Gaje Singh Saini vs State Of Uttarakhand & Others
2014 Latest Caselaw 4338 Del

     IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

                   Special Appeal No. 495 of 2013
                               With
           Delay Condonation Application No. 13919 of 2013

Gaje Singh Saini.                                ...........      Appellant

                                     Versus

State of Uttarakhand & others.                   .............   Respondents

Mr. Arvind Kumar Sharma, Advocate for the appellant.
Mr. Manish Arora, Advocate for respondent Nos. 2 & 3.


                                JUDGMENT

Coram: Hon'ble K.M. Joseph, C.J.

Hon'ble V.K. Bist, J.

Dated: 10th September, 2014

V.K. BIST, J. (Oral) There is 58 days' delay in filing this Special Appeal. We have heard the learned counsel for the parties and also gone through the affidavit filed along with the Delay Condonation Application. We are satisfied with the reasons furnished in the affidavit filed in support of the Delay Condonation Application and, accordingly, we condone the delay. The Delay Condonation Application stands allowed.

2. Appellant has filed this Special Appeal challenging the judgment passed by the learned Single Judge in Criminal Miscellaneous Application No. 932 of 2013 under Section 482 of the Code of Criminal Procedure.

3. A preliminary objection has been raised by the counsel for respondent Nos. 2 & 3 that the present Special Appeal is not maintainable, as it is filed against the order passed by the learned Single Judge in a criminal matter. In this regard, he referred to Rule 5 of Chapter VIII of the Rules of the Court, 1952, which reads as follows:

"5. Special appeal. - An appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made by a Court subject to the superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of superintendence or in the exercise of criminal jurisdiction or in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award (a) of a tribunal, Court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution, or (b) of the Government or any Officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act of one Judge."

4. From a perusal of the aforesaid rule, it is clear that an appeal shall not lie from an order passed by a court in exercise of its revisional jurisdiction or in exercise of power of superintendence or in exercise of criminal jurisdiction. In the present case, appellant has filed the appeal against an order passed by the learned Single Judge in exercise of criminal jurisdiction.

5. Learned counsel for the appellant relied upon the judgment passed by this Court in Special Appeal No. 142 of 2013, wherein the special appeal was entertained by this Court against an order passed by the learned Single Judge in a habeas corpus matter. We have gone through the said judgment. We found that, in fact, while dealing with the said case in Special Appeal No. 142 of 2013, the Court did not consider the question as to whether a special appeal is maintainable against the order passed by the learned Single Judge in exercise of its criminal jurisdiction.

6. On the other hand, the learned counsel for respondent Nos. 2 & 3 placed reliance on the judgment passed by this Court in Special Appeal No. 297 of 2014 dated 12th August, 2014, wherein this Court has held that such an appeal is not maintainable.

7. Considering the submissions of the learned counsel for the parties and considering the provision contained in Rule 5 of Chapter VIII and also considering the judgment rendered by this Court in Special Appeal No. 297 of 2014 dated 12th August, 2014, we are of the view that the present Special Appeal is not maintainable. The same is, accordingly, dismissed.

                  (V.K. Bist, J.)                 (K.M. Joseph, C. J.)
                   10.09.2014                         10.09.2014
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