the Single Judge is not exercising criminal

jurisdiction, as no criminal proceedings are pending.

30. Likewise, the proceedings under Income Tax Act filed under

Article 226 will not involve criminal jurisdiction. The judgment

of the Supreme Court in the case of Dr. Vijay Anand Maharaj

(supra) demonstrates this. The case arose out of assessment

of income tax which was challenged by way of writ petition

under Article 226 of the Constitution of India. The said

proceedings were held by the Constitutional Bench to be

"original special jurisdiction" or "extraordinary original

jurisdiction" and cannot be confused with "ordinary civil

jurisdiction".

31. For this reason, we are of the opinion that the Division Bench

judgment of this Court in the case of Harwinder Singh Vs.

Union of India [1994 (55) DLT 176] which dealt with habeas

corpus petition is of no assistance to decide the controversy

before us. Likewise, the judgment of Punjab and Haryana High

Court in the case of Adishwar Jain Vs. Union of India [2006

Cri.LJ 3193] holding LPA to be maintainable is also not relevant.

Again, that was a case of preventive detention.

32. The test, thus, is whether criminal proceedings are pending or

not and the petition under Article 226 of the Constitution is

preferred concerning those criminal proceedings which could

result in conviction and order of sentence.

33. When viewed from this angle, it is clear that if the FIR is not

quashed, it may lead to filing of Challan by the investigating

agency; framing of charge; and can result in conviction of order

of sentence. Writ of this nature filed under Article 226 of the

Constitution. Seeking quashing of such an FIR would therefore

be "criminal proceedings" and while dealing with such

proceedings, the High Court exercises its "criminal jurisdiction".

34. It would be pertinent to point out that insofar as the present

case is concerned, this view of ours becomes more formidable

when we peruse the nature of challenge that was laid by the

appellant C.S. Agarwal in the writ petition seeking quashing of

the FIR. This petition was filed under Article 226 of the

Constitution read with Section 482 of the Code of Criminal

Procedure. We are conscious of the judgment of the Supreme

Court in the case of State of Karnataka Vs. Pastor P. Raju

[2006 (6) SCC 782] holding that power to quash an FIR is only

under Article 226 of the Constitution and not under Section 482

of Code of Criminal Procedure. At the same time, one has also

to keep in mind the limited grounds on which challenge can be

predicated by filing writ petition under Article 226 of the

Constitution to which proceedings are still at the stage of

investigation after registration of FIR [State of Haryana Vs.

Bhajan Lal (supra)].

35. We would also like to point out the judgment of the Supreme

Court in the case of MMTC Vs. Commissioner of

Commercial Tax [2009 (1) SCC 8] and that of the judgment of

the Madhya Pradesh High Court in the case of Dr. Jaidev

Siddha Vs. Jaiprakash Siddha [2007 (3) MPLJ 595].

36. In the case of MMTC (supra), the Supreme Court held that for

determining the real character of the impugned order, the

Court may look at the basic averments invoking the jurisdiction.

37. In Dr. Jaidev Siddha Vs. Jaiprakash Siddha (supra), the

High Court followed the said principle observing as under:

"17. From the aforesaid enunciation of law it is quite vivid and luminiscent that the pleadings in the writ petition, nature of the order passed by the learned Single Judge, character and the contour of the order, directions issued, nomenclature given, the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper technical manner that an order passed in a writ petition, if there is assail to the order emerging from the Inferior Tribunal or Subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the

Constitution of India. Phraseology used in exercise of original jurisdiction under Article 226 of the Constitution in Section 2 of the Act cannot be given a restricted and constricted meaning because an order passed in a writ petition can tantamount to an order under Article 226 or 227 of the Constitution of India and it would depend upon the real nature of the order passed by the learned Single Judge. To elaborate; whether the learned Single Judge has exercised his jurisdiction under Article 226 or under Article 227 or both would depend upon various aspects and many a facet as has been emphasized in the aforequoted decisions of the Apex Court. The pleadings, as has been indicated hereinabove, also assume immense significance. As has been held in the case of Surya Dev Rai (supra), a writ of certiorari can be issued under Article 226 of the Constitution against an order of a Tribunal or an order passed by the Subordinate Court. In quintessentially, it cannot be put in a straitjacket formula that any order of the learned Single Judge that deals with an order arising from an Inferior Tribunal or the Subordinate Court is an order under Article 227 of the Constitution of India and not an order under Article 226 of the Constitution. It would not be an overemphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co- exit, overlap or imbricate. In this context it is apt to note that there may be cases where the learned Single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of the case."

38. Keeping in mind the aforesaid considerations, let us scan

through the averments by C.S. Agarwarl in his writ petition.

The FIR in question lodged by the respondent No.3 alleges

cheating and misappropriation on the part of the appellants. In

the first para of the writ petition, it is alleged that the Economic

Offences Wing, Delhi has registered the FIR in a mala fide and

illegal manner when the Court of Metropolitan Magistrate,

Patiala House Courts, New Delhi was seized of the matter

wherein the Police officials itself had filed a status report/action

taken report concluding that the transaction between the

parties is of civil nature. The petitioner has also impugned

order dated 14.01.2010 passed by the Court of Shri Ravinder

Singh, M.M., in CC No.264/2009 alleging that the learned Judge

has adopted illegal procedure in violation of directions given by

this Court in the matter of Dr. Rajni Patriwala Vs. Dr. D.

Mohan & Anr. [2009 (3) JCC 1896]. Thus, in any case, a part

of the writ petition relates to quashing the order passed by the

learned Metropolitan Magistrate in the criminal proceedings.

Even other relief seeking quashing of the FIR is primarily on the

ground that it is a civil matter and therefore, Economic

Offences Wing should not have registered the FIR and

registration of such an FIR is colourable exercise of power. In

support of this plea, it was argued that essential ingredients of

the offence in respect of various provisions under which FIR

was registered were not made out. The perusal of the order of

the learned Single Judge would reflect that the entire matter

was argued from criminal law perspective with regard to

illegality of investigation entered upon by the Police on

registration of FIR. The learned Single Judge has gone into the

allegations made in the FIR on the basis of which it is prima

facie concluded that those allegations, if found correct, would

constitute the offence of cheating and misappropriation. We

are not commenting upon the correctness or otherwise of the

order passed by the learned Single Judge. What we emphasize

is that this would clearly show that the entire matter is looked

into from the criminal law perspective and while dealing with

the matter the learned Single Judge was exercising „criminal

jurisdiction‟.

39. We find force in the submission of Mr. Tulsi, learned Senior

Counsel for the respondent that the decision of the

Constitutional Bench of the Supreme Court in the case of

I.S.A.L. Rao (supra) cited by the learned Senior Counsel for

the petitioner does not support his contention in any way. All

that is held in the said judgment by the Supreme Court is that

the proceeding for the recovery of tax and interest was a civil

proceeding. It was further clarified in para 8 of the said

judgment that the character of proceeding does not depend on

the nature of Tribunal but on the nature of right violated.

Enforcement of civil right and seeking quashing of investigation

of criminal offences punishable under penal statute are totally

different.

40. We are, thus, of the considered opinion that the learned Single

Judge was exercising criminal jurisdiction while dealing with the

writ petition of C.S. Agarwal filed under Article 226 of the

Constitution. As a consequence, the LPAs are barred and not

maintainable. Accordingly, we dismiss these appeals with

costs.

(A.K. SIKRI) JUDGE

(SURESH KAIT) JUDGE

(M.L. MEHTA) JUDGE July 29, 2011 pmc