Madras High Court
S.Gugan vs The Commissioner Of Customs on 6 September, 2024
Author: R.Suresh Kumar
Bench: R.Suresh Kumar
W.A.No.1899 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 26.03.2024
Pronounced on : 06.09.2024
CORAM:
THE HON'BLE MR. JUSTICE R.SURESH KUMAR
AND
THE HON'BLE MR.JUSTICE K.KUMARESH BABU
W.A.No.1899 of 2019
and C.M.P.No.12935 of 2019
S.Gugan ... Appellant
Vs.
1. The Commissioner of Customs
Sea Import / Vigilance - CHI-VIII Commissionerate,
Customs House,
Rajaji Salai, Chennai - 600 001.
2. The Additional Superintendent of Police
Central Bureau of Investigation,
Shastri Bhavan, Haddows Road,
Nungambakkam, Chennai - 600 006. ... Respondents
Prayer : Writ Appeal filed under Clause 15 of Letters Patent Act,
against the order made in W.P.No.3208 of 2018, dated 26.04.2018.
For Appellant : Mr.K.Gandhikumar
For Respondents : Mr.AR.L.Sundaresan, ASG
to assist the Court
Mr.A.P.Srinivas
Senior standing counsel for R1
Mr.K.Srinivasan
Spl.P.P. (For CBI cases) for R2
JUDGMENT
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R.SURESH KUMAR, J
This Intra Court Appeal arise out of the order of the writ court, dated
26.04.2018 made in W.P.No.3208 of 2018.
2. The short facts which are required to be noticed for the disposal of
this writ appeal reads thus :
(i) That the appellant was working as an Examiner in the Customs
Department. Due to a alleged mis-declaration of goods where the goods
were fully fitted Air Conditioner, whereas it has been declared as part of the
Air Conditioner and imported to India through Chennai Port, there had been
a revenue loss to the exchequer of the Customs Department.
(ii) The appellant being the Examiner along with few other officials
who, according to the Department, had been instrumental for such a mis-
declaration to happen as they have not properly examined or evaluated
thereby it led to loss of exchequer. Therefore the Department decided to
launch a prosecution against those officials including the appellant.
(iii) Therefore the Department wanted to get a sanction order under
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Section 19(1)(c) of the Prevention of Corruption Act, 1988 from the
competent authority namely the Commissioner of Customs Import (Sea
Port).
(iv) Such a sanction order for prosecution had been issued by the
competent authority on 30.09.2013 which was under challenge in the writ
petition filed by the appellant who stood as the writ petitioner before the writ
court.
(v) The learned Judge heard the said writ petition and ultimately
concluded on merits that, the decision taken by the competent authority to
issue sanction for launching prosecution against the writ petitioner was
justified and therefore he was pleased to dismiss the said writ petition
through the impugned order.
(vi) Whether such a decision taken by the writ court is correct or not is
the issue raised in this Intra Court Appeal. However in view of the order that
is proposed to be passed in this appeal, we do not wish to go into the merits
of the plea raised by the appellant as against the order impugned passed by
the writ court, the reason would be explained hereunder.
3. At the initial stage of the hearing, the learned Senior standing
counsel appearing for the first respondent has raised a preliminary objection
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as to the maintainability of the writ appeal.
4. Since the learned Senior standing counsel appearing for the first
respondents has raised such an objection by citing certain decisions of this
Court as well as the Hon'ble Apex Court, we thought of requesting the
Additional Solicitor General to assist the Court on the issue as to whether
the writ appeal is maintainable or not and a legal position to that regard can
be placed before this Court for consideration and appropriate decision.
5. Accordingly, Mr.AR.L.Sundaresan, learned Additional Solicitor
General appeared and assisted the Court. We have also heard
Mr.K.Gandhikumar, learned counsel appearing for the appellant and
Mr.A.P.Srinivas, learned Senior standing counsel appearing for the
respondent Department and Mr.K.Srinivasan, learned Special Public
Prosecutor (For CBI Cases) appearing for the second respondent.
6. It is the contention of the respondents which was fortified by the
submissions made by the learned Additional Solicitor General that, the Intra
Court Appeal is not maintainable, for the reason that, the learned single
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Judge even though having exercised of his power under Article 226 of the
Constitution in deciding the writ petition, since it relates to a criminal
jurisdiction, the said order passed by the writ court even though under
Article 226 of the Constitution cannot be treated to be an appealable order
within the meaning of clause 15 of the Letters Patent.
7. In support of their contentions, the learned Additional Solicitor
General has relied upon the following decisions :
(i) Ram Kishan Fauji v. State of Haryana, (2017) 5 SCC 533
(ii) Jasbir Singh v. State of Punjab (2022) 13 SCC 462
(iii) C.Shivasankaran v. Foreign Regional Registration officer & Ors,
2020 SCC Online Mad 2656
(iv) Ajay Kumar Bishnoi v. Inspector of Police & Ors, W.A.No.2167
of 2022, dated 12.10.2022.
(v) D.Kumar v. Raichand Daga & Ors, W.A.SR.44351 of 2020, dated
03.08.2020.
8. The learned Additional Solicitor General heavily relied upon the
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decision of the Hon'ble Supreme Court in Ram Kishan Fauji reported in
(2017) 5 SCC 533 and made submissions stating that, the Hon'ble Supreme
Court has discussed the issue elaborately and has ultimately held that, the
two decisions made by the Gujarat and Delhi High Courts have correctly
laid down the law, however the view expressed by the Full Bench of the
High Court of Andhra Pradesh in the matter of Gangaram Kandaram v.
Sunder Chikha reported in 2000 SCC Online AP 119 is incorrect.
9. The learned Additional Solicitor General would further submit that,
after held so, the Hon'ble Supreme Court has declared in unequivocal terms
that, the Letters Patent Appeal was not maintainable before the Division
Bench, consequently the order passed therein is wholly unsustainable and
accordingly it was set aside.
10. The said decision of the Hon'ble Supreme Court where the law has
been held so in Ram Kishan Fauji's case has been followed in three Division
Bench Judgments of this Court, i.e., Ajay Kishan Bishnoi, D.Kumar and
C.Shivasankaran's cases cited supra.
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11. Therefore placing heavy reliance on these decisions, the learned
Additional Solicitor General would submit that, by Ram Kishan Fauji's case
the Supreme Court since has declared the law in unequivocal term and the
same is being followed subsequently in a number of decisions not only by
this Court but also by various High Courts, it has become a settled legal
position now that, as against the order passed by the single Judge of the
High Court exercising jurisdiction under Article 226 of the Constitution in
criminal matters, no Intra Court Appeal would lie under the Letters Patent.
12. Therefore the present appeal arise out of the order passed by the
writ court, of course under Article 226 of the Constitution in a criminal
matter, where the sanction order issued by the competent authority under the
Prevention of Corruption Act since was questioned, the ultimate conclusion
would be at the end of the prosecution if it is initiated pursuant to the said
sanction order either the writ petitioner / appellant would be convicted or be
acquitted. Therefore based on such an ultimate conclusion the litmus test to
identify whether a particular matter is a criminal matter and the order passed
therein is under criminal jurisdiction can very well be fit into the present
facts of the case and therefore the order passed by the learned Judge which is
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impugned herein is also an order under Article 226 in a criminal matter by
exercising the power under Article 226, therefore the Letters Patent Appeal
would not lie, the learned Additional Solicitor General has elaborated and
contended.
13. Per contra, Mr.K.Gandhikumar, learned counsel appearing for the
appellant has invited our attention to the Madras High Court Writ Rules
2021, in short, the Writ Rules, where Rule (17)(3) has been relied upon by
the learned counsel which reads thus :
"Writ Petitions (Crl.) shall be posted before the
single Judge hearing petitions under Section 482
Cr.P.C or as directed by the Chief Justice."
14. Extending his arguments by relying upon Rule 17(3) of Writ
Rules, the learned counsel would contend that, the writ petition criminal is a
separate nomenclature under Rule 17(3) and such kind of matters are posted
for hearing before the single Judge who heard the matter under Section 482
Cr.P.C or as directed by the Chief Justice. Therefore the learned counsel
would submit that, the present case where the impugned order was passed by
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the learned Judge who had not passed an order in a writ petition (criminal),
but he had passed such an order in a regular writ petition filed under Article
226 of the Constitution seeking for a writ of certiorari. Therefore the said
writ petition since cannot be categorised as writ petition (criminal) within
the meaning of Rule 17(3) of the Writ Rules, it cannot be construed that the
learned Judge in disposing the said writ petition had exercised only the
criminal jurisdiction under Article 226 of the Constitution. Therefore the
Intra Court Appeal would lie under clause 15 of the Letters Patent.
15. The learned counsel appearing for the appellant would also make
submissions that, this issue in fact had been considered by the Full Bench of
the Andhra pradesh High Court in the said Judgment in Gangaram's case
(cited supra).
16. Since the learned Judge while he was looking after the writ cases
filed under Article 226 of the Constitution has entertained the present writ
petition and has exercised his jurisdiction only under Article 226 of the
Constitution for issuance or refuse to issuance of prerogative writ. The five
types of prerogative writs, according to the learned counsel, are to be issued
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only under Article 226 of the Constitution. Therefore at no stretch of
imagination it can be stated that, merely because the order impugned before
the writ court was a sanction order issued by the competent authority for
launching the prosecution, it cannot be treated as a criminal matter and
therefore it cannot be stated that the learned Judge who dealt with the matter
had exercised the criminal jurisdiction and hence the Letters Patent Appeal
cannot be maintainable.
17. Contending further, the learned counsel appearing for the
appellant submits that, the power exercised by the competent authority in
issuing the sanction order is purely an administrative action and such an
administrative orders, if it is passed by any authority under a statute, cannot
be treated as an order passed by an authority exercising the investigating or
policing power within the meaning of the provisions of the Code of Criminal
Procedure. Therefore such an administrative action culminated in the
sanction order passed by the competent authority can never be treated as an
order arising out of a criminal jurisdiction or exercising power arising out of
a criminal law and therefore the objection raised on behalf of the
respondents with regard to the maintainability of the writ appeal is totally
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untenable and hence, the learned counsel would canvass that the Intra Court
Appeal can very well be entertained as maintainable and justice may be
rendered on the merits of the case.
18. We have given our anxious consideration to the rival submissions
made by the learned counsel appearing for both sides including the learned
Additional Solicitor General who appeared before this Court at our request
to assist the Court.
19. Clause 15 of the Letters Patent of the Madras High Court reads
thus :
“15. Appeal from the Courts of Original Jurisdiction to
the High Court in its appellate jurisdiction – And we do
further ordain that an appeal shall lie to the said High
Court of Judicature at Madras from the judgment (not
being a judgment passed in the exercise of appellate
jurisdiction in respect of a decree or order 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 sentence or order passed or
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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 to section 108 of the Government of India Act
made (one or after the 1st day of February, 1929), in the
exercise of appellate jurisdiction in respect of a decree
or order made in the exercise of appellate jurisdiction by
a Court subject to the superintendence of the said High
Court, where the Judge who passed the judgment
declares that the case is a fit one for appeal, but that the
right of appeal from other judgments of Judges of the
said High Court or of such Division Court shall be to
Us, Our Heirs of Successors in Our or Their Privy
Council as hereinafter provided.”
20. Under Clause 15 of the Letters Patent, what kind of appeals would
arise from Original Jurisdiction of the High Court to its appellate jurisdiction
has been enumerated. The language used in the Statute is that, we do further
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ordain that an appeal shall lie to the said High Court of Judicature at Madras
from the 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......
21. There are exceptions which has been provided in (at clause 15)
which it says that, a Judgment passed in exercise of Appellate Jurisdiction in
respect of a decree or order in the exercise of the appellate jurisdiction by a
Court subject to the superintendence of the said High Court, an order made
in the exercise of revisional jurisdiction and 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.
22. Among these exceptions, the last exception is in the exercise of
criminal jurisdiction, which means that if any order is passed in exercising
of criminal jurisdiction, as against the said order, no Intra Court Appeal
under clause 15 of Letters Patent would lie.
23. This legal position is very explicit on a plain reading of clause 15
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of the Letters Patent.
24. This position has been exhaustively discussed and a complete
answer has been given by the Hon'ble Supreme Court in Ram Kishan Fauji's
case.
25. Ram Kishan Fauji's case had arisen out of a Judgment of the
Punjab and Haryana High Court, where the appellant filed a writ petition
before the High Court seeking a writ of certiorari for quashing the order
passed by the second respondent therein, whereby it had recommended
registration of a case against the petitioner therein under the provisions of
the Prevention of Corruption Act, 1988.
26. Ultimately the learned single Judge though proceeded to deal with
the registration of the complaint on the recommendation of the Lok Ayuktha
had opined that, if the investigation is purported to be taken by lodging an
FIR consequent on the direction given by the order, it is now quashed it shall
also be quashed, that means the order was quashed by the leaned Judge. As
against the said order passed by the learned Judge, the State of Haryana filed
an Intra Court Appeal in L.P.A.No.1426 of 2015, where the single Judge
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order has been stayed by the Division Bench, which has subsequently been
made absolute. Questioning the sustainability of the order passed by the
Division Bench of the Punjab and Haryana High Court, the writ petitioner
filed an SLP, where the counsel 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. In this regard, on
his behalf reliance was placed on certain authorities to which the Hon'ble
Supreme Court had its deliberations in the said Judgment in Ram Kishan
Fauji (cited supra).
27. Before the High Court of Punjab and Haryana, the Intra Court
Appeal by way of LPA would lie under Clause 10 of the Letters Patent,
where also the similar language that has been used in clause 15 of the Letters
Patent of Madras High Court is available.
28. The following passages in the Judgment in Ram Kishan Fauji
reported in (2017) 5 SCC 533 of the Hon'ble Supreme Court can be usefully
pressed into service herein.
“18. On a plain reading of the aforesaid clause of the
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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.
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21. It is worthy to mention here that Clause 10 of the
Letters Patent establishing the Lahore High Court
(which is applicable to the Hon'ble Punjab and Haryana
High Court) is in pari materia with Clause 15 of the
Letters Patent of the Chartered High Courts. The four-
Judge Bench, in South Asia Industries (P) Ltd. v. S.B.
Sarup Singh [South Asia Industries (P) Ltd. v. S.B.
Sarup Singh, (1965) 2 SCR 756 : AIR 1965 SC 1442] ,
speaking through Subba Rao, J. (as his Lordship then
was) referred to Clauses 10 and 11 of the Letters Patent
and, in that context, ruled : (AIR p. 1445, para 5)
“5. …A plain reading of the said clause
indicates that except in the 3 cases excluded
an appeal lay against the judgment of a
Single Judge of the High Court to the High
Court in exercise of any other jurisdiction.
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As the clause then stood, it would appear
that an appeal lay against the judgment of a
Single Judge of the High Court made in
exercise of second appellate jurisdiction
without any limitation thereon. The effect of
the amendment made in 1928, so far as is
relevant to the present enquiry, is the
exclusion of the right of appeal from a
judgment passed by a Single Judge sitting in
second appeal unless the Judge who passed
the judgment grants a certificate that the
case is a fit one for appeal.”
(emphasis supplied)
The Court in the said case after referring to number of
authorities also observed : (AIR p. 1447, para 11)
“11. … A statute may give a right of appeal
from an order of a tribunal or a Court to the
High Court without any limitation thereon.
The appeal to the High Court will be
regulated by the practice and procedure
obtaining in the High Court. Under the rules
made by the High Court in exercise of the
powers conferred on it under Section 108 of
the Government of India Act, 1915, an
appeal under Section 39 of the Act will be
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heard by a Single Judge. Any judgment
made by the Single Judge in the said appeal
will, under Clause 10 of the Letters Patent,
be subject to an appeal to that Court. If the
order made by a Single Judge is a judgment
and if the appropriate legislature has,
expressely or by necessary implication, not
taken away the right of appeal, the
conclusion is inevitable that an appeal shall
lie from the judgment of a Single Judge
under Clause 10 of the Letters Patent to the
High Court. It follows that, if the Act had not
taken away the letters patent appeal, an
appeal shall certainly lie from the judgment
of the Single Judge of the High Court.”
(emphasis supplied)
22. From the aforesaid authority, two aspects are
absolutely clear. First, where an appeal is not excluded
against the judgment of a Single Judge of the High
Court, 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.
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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.
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33. In the ultimate analysis, the two-Judge Bench in
Umaji Keshao Meshram case [Umaji Keshao Meshram
v. Radhikabai, 1986 Supp SCC 401] held that the
petition filed by the appellant before the Nagpur Bench
of the Bombay High Court was admittedly under
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Article 227 of the Constitution and under the Rules of
the High Court, it was heard by a Single Judge and
under Clause 15 of the Letters Patent of that High
Court, an intra-court appeal against the decision of the
learned Single Judge was expressly barred.
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35. The Court in the said case [Ashok K. Jha v. Garden
Silk Mills Ltd., (2009) 10 SCC 584 : (2010) 1 SCC
(L&S) 78] accepted the decision rendered in Ramesh
Chandra Sankla [Ramesh Chandra Sankla v. Vikram
Cement, (2008) 14 SCC 58 : (2009) 1 SCC (L&S) 706]
and opined that a statement made by a learned Single
Judge that he has exercised power under Article 227
cannot take away the right of appeal against such
judgment if the power is otherwise found to have been
exercised under Article 226. The vital factor for
determination of the maintainability of the intra-court
appeal is the nature of jurisdiction invoked by the party
and the true nature of the order passed by the learned
Single Judge.
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38. In the ultimate eventuate, the three-Judge Bench
answered the reference as follows : (Radhey Shyam
case [Radhey Shyam v. Chhabi Nath, (2015) 5 SCC
423 : (2015) 3 SCC (Civ) 67] , SCC p. 449, para 29)
“29.1. Judicial orders of the civil court are
not amenable to writ jurisdiction under
Article 226 of the Constitution.
29.2. Jurisdiction under Article 227 is
distinct from jurisdiction under Article 226.
29.3. Contrary view in Surya Dev Rai [Surya
Dev Rai v. Ram Chander Rai, (2003) 6 SCC
675] is overruled.”
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40. As the controversy in Jogendrasinhji Vijaysinghji
case [Jogendrasinhji Vijaysinghji v. State of Gujarat,
(2015) 9 SCC 1 : (2015) 4 SCC (Civ) 275] related to
further two aspects, namely, whether the nomenclature
of the article is sufficient enough and further, whether a
tribunal is a necessary party to the litigation, the two-
Judge Bench proceeded to answer the same. In that
context, the Court referred to the authorities in Lokmat
Newspapers (P) Ltd. v.Shankarprasad [Lokmat
Newspapers (P) Ltd. v. Shankarprasad, (1999) 6 SCC
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275 : 1999 SCC (L&S) 1090] , Kishorilal [Kishorilal v.
District Land Development Bank, (2006) 7 SCC 496],
Ashok K. Jha [Ashok K. Jha v. Garden Silk Mills Ltd.,
(2009) 10 SCC 584 : (2010) 1 SCC (L&S) 78] and
Ramesh Chandra Sankla [Ramesh Chandra
Sanklav.Vikram Cement, (2008) 14 SCC 58 : (2009) 1
SCC (L&S) 706] and opined that maintainability of a
letters patent appeal would depend upon the pleadings
in the writ petition, the nature and character of the order
passed by the learned Single Judge, the type of
directions issued regard being had to the jurisdictional
perspectives in the constitutional context. It further
observed that barring the civil court, from which order
as held by the three-Judge Bench in Radhey Shyam
[Radhey Shyam v. Chhabi Nath, (2015) 5 SCC 423 :
(2015) 3 SCC (Civ) 67] that a writ petition can lie only
under Article 227 of the Constitution, orders from
tribunals cannot always be regarded for all purposes to
be under Article 227 of the Constitution. Whether the
learned Single Judge has exercised the jurisdiction
under Article 226 or under Article 227 or both, would
depend upon various aspects. There can be orders
passed by the learned Single Judge which can be
construed as an order under both the articles in a
composite manner, for they can co-exist, coincide and
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imbricate. It was reiterated that it would depend upon
the nature, contour and character of the order and it will
be the obligation of the Division Bench hearing the
letters patent appeal to discern and decide whether the
order has been passed by the learned Single Judge in
exercise of jurisdiction under Article 226 or 227 of the
Constitution or both. The two-Judge Bench further
clarified that the Division Bench would also be required
to scrutinise whether the facts of the case justify the
assertions made in the petition to invoke the jurisdiction
under both the articles and the relief prayed on that
foundation. The delineation with regard to necessary
party not being relevant in the present case, the said
aspect need not be adverted to.”
29. At para 42, the Hon'ble Supreme Court has culled out the
conclusions which are deducible from various Judgments which had been
referred and considered.
"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
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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.
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45. The aforesaid argument suffers from a fundamental
fallacy. It is because the submission is founded on the
plinth of whether the writ jurisdiction has been
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exercised under Article 226 or 227 of the Constitution.
It does not take note of the nature of jurisdiction and
the relief sought. If the proceeding, nature and relief
sought pertain to anything connected with criminal
jurisdiction, intra-court appeal would not lie as the
same is not provided in Clause 10 of the Letters Patent.
Needless to emphasise, if an appeal in certain
jurisdictions is not provided for, it cannot be conceived
of. Therefore, the reliance placed upon the larger Bench
authority in Hari Vishnu Kamath [Hari Vishnu Kamath
v. Ahmad Ishaque, AIR 1955 SC 233] does not render
any assistance to the argument advanced by the learned
counsel for the respondent State.
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 [Gangaram
Kandaram v. Sunder Chikha Amin, 2000 SCC OnLine
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AP 119 : (2000) 2 An LT 448] . 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 Penal Code
against the writ petitioner in FIRs Nos. 14, 137 and 77
of 1997 as illegal and to quash the same. The learned
Single Judge had allowed the writ petition by order
dated 6-8-1997 and quashed the FIRs. The order passed
by the learned Single Judge was assailed by the seventh
respondent in intra-court appeal. The Full Bench posed
the following question : (Gangaram case [Gangaram
Kandaram v. Sunder Chikha Amin, 2000 SCC OnLine
AP 119 : (2000) 2 An LT 448] , SCC OnLine AP para
2)
“2. … ‘… (ii) 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.’ ”
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47. Dwelling upon the said issue, the Court in
Gangaram Kandaram case [Gangaram Kandaram v.
Sunder Chikha Amin, 2000 SCC OnLine AP 119 :
(2000) 2 An LT 448] referred to the authority in State
of Haryana v. Bhajan Lal [State of Haryana v. Bhajan
Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426 :
AIR 1992 SC 604] wherein the Court had categorised
certain aspects of the case as illustrations wherein
power under Article 226 or the inherent power under
Section 482 CrPC can be exercised. Be it noted, the
Court gave a note of caution to the effect that the power
of quashing a criminal proceeding should be exercised
very sparingly and with circumspection and that too in
the rarest of rare cases and further, the Court will not be
justified in embarking upon an enquiry as to the
reliability or genuineness or otherwise of the
allegations made in the FIR or the complaint and that
the extraordinary or inherent powers do not confer an
arbitrary jurisdiction on the Court to act according to its
whim or caprice. The Full Bench, after referring to the
same, adverted to the authorities in Rashmi Kumar v.
Mahesh Kumar Bhada [Rashmi Kumar v. Mahesh
Kumar Bhada, (1997) 2 SCC 397 : 1997 SCC (Cri)
415] and Rajesh Bajaj v. State (NCT of Delhi) [Rajesh
Bajaj v. State (NCT of Delhi), (1999) 3 SCC 259 : 1999
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SCC (Cri) 401], deliberated upon the maintainability of
the appeal and, in that regard, stated thus : (Gangaram
Kandaram case [Gangaram Kandaram v. Sunder
Chikha Amin, 2000 SCC OnLine AP 119 : (2000) 2 An
LT 448] , SCC OnLine AP para 14)
“14. 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
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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 the Criminal Procedure
Code 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.”
(emphasis supplied)
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48. According to Mr Visen, the learned counsel for the
respondent State, the view expressed by the Andhra
Pradesh High Court in Gangaram Kandaram case
[Gangaram Kandaram v. Sunder Chikha Amin, 2000
SCC OnLine AP 119 : (2000) 2 An LT 448] is
absolutely defensible in law and, therefore, the appeal
being maintainable, the order impugned in the present
appeal does not warrant any interference.
...
...
...
51. It is worthy to note that a series of decisions were
cited on behalf of the appellants therein including a Full
Bench judgment of the Gujarat High Court in Patel
Kashiram Lavjibhai v. Narottamdas Bechardas [Patel
Kashiram Lavjibhai v. Narottamdas Bechardas, 1978
SCC OnLine Guj 21 : (1978) 19 Guj LR 1047] wherein
the Full Bench considered Articles 226 and 227 of the
Constitution in the light of various decisions of this
Court and deduced certain principles. The Division
Bench in Sanjeev Rajendrabhai Bhatt case [Sanjeev
Rajendrabhai Bhatt v. State of Gujarat, (2000) 1 Guj
LR 206] distinguished the said decision on the ground
that the Full Bench did not lay down as a proposition of
law that LPAs would be maintainable even if an order
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was passed by the learned Single Judge in exercise of
criminal jurisdiction, for the case before the Full Bench
related to right in land and the question was whether the
power exercised by the learned Single Judge was under
Article 226 or under Article 227 of the Constitution.
Eventually, the Court referred to Ishwarlal
Bhagwandas [CIT v. Ishwarlal Bhagwandas, (1966) 1
SCR 190 : AIR 1965 SC 1818] and opined thus :
(Sanjeev case [Sanjeev Rajendrabhai Bhatt v. State of
Gujarat, (2000) 1 Guj LR 206] , Guj LR pp. 232-33,
paras 80-83)
“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 [CIT v.
Ishwarlal Bhagwandas, (1966) 1 SCR 190 :
AIR 1965 SC 1818] .
81. From the totality of facts and
circumstances, we have no hesitation in
holding that 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
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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.”
Being of this view, the Division Bench ruled
that as Clause 15 of the Letters Patent
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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, accordingly, dismissed
the same.
52. From the aforesaid analysis, it is demonstrable that
the Gujarat High Court has opined that relying on the
authority of this Court in Ishwarlal Bhagwandas [CIT
v. Ishwarlal Bhagwandas, (1966) 1 SCR 190 : AIR
1965 SC 1818] , the issue whether the proceedings are
civil or not would depend upon the nature of the right
violated and the appropriate relief which might be
claimed and not upon the nature of the tribunal which
has been invested to grant relief. The Division Bench
further opined that even if cognizance is not taken in
respect of a criminal case, it would not take out the case
from the purview of criminal jurisdiction. Thus, it has
been held by the Division Bench that when there is a
proceeding under Article 226 of the Constitution
arising from an order made by a Court in exercise of
power under the Code of Criminal Procedure, it would
be a criminal proceeding within the meaning of Letters
Patent.
...
...
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...
54. After so stating, the Full Bench referred to the
Constitution Bench decision in Ishwarlal Bhagwandas
[CIT v. Ishwarlal Bhagwandas, (1966) 1 SCR 190 :
AIR 1965 SC 1818] and distinguished the Full Bench
decision of the Andhra High Court in Gangaram
Kandaram [Gangaram Kandaram v. Sunder Chikha
Amin, 2000 SCC OnLine AP 119 : (2000) 2 An LT
448] and noted the decision of the Division Bench of
the Gujarat High Court in Sanjeev Rajendrabhai Bhatt
[Sanjeev Rajendrabhai Bhatt v. State of Gujarat,
(2000) 1 Guj LR 206] and came to hold as follows :
(C.S. Agarwal case [C.S. Agarwal v. State, 2011 SCC
OnLine Del 3136 : (2011) 125 DRJ 241] , SCC OnLine
Del paras 32-33)
“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
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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”.”
55. Being of this view, the Full Bench in C.S. Agarwal
case [C.S. Agarwal v. State, 2011 SCC OnLine Del
3136 : (2011) 125 DRJ 241] opined that the letters
patent appeal was not maintainable. In this regard, the
learned counsel for the appellant has also drawn our
attention to the Division Bench judgment of the Delhi
High Court in Vipul Gupta v. State [Vipul Gupta v.
State, 2014 SCC OnLine Del 434 : (2014) 208 DLT
468] wherein the Division Bench, placing reliance on
the Full Bench decision [C.S. Agarwal v. State, 2011
SCC OnLine Del 3136 : (2011) 125 DRJ 241] , has
expressed the view that though the writ petitions were
not filed for quashing of the FIR as in the case of the
Full Bench decision, yet the learned Single Judge was
exercising criminal jurisdiction, for the Lieutenant
Governor of Delhi had agreed with the proposal not to
press the application for withdrawal of the criminal
case under Section 321 CrPC and allowed the trial
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court to proceed on merits. In this factual backdrop, the
Division Bench opined : (Vipul Gupta case [Vipul
Gupta v. State, 2014 SCC OnLine Del 434 : (2014) 208
DLT 468] , SCC OnLine Del pp. 290-91, para 14)
“14. … Even though the challenge in the
writ petitions was to a decision of Hon'ble
the Lieutenant Governor but the said
decision was relating to the prosecution
already underway of the appellants and the
direct effect of the dismissal of the writ
petitions is of continuation of the
prosecution which may result in imposition
of sentences such as death, imprisonment,
fine or forfeiture of property, of the
appellants. We are thus of the view that this
Court while dealing with the writ petitions
was exercising its criminal jurisdiction. It
cannot be also lost sight of that the writ
petitions were intended to avoid the
consequences of criminal proceedings
initiated under the Code of Criminal
Procedure and concerned with rights in
criminal law domain. We have thus no doubt
that the learned Single Judge, in dealing with
the writ petitions was exercising “criminal
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jurisdiction” and these letters patent appeals
are not maintainable.”
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 the 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 [CIT v. Ishwarlal Bhagwandas,
(1966) 1 SCR 190 : AIR 1965 SC 1818] , 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
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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.
57. In this regard, an example can be cited. In the State
of Uttar Pradesh, Section 438 CrPC has been deleted by
the State amendment and the said deletion has been
treated to be constitutionally valid by this Court in
Kartar Singh v. State of Punjab [Kartar Singh v. State
of Punjab, (1994) 3 SCC 569 : 1994 SCC (Cri) 899] .
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However, that has not curtailed the extraordinary power
of the High Court to entertain a plea of anticipatory bail
as has been held in Lal Kamlendra Pratap Singh v.
State of U.P. [Lal Kamlendra Pratap Singh v. State of
U.P., (2009) 4 SCC 437 : (2009) 2 SCC (Cri) 330] and
Hema Mishra v. State of U.P. [Hema Mishra v. State of
U.P., (2014) 4 SCC 453 : (2014) 2 SCC (Cri) 363] But
that does not mean that an order passed by the Single
Judge in exercise of Article 226 of the Constitution
relating to criminal jurisdiction, can be made the
subject-matter of intra-court appeal. It is not provided
for and it would be legally inappropriate to think so."
30. Ultimately the Hon'ble Supreme Court in para 58 has held that, the
High Courts of Gujarat and Delhi have correctly laid down the law and the
view expressed by the High Court of Andhra Pradesh is incorrect.
31. Therefore the Full Bench Judgment of the High Court of Andhra
Pradesh in Gangaram's case reported in 2000 SCC Online AP 119 was held
to be a incorrect decision. Therefore no reliance can be placed on the said
Full Bench Judgment of the High Court by the appellant.
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32. The ultimate conclusion reached by the Hon'ble Supreme Court in
the said Ram Kishan Fuji's case was that, the Letters Patent Appeal was not
maintainable before the Division Bench as the case in hand before the
Supreme Court, where the writ petition was filed under Article 226 before
the High Court for quashing of the recommendation of the Lokayukta. The
said recommendation would have led to launching of criminal prosecution
and as a factual matrix reveals FIR was registered and criminal investigation
was initiated. Therefore it was the test adopted by the Hon'ble Supreme
Court that, what is the ultimatum that would be reached in any criminal
proceedings which is set in motion shall be a criteria to find out as to
whether a particular proceedings amount to a criminal proceedings for the
purpose of demarcating the same as to the issue relates to the criminal
jurisdiction where if any order is passed by the writ court under Article 226
even then, Intra Court Appeal under clause 15 of the Letters Patent would
not lie.
33. Therefore the Ram Kishan Fauji's case has given a complete
quietus to the issue. The said decision has been followed by at least three
Division Bench decisions of this Court. The first one is Ajay Kumar
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Bishnoi's case (cited supra), where the first Division Bench of this Court has
held as follows:
“7. At the outset, we are unable to find any merit for
approaching this Court by the writ petitioner/appellant.
The reasons being that firstly, the very same issue has
already been elaborately considered by a Three Judge
Bench of the Hon'ble Apex Court in the case of Ram
Kishan Fauji vs. State of Haryana and others in Civil
Appeal No.4288/2017 wherein while dealing with a
similar and identical issue, the Apex Court has held
that an order passed by the learned Single Judge in
exercise of the power conferred under Article 226 of
the Constitution of India relating to criminal
jurisdiction cannot be made as the subject matter of
intra court appeal because it is not provided for and it
would be legally inappropriate to think so. The relevant
portion is given as under :
''61. ...But that does not mean that an order
passed by the Single Judge in exercise of
Article 226 of the Constitution relating to
criminal jurisdiction, can be made the
subject matter of intra-court appeal. It is not
provided for and it would be legally
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inappropriate to think so.''
8. Secondly, when an identical issue came up for
consideration before this Court, a Division Bench of
this Court in W.A.Sr.No.1941/2018 (S.768 K.N.Pudur
Primary Agricultural Co-operative Credit Society
Limited rep. by its President, K.Morur, Kadaiyampatti
Taluk, Salem District vs. G.Balakrishnan and 3 others)
in paragraph 13 has held thus:
''13. In view of the above observations and
discussion so made, de-hors the query raised
by the Registry with regard to the delay in
filing the appeal and the appellant-Society
not being impleaded as a party to the writ
proceedings and that in any event, there is a
delay in preferring the writ appeal, and that
the leave to file appeal is also sought for, we
are of the view that the Writ Appeal is not
maintainable against the order passed under
Criminal Jurisdiction by the learned single
Judge under Article 226 of the Constitution
of India. Accordingly, the Registry is
directed to return the original papers, if any,
to the learned counsel for the appellant, after
substituting the same by way of photocopy,
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so as to enable the Registry to keep the same
for record purpose, within 15 days from the
date when the order copy is made ready.''
9. Thirdly, in a recent judgment of our High Court in
the case of Abirami vs. The Superintendent of Police,
District Police Officer, Villupuram District and 5
others in W.A.Sr.No.92091/2021 dated 15.12.2021,
repelling the similar contentions and the arguments
advanced by the learned Counsel for the appellant
therein, this Court has held as follows: ''8. In the Writ
Petition against which the Writ Appeal had been filed,
the learned Judge was dealing with the subject as per
roster, Writs (Criminal). Therefore, the arguments of
the learned counsel for the appellant herein to number
the Writ Appeal cannot at all be accepted, as it is
against the principles of Clause 15 of Letters Patent
Act and against the reported decision of Division
Bench Rulings of this Court/High Court. Therefore, the
Writ Appeal sought to be taken on file and urged that it
is maintainable by the learned counsel is rejected.''
Therefore, in view of the above settled legal position,
when once a writ petition under Article 226 of the
Constitution of India is filed to quash an FIR or to pass
an order of Writ of Declaration to declare the FIR as
null and void and non-est and invalid in the eye of law,
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under the criminal jurisdiction as held by the Hon'ble
Apex Court in the case of Ram Kishan Fauji vs. State
of Haryana and others in Civil Appeal No.4288/2017,
intra court appeal is not legally permissible.”
34. The second Division Bench Judgment is in D.Kumar's case, where
also the First Bench of this Court by order, dated 03.08.2020, following the
Ram Kishan Fauji's case and so many other decisions has ultimately held
that, the writ appeal is not maintainable.
35. The third decision is C.Shivasankaran's case reported in 2020 SCC
Online Mad 2656, where also the First Division Bench having considered
the Ram Kishan Fauji's case has held as follows :
“16. We have carefully perused the judgment and we
find that the Apex Court came to the conclusion that
the judgments of the Gujarat and Delhi High Court
have correctly laid down the law on the subject. Taking
a clue from the said observations, we find that the Look
Out Circular that came to be the subject matter of
challenge before the learned Singe Judge did arise out
of the various criminal proceedings that were pending
against the appellant. The prayer, therefore, in the writ
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petition was clearly for a declaration that the Look Out
Circular in the purported exercise of powers under
Section 10B of the Passport Act, 1967 is arbitrary and
an abuse of authority, vitiated by mala fides, and hence,
should be declared to be without jurisdiction. The
sequence of facts, and the consequence towards which
the writ petition is aimed at, clearly relate to criminal
proceedings that have led to the issuance of the
circular. This may involve the guarantee of liberty to a
person under Article 21 of the Constitution, but the
genesis of the action is connected with the criminal
prosecutions pending against the appellant, the
umbilical cord whereof has not yet snapped. The
contention that it only involves civil rights of the
appellant is, therefore, not correct because the relief
revolves around consequences arising or likely to arise
as a result of criminal prosecution.
17. In our opinion, the issuance of a Look Out Circular
is an exercise of authority under the Office
Memorandum dated 27.10.2010 and such a circular can
be issued in larger public interest, as already held by
the learned Single Judge after taking into account the
amendment in the said memorandum. The appellant's
claim of immunity under the foreign passport,
therefore, may not arise. His movement inside this
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country being put under surveillance for the purpose of
his participation in the criminal prosecutions pending
against him appears to be justified and, hence, the Look
Out Circular is a consequence of the aforesaid
antecedents of the involvement of the appellant in
criminal cases. This being the position, the writ petition
was instituted and was rightly placed before the learned
Single Judge who was having the roster of dealing with
writ petitions arising out of criminal matters. The letter
and intent, as well as the crux of the background in
which the writ petition was filed clearly relates to the
criminal proceedings pending against the appellant and,
therefore, the nature of the jurisdiction exercised by the
learned Single Judge would be a writ in the criminal
jurisdiction, hence a Letters Patent Appeal under
Clause 15 of the Letters Patent of Madras High Court
would not be maintainable.
18. The appeal is, accordingly, rejected as being not
maintainable.”
36. It is further to be noted that, in the subsequent two recent
decisions of the year 2023, Division Benches of the High Court of
Telengana and High Court of Andhra Pradesh having considered various
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decisions including the decision of Ram Kishan Fauji, has held that, Intra
Court Appeal would not be maintainable as against the order passed in a
criminal proceedings. The following paragraph of the Division Bench of the
Telengana High Court can be usefully referred hereunder :
“38.5. Thus, Supreme Court is clear in its enunciation
that 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 which is relevant.
After holding that High Courts of Gujarat and Delhi
have correctly laid down the law and the view
expressed by the Full Bench of the Andhra Pradesh
High Court is incorrect, Supreme Court in the facts of
that case has held that learned single Judge in exercise
of jurisdiction under Article 226 of the Constitution of
India had passed an order in a criminal proceeding;
what matters is the nature of the proceeding and that is
the litmus test.”
37. Similar view has been taken by the Division Bench of the Andhra
Pradesh High Court in Union of India represented by Ministry of Defence
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and three others v. Lexus Technologies Pvt., Ltd., and another, where also a
similar view has been expressed by the First Division Bench of the Andhra
Pradesh High Court. The relevant portion of the order reads thus :
“10. In the case of Ram Kishan Fauji (supra), the Apex
Court had not accepted the view expressed by a full
Bench of the Andhra Pradesh High Court, wherein it
held that, when the power was exercised under Article
226 of the Constitution for quashing of a criminal
proceeding, there was no exercise of criminal
jurisdiction. A distinction was sought to be made
between proceedings for quashing of the FIR under
Section 482 of the Criminal Procedure Code and the
powers exercisable by the High Court under Article
226 of the Constitution for quashing of criminal
proceedings. The Apex Court, however, held the view
so expressed by the full Bench of the composite High
Court of Andhra Pradesh as incorrect. It was held:
"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,
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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 Cr.P.C and, in that context, has
opined that from such an order, no appeal
would lie. On the contrary, the High Courts
of Gujarat and Delhi, on the basis of the law
laid down by this Court in Ishwarlal
Bhagwandas, have laid emphasis on the
seed of initiation of criminal proceeding, the
consequence of a criminal proceeding and
also the nature of relief sought before the
Single Judge under Article 226 of the
Constitution. The conception of 'criminal
jurisdiction'€as used in Clause 10 of the
Letters Patent is not to be construed in the
narrow sense. It encompasses in its gamut
the inception and the consequence. It is the
field in respect of which the jurisdiction is
exercised, is relevant. The contention that
solely because a writ petition is filed to
quash an investigation.
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It would have room for intra-court appeal
and if a petition is filed under inherent
jurisdiction under Section 482 Cr.P.C., 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 Cr.P.C.
58. In view of the aforesaid premised
reasons, we hold that the High Courts of
Gujarat and Delhi have correctly laid down
the law and the view expressed by the Full
Bench of the High Court of Andhra Pradesh
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is incorrect."
11. Be that as it may, following the ratio of the
judgment in Ram Kishan Fauji (supra), we hold that
the present writ appeals are not maintainable and are
accordingly dismissed. No costs.”
38. Having gone through the above decisions, especially the law laid
down by the Hon'ble Supreme Court in Ram Kishan Fauji's case, we have no
hesitation to hold that, the order which was impugned before the writ court
is the order of sanction passed by the competent authority under section
19(1)(c) of the Prevention of Corruption Act, 1988. By virtue of the said
sanction order if prosecution is launched, it may lead to its logical
conclusion, where the writ petitioner / appellant either may be punished or
may be acquitted. Therefore it is a clear case of criminal proceedings, that
too arise out of a punitive law, namely the Prevention of Corruption Act,
1988. Hence at no stretch of imagination, it can be stated that, the order
impugned before the writ court dated 30.09.2013 is an Administrative order.
39. The said order dated 30.09.2013 being the sanction order under
section 19(1)(c) of the Prevention of Corruption Act is a proceedings under
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the penal law, therefore it can only be construed as a criminal proceedings.
In this context, if the test that has been enunciated by the decision of the
Hon'ble Supreme Court in Ram Kishan Fauji is applied to the facts of the
case, the ultimate conclusion would be in the said proceedings, which has
been set in motion by the sanction order, would be the end of the criminal
proceedings by way of conviction or acquittal.
40. If the sanction order is set aside on merits by the writ court
exercising its power under Article 226 of the Constitution, the criminal
proceedings has come to an end abruptly at the initial stage itself, that would
amounts to quashing of an FIR or quashing of a complaint.
41. Therefore such kind of proceedings can never be treated as a civil
proceedings or an administrative action, instead, it can only be considered as
a criminal proceedings. If a litigant comes before this Court to set aside or
quash the criminal proceedings like the sanction order as has been made in
the present case, such a proceedings can very well be construed only as a
criminal proceedings even though it is dealt with under Article 226 of the
Constitution.
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42. Therefore such kind of proceedings if it is concluded either by
allowing the writ petition or dismissing the writ petition as has been done in
the present case through the impugned order, such a proceedings is nothing
but a conclusion of a criminal proceedings ofcourse by exercising power
under Article 226 of the Constitution. Therefore the exemption that has been
provided under clause 15 of the Letters Patent to state that, any proceedings
in the exercise of criminal jurisdiction is also one of the exception where
there would be no Intra Court Appeal under clause 15 of the Letters Patent.
43. If that being so, it is amply clear that, the order passed by the
learned Judge which is impugned herein in exercising his power under
Article 226 of the Constitution in the present facts and circumstances of the
case is certainly a criminal proceedings exercising the criminal jurisdiction
and therefore as against the said impugned order, no Intra Court Appeal
under clause 15 of the Letters Patent would lie.
44. The arguments advanced by the learned counsel appearing for the
appellant that, under Rule 17(3) of the Writ Rules 2021 if the writ petition is
categorised as a criminal writ petition and entertained by a Judge who
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exercise the jurisdiction under Section 482 of the Criminal Procedure Code,
then only such kind of writ petition can be treated as a criminal proceedings
against which no Intra Court Appeal under clause 15 of the Letters Patent
would lie and in all other cases such Intra Court Appeal would lie, therefore
in this case also since it has not been categorised as writ petition criminal,
there has been no bar in preferring the writ appeal by way of Letters Patent
Appeal under clause 15 is justifiable is completely under the misconception
of the facts as well as law.
45. The reason being that, it is for the convenient sake, the roster is
fixed for a Judge to decide certain category of cases. Based on the roster
alone, the nature of the lis cannot be conclusively decided. That is the reason
why a very exhaustive discussion has been made by the Hon'ble Supreme
Court in Ram Kish Fauji's case as to how it should be evaluated as to a
particular proceedings is a criminal proceedings or civil proceedings for the
purpose of entertaining an Intra Court Appeal by way of Letters Patent
Appeal under clause 15 of Letters Patent and in the particular case under
clause 10 of the Letters Patent before the Punjab and Haryana High Court.
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46. Pari materia clause 15 of the Letters Patent of the Madras High
Court is having the same provision as that of clause 10 of the Letters Patent
applicable to Punjab and Haryana High Court, therefore the exemption given
by having the word in clause 10 of the Letters Patent that in the exercise of
criminal jurisdiction such kind of matters cannot be appealed by way of LPA
is a law that would be applicable for this Court also as clause 15 of Letters
Patent For High Court of Madras is also having the similar provision.
47. Therefore quoting Rule 17(3) of the Writ Rules 2021 of this Court
would no way helpful to the learned counsel appearing for the appellant to
canvass the point that based on the Writ Rules 2021 alone categorisation can
be made.
48. Therefore based on the well settled principles of law which has
been fortified by many number of decisions, where at least three Division
Benches of this Court have taken a consistent view, ofcourse by following
the Hon'ble Supreme Court decision in Ram Kishan Fauji and there has been
the latest decision of two Division Benches, one from the High Court of
Andhra Pradesh and another from High Court of Telengana, such a settled
legal position cannot be diluted. Therefore the submissions made by the
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learned counsel appearing for the appellant are to be rejected, accordingly
are rejected and the submissions made by the learned Additional Solicitor
General and the learned Senior standing counsel appearing for the first
respondent is to be accepted.
49. Resultantly, the instant Writ Appeal arise out of the order of the
writ court, dated 26.04.2018 made in W.P.No.3208 of 2018 is not
maintainable. Accordingly it is liable to be dismissed, hence it is dismissed
as not maintainable. However, there is no order as to costs. Consequently,
connected miscellaneous petition is closed.
The assistance rendered by Mr.AR.L.Sundaresan, the learned
Additional Solicitor General is appreciable.
(R.S.K., J.) (K.B., J.)
06.09.2024
Index : Yes
Speaking order
Neutral Citation : Yes
tsvn
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To
1. The Commissioner of Customs
Sea Import / Vigilance - CHI-VIII Commissionerate,
Customs House,
Rajaji Salai, Chennai - 600 001.
2. The Additional Superintendent of Police
Central Bureau of Investigation,
Shastri Bhavan, Haddows Road,
Nungambakkam, Chennai - 600 006.
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R.SURESH KUMAR, J.
and
K.KUMARESH BABU, J.
tsvn
Judgment
in
06.09.2024
https://www.mhc.tn.gov.in/judis
