Telangana High Court
The State Of Telangana And 5 Others vs Tushar Vellappally And 7 Others on 6 February, 2023
Bench: Ujjal Bhuyan, N.Tukaramji
THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
AND
THE HON'BLE SRI JUSTICE N.TUKARAMJI
+ WRIT APPEAL Nos.36, 37, 41, 42, 43 and 44 OF 2023
% Date:06.02.2023
# The State of Telangana,
Rep. By its Principal Secretary, Home Department, Secretariat,
Hyderabad, and others.
... Appellants
v.
$ Tushar Vellapally and others.
... Respondents
! Counsel for the appellants in W.A.Nos.36, 37, 43 and 44 of 2023:
Mr. Dushyant Dave, learned Senior Counsel
appearing for Mr. B.S.Prasad, learned
Advocate General
! Counsel for the appellant in W.A.Nos.41 and 42; counsel for respondent
No.3 in W.A.Nos.36 of 2023; counsel for respondent No.6 in W.A.Nos.37 of
2023; counsel for respondent No.4 in W.A.No.43 of 2023; and counsel for
respondent No.4 in W.A.No.44 of 2023 :
Mr. Gandra Mohan Rao,
learned Senior Counsel appearing for
Mr. A.Prabhakar Rao
! Counsel for respondents No.1, 2 and 3 in W.A.No.36 of 2023:
Mr. D.V.Sitharam Murthy, learned Senior Counsel
for Mr. M.V.V.Baswa Rao
! Counsel for respondents No.1, 2 and 3 in W.A.No.42 of 2023:
Mr. L.Ravichander, learned Senior Counsel
for Mr. M.V.V.Baswa Rao
! Counsel for respondent No.1 in W.A.No.44 of 2023:
Mr. J.Prabhakar and Mr. C.Damodar Reddy,
learned Senior Counsel for
Mr. Balasubrahmanyam Kumarsu
2
! Counsel for respondent No.1 in W.A.Nos.36 and 41 of 2023:
Mr. S.D.Sanjay Tiwari,
learned Senior Counsel for Ms. Bandaru Hima Varshini
! Counsel for respondent No.1 in W.A.No.43 of 2023:
Mr. Udaya Holla,
learned Senior Counsel for Mr. V.Ram Mohan Reddy
! Counsel for Union of India: Mr. Gadi Praveen Kumar,
learned Deputy Solicitor General of India
! Counsel for Central Bureau of Investigation : Mr. N.Nagendran
< GIST:
HEAD NOTE:
? CASES REFERRED:
1. (2014) 8 SCC 273
2. (2018) 10 SCC 753
3. (1978) 1 SCC 405
4. (2007) 1 SCC 1
5. (1974) 4 SCC 3
6. AIR 1955 SC 196
7. (2003) 6 SCC 195
8. (2017) 5 SCC 533
9. 2000 (2) APLJ 1 (HC) : 2000 SCC OnLine AP 119
10. (2000) 41 (1) GLR 206
11. 2011 SCC OnLine Del 3136
12. (1924) 1 KB 256
13. (2011) 8 SCC 380
14. (1969) 1 SCC 585
15. 1986 (Supp) SCC 401
16. 1992 Supp (1) SCC 335
17. (1993) 4 SCC 441
18. (2010) 12 SCC 254
19. (2018) 17 SCC 627
20. (2016) 3 SCC 135
21. (1985) 1 SCC 317
22. (2020) 14 SCC 12
23. 2022 SCC OnLine SC 1541
24. (1995) 2 SCC 570
25. (2020) 13 SCC 56
26. (1987) 1 SCC 288
27. (2014) 2 SCC 1
28. 2020 SCC OnLine Cal 755
29. AIR 1965 SC 1818
30. (1978) 19 GLR 1047 (FB)
31. 2018 SCC OnLine P&H 828
32. MANU/TN/6728/2021
3
THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
AND
THE HON'BLE SRI JUSTICE N.TUKARAMJI
WRIT APPEAL Nos.36, 37, 41, 42, 43 and 44 OF 2023
COMMON JUDGMENT: (Per the Hon'ble the Chief Justice Ujjal Bhuyan)
This judgment and order will dispose of writ appeal
Nos.36, 37, 41, 42, 43 and 44 of 2023.
2. With the consent of learned counsel for the parties,
all the writ appeals have been taken up for final hearing at
the admission stage itself.
3. All the writ appeals arise out of the common
judgment and order dated 26.12.2022 of the learned Single
Judge disposing of writ petition Nos.39767, 40733, 42228,
43144 and 43339 of 2022.
4. In the course of hearing, Mr. Dushyant Dave, learned
Senior Counsel for the appellants argued writ appeal No.37
of 2023 arising out of writ petition No.40733 of 2022 as the
lead appeal.
5. We have heard Mr. Dushyant Dave, learned Senior
Counsel appearing for Mr. B.S.Prasad, learned Advocate
4
General for the appellants in writ appeal Nos.36, 37, 43
and 44 of 2023; Mr. Gandra Mohan Rao, learned Senior
counsel appearing for Mr. A.Prabhakar Rao, learned
counsel for the appellant in writ appeal Nos.41 and 42 of
2023 and for respondent No.3 in writ appeal No.36 of 2023,
respondent No.6 in writ appeal No.37 of 2023, respondent
No.4 in writ appeal No.43 of 2023 and respondent No.4 in
writ appeal No.44 of 2023/de facto complainant;
Mr. D.V.Sitharam Murthy, learned Senior Counsel
appearing for Mr. M.V.V.Baswa Rao, learned counsel for
respondent Nos.1, 2 and 3 in writ appeal No.36 of 2023
(writ petitioners); Mr. L.Ravichander, learned Senior
Counsel appearing for Mr. M.V.V.Baswa Rao, learned
counsel for respondent Nos.1, 2 and 3 in writ appeal No.42
of 2023 (writ petitioners); Mr. J.Prabhakar and C.Damodar
Reddy, learned Senior Counsel appearing for
Mr. Balasubrahmanyam Kumarsu, learned counsel for
respondent No.1 in writ appeal No.44 of 2023;
Mr. S.D.Sanjay Tiwari, learned Senior Counsel appearing
for Ms. Bandaru Hima Varshini, learned counsel for
respondent No.1 in writ appeal Nos.36 of 2023 and 41 of
5
2023; Mr. Udaya Holla, learned Senior Counsel appearing
for Mr. V.Ram Mohan Reddy, learned counsel for
respondent No.1 in writ appeal No.43 of 2023; Mr. Gadi
Praveen Kumar, learned Deputy Solicitor General of India
for Union of India and Mr. N.Nagendran, learned counsel
for Central Bureau of Investigation (CBI).
Facts
:
6. As noted above, writ appeal No.37 of 2023 arises out
of writ petition No.40733 of 2022. Writ petition No.40733 of
2022 was filed by respondent Nos.1, 2 and 3 as the writ
petitioners seeking a declaration that the action of the
State/appellants herein in undertaking biased and unfair
investigation in F.I.R.No.455 of 2022 on the file of
Moinabad Police Station is illegal and arbitrary being in
gross violation of Articles 14 and 21 of the Constitution of
India and also being contrary to the settled principles of
free and fair investigation. Consequently, a direction was
sought for to transfer investigation in F.I.R.No.455 of 2022
on the file of Moinabad Police Station to the Central
Bureau of Investigation (CBI) or alternatively to constitute a
Special Investigation Team (SIT) to conduct enquiry in
crime (F.I.R) No.455 of 2022 registered on the file of
Moinabad Police Station under the supervision of a sitting
Judge to ensure investigation in a free and fair manner.
7. It may be mentioned that F.I.R.No.455 of 2022 was
registered on the file of Station House Officer, Moinabad
Police Station, Cyberabad Police Commissionerate under
Sections 120-B and 171-B read with Sections 171-E, 506
and 34 of the Indian Penal Code, 1860 (IPC) as well as
Section 8 of the Prevention of Corruption Act, 1988.
F.I.R.No.455 of 2022 was registered on the basis of the first
information dated 26.10.2022 lodged by Mr. Pilot Rohit
Reddy, respondent No.8 in writ petition No.40733 of 2022.
In the first information, Mr. Pilot Rohit Reddy stated that
he is a Member of Legislative Assembly (MLA) belonging to
the Telangana Rashtra Samithi (TRS) party representing
Tandur Assembly Constituency of Vikarabad District. On
26.09.2022 one Ramachandra Bharati @ Satish Sharma
from Delhi and one Nanda Kumar from Hyderabad, both
belonging to Bharatiya Janata Party (BJP), had met him.
They negotiated with the informant not to contest as a
candidate from TRS party and to join BJP by resigning
from TRS party. First informant was requested to contest
the next elections from BJP for which he was offered
Rs.100 crores. First informant was also assured that he
would be given Central Government civil contract works
and high Central Government positions for monetary
benefits, thus luring him to join BJP. However, first
informant was warned that if he did not join BJP, there
would be criminal cases and raids against him by
Enforcement Directorate (ED)/CBI; besides, the Telangana
Government led by TRS party would be toppled. First
informant stated that since the above inducement
amounted to bribery by adopting unethical and
undemocratic means, in the process encouraging
corruption and polluting the body politic, he did not
entertain such proposal. It was mentioned that on
26.10.2022, Ramachandra Bharati @ Satish Sharma and
Nanda Kumar again contacted first informant and informed
him that they were coming in the afternoon hours to his
farm house located at Azeez Nagar, Moinabad for
negotiations. First informant was also requested to
mobilise some more TRS MLAs by offering them bribes of
Rs.50 crores each to join BJP. They had also induced the
first informant and three other MLAs who came to the farm
house to receive the offered amounts and to discharge their
public duties in an improper and dishonest manner so that
the Telangana Government led by TRS party could be
destabilised. First informant was informed that
Ramachandra Bharati @ Satish Sharma of Delhi, Nanda
Kumar from Hyderabad and one Simhayaji Swamy of
Tirupathi would come to his farm house to finalise the
deal. Therefore, first informant requested the police
authority to take necessary legal action against the above
persons for indulging in unethical and undemocratic
methods offering huge amounts as bribe.
8. Based on the above, F.I.R.No.455 of 2022 was
registered by the Station House Officer of Moinabad Police
Station under the above mentioned sections.
9. In the writ affidavit, it was averred that allegations
made in the first information were false and politically
motivated. The F.I.R. was registered by the police at the
behest of the ruling TRS party.
9.1. Respondent Nos.1, 2 and 3 stated in the writ affidavit
that political motivation in lodging the F.I.R. is evident from
the fact that even before the raid was conducted by the
police, an officer of the rank of Commissioner of Police had
addressed the media; the informant and other MLAs were
not only let free but were escorted to Pragathi Bhavan i.e.,
to the official residence of the Chief Minister from the scene
of the alleged crime. It was alleged that the Chief Minister,
Commissioner of Police and MLAs belonging to the ruling
party were involved in the conspiracy. No material evidence
were seized from the informant and the three MLAs. All the
four MLAs were not subjected to any enquiry by the official
respondents.
9.2. Assistant Commissioner of Police, Rajendranagar
Division, Cyberabad Commissionerate sought for remand
of respondent Nos.1, 2 and 3. First Additional Special
Judge for SPE and ACB at Hyderabad (ACB Judge) held
that since the alleged offences are under Sections 120-B
and 171-B read with Section 171-E and Section 506 read
with Section 34 IPC and Section 8 of the Prevention of
Corruption Act, 1988 (briefly, 'the PC Act' hereinafter), the
maximum punishment prescribed would be seven years.
Therefore, guidelines of the Supreme Court in Arnesh Kumar
v. State of Bihar1 were required to be followed; it was
mandatory to issue notice under Section 41-A of the Code
of Criminal Procedure, 1973 (CrPC) to respondent Nos.1, 2
and 3. Hence, remand sought for respondent Nos.1, 2 and
3 was illegal as mandatory guidelines in Arnesh Kumar
(supra) were not followed. Accordingly, ACB Judge declined
the prayer of remand vide the order dated 27.10.2022. This
came to be challenged by the State before this Court in
criminal revision case No.699 of 2022. By order dated
29.10.2022, order dated 27.10.2022 of the ACB Judge was
set aside by a learned Single Judge of this Court.
Respondent Nos.1, 2 and 3 were directed to surrender
before the police. Against this order, respondent Nos.1, 2
and 3 preferred special leave petition before the Supreme
Court.
(2014) 8 SCC 273
9.3. Respondent Nos.1, 2 and 3 submitted that some audio
tapes were released by the media wherein conversation of
respondent No.8 with respondent Nos.1, 2 and 3 could be
heard. This clearly showed that the phones were tapped.
Such tapping of phones is unauthorised. In the
circumstances, it was alleged that the manner in which
investigation was being carried out gives an impression
that the same was not being done in a fair manner and was
done with a political motive. Investigation was being
conducted under the close monitoring of the Hon'ble Chief
Minister of Telangana for settling political scores.
Investigation carried out was not done in a fair manner.
Right of the accused for a fair and unbiased investigation
was compromised. Therefore, respondent Nos.1, 2 and 3
sought for transfer of investigation to CBI. In this
connection, reliance was placed on a number of decisions
of the Supreme Court. It was prayed that the High Court
should exercise its extraordinary jurisdiction under Article
226 of the Constitution of India and direct that the case be
enquired into by a neutral agency like the CBI or by a
Special Investigation Team to be monitored by a sitting
Judge.
10. The writ petition was contested by the appellants who
were arrayed as respondent Nos.1 to 5 by filing affidavit.
The affidavit was sworn by appellant No.4 i.e., Assistant
Commissioner of Police, Rajendranagar Division,
Cyberabad. Stand taken in the counter affidavit was that
learned Single Judge had initially granted stay of
investigation but subsequently lifted the stay vide the order
dated 08.11.2022. This came to be challenged by Bharatiya
Janata Party (BJP) before the Division Bench by filing writ
appeal No.749 of 2022. In the meanwhile, a Special
Investigation Team (SIT) was constituted by the
Government of Telangana vide G.O.Ms.No.63 of the Home
(Legal) Department, dated 09.11.2022. SIT was headed by
Mr. C.V.Anand, IPS, Commissioner of Police, Hyderabad
City and consisted of the following six members:-
1. Mrs. Rema Rajeshwari, IPS, Superintendent of
Police;
2. Mr. Kalmeshwar Shingenavar, IPS, Deputy
Commissioner of Police, Crimes, Cyberabad;
3. Mr. R.Jagadishwar Reddy, Deputy Commissioner
of Police, Shamshabad, Cyberabad;
4. Mr. N.Venkateshwarlu, Superintendent of Police,
Narayanpet;
5. Mr. B.Gangadhar, Assistant Commissioner of
Police, Rajendranagar Division, Cyberabad; and
6. Mr. Laxmi Reddy, Station House Officer, Moinabad
Police Station, Cyberabad.
10.1. In writ petition No.39767 of 2022 filed by BJP
(Telangana), a Single Judge of this Court passed an order
dated 29.10.2022 deferring investigation till filing of
counter affidavit by the State Government. In the
meanwhile, writ petition No.40733 of 2022 came to be filed
by respondent Nos.1, 2 and 3 seeking investigation in
crime No.455 of 2022 by a Special Investigation Team (SIT)
constituted by the Court or by the CBI. Both the writ
petitions were heard together. By the order dated
08.11.2022, learned Single Judge took the view that
continuing with the embargo on investigation was not
justified. Accordingly, the stay granted on 29.10.2022 was
lifted. Whereafter, Moinabad Police was allowed to go ahead
with the investigation.
10.2. Assailing the aforesaid order, BJP (Telangana) filed
writ appeal No.749 of 2022. When writ appeal No.749 of
2022 was being heard, a copy of G.O.Ms.No.63 dated
09.11.2022 issued by the Principal Secretary to the
Government of Telangana, Home (Legal) Department, was
placed before the Court. By the aforesaid G.O.Ms.No.63, a
Special Investigation Team (SIT) was constituted to
investigate crime No.455 of 2022 registered before
Moinabad Police Station. The Division Bench vide the order
dated 15.11.2022 issued certain directions allowing SIT so
constituted to proceed with the investigation but such
investigation was directed to be monitored by the learned
Single Judge. Certain other additional directions were
issued, such as, SIT should not report before any
authority, political or executive etc.
10.3. SIT had proceeded to investigate crime No.455 of
2022. Respondent Nos.1, 2 and 3 were taken into custody
by the police for two days i.e., 10.11.2022 and 11.11.2022.
Their application for bail was dismissed by the Special
Court on 14.11.2022, whereafter they were lodged in
Chanchalguda jail.
10.4. In the meanwhile, a Division Bench of this Court
passed order dated 15.11.2022 in writ appeal No.749 of
2022 directing that SIT so constituted shall conduct the
investigation but the same would be under the direct
supervision of the learned Single Judge. Certain additional
directions were issued. Order dated 15.11.2022 was
assailed by respondent Nos.1, 2 and 3 before the Supreme
Court by filing special leave petition.
10.5. Against the dismissal of bail application vide the
order dated 14.11.2022, respondent Nos.1, 2 and 3 had
filed criminal revision case No.699 of 2022 before this
Court. By the order dated 29.10.2022, criminal revision
case No.699 of 2022 was dismissed by a learned Single
Judge. Against the aforesaid order, respondent Nos.1, 2
and 3 filed S.L.P. (Criminal) No.10356 of 2022 before the
Supreme Court. By a common order dated 21.11.2022
Supreme Court disposed of both the special leave petitions
by setting aside the order dated 29.10.2022 passed in
criminal revision case No.699 of 2022 as well as the order
dated 15.11.2022 passed in writ appeal No.749 of 2022.
10.6. It was stated that in the course of investigation,
investigation officer recorded the statement of the de facto
complainant, drew up the scene of crime observation
panchnama, seized pre-arranged electrical supply gadgets
from the hall along with two voice recorders from the de
facto complainant. The seized materials clearly disclosed
conversation of respondent Nos.1, 2 and 3 with the MLAs
offering Rs.50 crores to each of the MLAs besides other
monetary benefits in the event of switching over to BJP
from TRS. The recorded voice of respondent No.1 disclosed
that respondent Nos.1, 2 and 3 had carried out similar
defection in Karnataka and in other States. Voice recorders
clearly disclosed that respondent Nos.1, 2 and 3 were in
touch with high political functionaries of BJP.
10.7. During the investigation, respondent Nos.1, 2 and 3
remained silent. Their mobile phones were seized. Print
outs of screen shorts and materials relating to the case
were taken out and seized. Voluminous documents were
found and seized containing information relating to
Telangana politics and details of 50 MLAs of TRS. One
diary found in the vehicle of respondent Nos.1, 2 and 3 was
seized. The laptop was also seized.
10.8. Evidence collected during investigation reveals that
respondent Nos.1, 2 and 3 were attempting to overthrow a
democratically elected government belonging to an
opposition political party by adopting unconstitutional and
undemocratic methods. Thus, respondent Nos.1, 2 and 3
have hatched a criminal conspiracy with other conspirators
to lure MLAs of TRS. As part of the criminal conspiracy,
respondent Nos.1 and 2 had started negotiations with the
de facto complainant offering to pay him Rs.100 crores and
Rs.50 crores to each MLA who wished to shift to BJP from
TRS. Respondent Nos.1 and 2 had intimidated the de facto
complainant with raids by Enforcement Directorate (ED)
and CBI if he did not accept the proposal.
10.9. De facto complainant had shared the above
information with three of his colleague MLAs, namely,
(1) Guvvala Balraj, (2) B.Harshavardhan Reddy and
(3) Rega Kanta Rao. All of them came forward to assist the
de facto complainant. Respondent Nos.1 and 2 had
contacted the de facto complainant and informed him that
they would visit his farm house along with respondent No.3
on 26.10.2022. At about 15.10 hours, respondent Nos.1, 2
and 3 had reached the farm house of the de facto
complainant at Azeez Nagar, Moinabad Mandal and started
negotiations with the de facto complainant to finalise the
deal. After some time, the other three MLAs arrived at the
farm house and joined the meeting. In the course of the
meeting, respondent Nos.1, 2 and 3 had lured TRS MLAs to
shift to BJP. At about 18.30 hours, respondent Nos.1, 2
and 3 were nabbed, incriminating materials were seized
and seizure panchanama was drawn. Deponent stated that
activities of respondent Nos.1, 2 and 3 prima facie
disclosed offences punishable under Sections 120-B and
171-B read with Section 171-E, 506 read with Section 34
IPC and Section 8 of the PC Act. After completing the
formalities of arrest, respondent Nos.1, 2 and 3 were
produced before the ACB Court. However, ACB Court
refused to remand respondent Nos.1, 2 and 3 to judicial
custody on the ground of violation of mandatory procedure
under Section 41-A CrPC and ordered their release.
10.10. Aggrieved by the said order, State filed criminal
revision case No.699 of 2022 before this Court and a
learned Single Judge of this Court by order dated
28.10.2022 directed respondent Nos.1, 2 and 3 to
surrender before the police and to produce them before the
concerned magistrate.
10.11. Deponent had denied the allegation that
investigation was being done in an unfair and biased
manner. Prayer of respondent Nos.1, 2 and 3 for transfer of
investigation to CBI or SIT was contested. Transfer of
investigation cannot be a routine exercise and can be done
only in exceptional circumstances.
10.12. Government of Telangana had issued G.O.Ms. No.51
dated 30.08.2022 withdrawing all previous general
consents issued for entrusting investigation to CBI.
Voluminous evidence had been gathered. Role of each and
every person in the conspiracy was being examined.
Suspects were put on notice under Section 41-A CrPC.
10.13. Therefore, it was contended that the writ petition
was devoid of any merit and should be dismissed.
11. As already noticed above, similar writ petitions were
filed wherein identical counter affidavits were filed by the
State.
12. During the pendency of the related writ petitions, a
press meet was organised by the Hon'ble Chief Minister of
Telangana on 03.11.2022. In the press meet, he stated that
voluminous evidence was collected in the criminal case and
those were being sent to various constitutional
functionaries across the country like Chief Justice of India,
Chief Justice of High Courts, Judges, Chief Ministers etc.
13. Learned Single Judge summed up the sequence of
events relevant for adjudication of the writ petitions in the
following manner:
1. F.I.R. No.455 of 2022 was registered on 26.10.2022,
on the complaint lodged by Mr. Pilot Rohit Redy,
M.L.A., Tandur Assembly Constituency of Vikarabad
belonging to TRS Party at 11.30 hours, by the Station
House Officer, Moinabad Police Station.
2. Observation Panchanama were commenced on
26.10.2022 at 12:30 hours and concluded at 14:30
hours wherein four (4) electronic spy gadgets were
installed in the farmhouse of the de facto complainant
Mr. Rohit Reddy at Moinabad by ACP, Rajendranagar.
Apart from that two voice recorders were provided to
the de facto complainant for recording conversation
with the accused. These are in the nature of 'Pre Trap
Proceedings'.
3. Seizure proceedings/panchanama were drafted on
26.10.2022 at 19:00 hours and concluded at 08:30
hours on 27.10.2022 wherein electronic spy gadgets
with video recordings (C-1 to C-4), voice recorders (C-5
and C6), mobile phones of the accused (C-7 to C-10),
Laptop of the accused (C-11), documents, diary etc., in
made up files and Hyundai Creta Car (C-12) were
seized.
4. On 29.10.2022 in W.P. No.39767 of 2022, this
Court passed order deferring the investigation till
counter is filed. The matter was adjourned to
04.11.2022.
5. Press Meet was addressed by the Hon'ble the Chief
Minister on 03.11.2022.
6. The order of this Court dated 29.10.2022 in W.P.
No.39767 of 2022 deferring investigation was vacated
by the order dated 08.11.2022.
7. The Hon'ble Chief Minister has circulated recorded
videos of the trap proceedings in CDs and pen drives to
the Hon'ble the Chief Justice of India, Hon'ble Judges
of the Supreme Court, Hon'ble the Chief Justice of the
High Court of Telangana State and other States and
many constitutional functionaries all over the country.
8. W.A. No.749 of 2022 was filed by the accused
persons challenging the order of this Court dated
08.11.2022 in W.P. No.39767 of 2022.
9. During hearing of writ appeal, Mr. Dushyant Dave,
learned senior counsel, has expressed regrets on behalf
of the Hon'ble Chief Minister of Telangana State for
sending the recorded videos to various constitutional
functionaries.
10. By the order dated 15.11.2022 in W.A. No.749 of
2022, Division Bench directed this Court to monitor
investigation of the SIT in FIR No.455 of 2022 from
time to time.
11. The accused persons approached the Hon'ble
Supreme Court in S.L.P. (Criminal) No.10356 of 2022
challenging the order in W.A. No.749 of 2022.
12. The order of another learned single Judge of this
Court in Criminal R.C. No.699 of 2022 (setting aside
order of the trial Court refusing to accept remand) was
also challenged by the accused persons before the
Hon'ble Supreme Court.
13. Common order dated 21.11.2022 was passed by the
Hon'ble Supreme Court in S.L.P. (Criminal) No.10356
of 2022 and Diary No.37248 of 2022 holding that
observations made by the learned single Judge in
Criminal R.C. No.699 of 2022 are contrary to the
judgment in Arnesh Kumar v. State of Bihar ((2014)
8 SCC 273). The order passed in W.A. No.749 of 2022
was set aside by directing this Court to pass final
orders in the writ petition seeking transfer of
investigation.
14. After considering the rival pleadings and submissions
as well as the judgments cited at the bar, learned Single
Judge framed issues for consideration, including the issue
as to whether Bharatiya Janata Party (BJP) has got locus
standi to institute writ petition No.39767 of 2022. After due
consideration and placing reliance on the decision of the
Supreme Court in Romila Thapar v. Union of India2 it was held
that a third party cannot be permitted to espouse the cause
of the accused when the accused themselves are pursuing
(2018) 10 SCC 753
the writ petition. Following the law laid down by the
Supreme Court in Romila Thapar (supra), writ petition
No.39767 of 2022 was held to be not maintainable and was
accordingly dismissed.
15. Insofar writ petition No.40733 of 2022 is concerned,
the same was allowed by the learned Single Judge by
holding as follows:-
36. FIR discloses commission of cognizable offence
and investigation is bound to be done in accordance with
law. Police excesses, investigation officers acting
unusually and beyond jurisdiction violating judicial
precedents can be remedied from time to time and rightly
so, orders have been passed by this Court and other
Benches of this Court granting interim protection of arrest
pursuant to Section 41-A of Cr.P.C notices. It is stated
that accused Nos.1 to 3 are released on bail. So far as
other accused, against whom Section 41-A of Cr.P.C.
notices were issued, are concerned, it is stated that stay
has been granted by other Benches of this Court in
separate cases. Thus, it cannot be said that any prejudice
is caused to the accused on the aspect of violation of
provisions of law, more particularly, Section 41-A Cr.P.C
and judgment of the Hon'ble Supreme Court in Arnesh
Kumar v. State of Bihar ((2014) 8 SCC 273).
37. The words spoken by the Hon'ble Chief Minister
and agony expressed repeatedly saying that democracy is
being murdered and several other statements imputing
the top leaders of the BJP in the contemporary political
scenario are nothing unusual. With a conscious mind this
Court refrains to make any further observations on the
speech of the Hon'ble Chief Minister, though the same has
been repeatedly pointed out by the learned counsel
appearing for the petitioners, by keeping in mind the
prejudice that may cause to the de facto
complainant/victims.
38. In the above conspectus, the issue boils down
to the third folder of CD/Pen Drives, which have been
taken on record by this Court and circulated by the Chief
Minister to the Hon'ble Chief Justice of India, the Hon'ble
Chief Justice of this Court and the Hon'ble Chief Justices
of other States. The controversy regarding poaching of
MLAs is, no doubt, a serious one. The official press
conference arranged by the Chief Minister and speaking
about the sequence of events and the attempt made to
poach ruling party MLAs is understandable. What is
required to be seen is whether the procedure established
by law has been breached. The manner in which the video
recordings through electronic spy gadgets and the
documents (C-1 to C-6) have been uploaded in the public
domain tested on the view point of accused would
certainly cause prejudice to them. Though the
investigation is at the preliminary stage, crucial
documents, which were in the nature of pre-trap
proceedings, have come out open in public.
39. None of the learned counsel appearing for the
State have clarified or explained to the Court as to how
these CDs and pen drives had surfaced in the Press Meet
of the Hon'ble Chief Minister. Not only in the pleadings,
even in the oral submissions, the respondents have
maintained stoic silence and have chosen to be very
cautious on the leakage of investigation material. A veiled
attempt was made by the learned Additional Advocate
General stating that the de facto complainant might have
handed over the CDs/pen drives to the Hon'ble Chief
Minister.
40. Mr. A. Prabhakar Rao, learned counsel
appearing for the de facto complainant - respondent No.8
in W.P. No.39767 of 2022, has also stated that the de
facto complainant might have handed over the CDs, but
there is no clear assertion and evidence to that effect. The
contentions of Mr. J. Prabhakar, learned senior counsel
appearing for one of the petitioners, with reference to
procedure of search and handing over only the list of
documents to the de facto complainant under Cr.P.C. and
instructions in the Police Manual have not been
controverted by the learned counsel for the respondents.
Moreover, nothing is argued before this Court as to at
what stage and under what provisions of Cr.P.C., the de
facto complainant could have access to the documents
and material seized during the investigation. The crime
was registered on 26.10.2022. The electronic spy gadgets
were seized on 26/27.10.2022 containing the video
recording (third file) which are in the nature of trap
proceedings, and undoubtedly crucial and critical part of
investigation, should not have been handed over to any
third party. In the political tussle between the BJP and
the TRS Party, the constitutional and statutory rights of
the accused seems to have been forgotten. The
investigation officers have committed serious lapses. It
appears, to cover up such lapses, SIT was constituted on
09.11.2022. When accused are condemned publicly and
branded as conspirators levelling serious allegations by
none other than the Hon'ble Chief Minister by conducting
Press Meet and circulating the videos to the important
constitutional functionaries, even before charge sheet is
filed and at the initial stages of the investigation, it cannot
be said that investigation is being done in an unbiased
and fair manner.
41. As contended by Mr. Mahesh Jethmalani,
learned senior counsel, in W.P. No.40733 of 2022, actual
bias need not be proved and it would suffice if legitimate
and reasonable apprehension of bias, taint and unfair
investigation is made out by the accused. In Babubhai v.
State of Gujarat ((2010) 12 SCC 254), investigation was
transferred. In the said decision, it was held that not only
fair trial but investigation is also part of constitutional
rights guaranteed under Articles 20 and 21 of the
Constitution of India. It is not necessary that actual bias
should be proved and issue has to be examined from the
view point of the accused to see whether any prejudice is
caused or not. However, apprehension of the accused
about unfair and biased investigation should not be
unrealistic but genuine as held by the Hon'ble Supreme
Court in Mohan Lal v. State of Gujarat ((2018) 17 SCC
627). In the instant case, the events which have unfolded
from the date of registration of crime on 26.10.2022 till
the Press Conference of the Hon'ble Chief Minister on
03.11.2022, making the investigation CDs/material public
without any hesitation would cause reasonable
apprehension in the mind of the accused about fair and
unbiased investigation.
42. In these circumstances, this Court is of the view
that serious prejudice is caused to the accused, who are
branded publicly as conspirators, thereby, depriving their
rights to effectively defend the criminal proceedings and
availing their legal remedies under law. These events run
contrary to the fundamental concept of criminal law
jurisprudence that every accused is deemed to be innocent
until proven guilty. As noted above, the learned counsel
for the respondents have not pointed out any provisions of
the Cr.P.C. nor offered any plausible explanation or theory
as to how the third video CDs/pen drives which have been
seized under mediators' report panchanama on
27.10.2022 in F.I.R. No.455 of 2022 have been handed
over to the Hon'ble Chief Minister. Who has handed over
the same, when and how, remains a mystery. In spite of
that, to say that no prejudice is caused to the accused is
unreasonable and unacceptable. If action of the police is
not in accordance with the procedure established by law,
even at the initial stages, this Court, exercising
jurisdiction under Article 226 of the Constitution of India,
should not shirk its responsibility to set rights things. The
contention of the learned counsel for the State - Police
that the petitioners have remedies under law and they
may challenge the proceedings at the appropriate time and
the investigation at this nascent stage should not be
interfered cannot be sustained. The rights of the accused
stand at a high pedestal in the criminal law jurisprudence
as held by the Hon'ble Supreme Court in Ankush Maruti
Shinde v. State of Maharashtra ((2019) 15 SCC 470).
Having found serious lapses and leakage of investigation
material/CDs, it is difficult to accept the contention of the
learned counsel for the respondents - State that this Court
should lay off its hands merely because the investigation
is at preliminary stage. Rights of the accused to have fair
and unbiased investigation are defeated in this case which
is in violation of Articles 14 and 21 of the Constitution of
India.
43. In the opinion of this Court, constitution of SIT
under G.O. Ms. No.63 which act under the Government
will not alter the situation, more particularly, when an
authority none other than the Hon'ble Chief Minister
himself has openly circulated the videos and branded the
accused and members of the organised crime as
conspirators. The entire episode and turn of events is
something unprecedented and incomprehensible and
unhesitatingly, this Court holds that the accused have
made out a case for transfer of investigation. So far as
other points raised by the learned counsel regarding
violation of G.O. Ms. No.268 etc., and that investigation by
regular police is not permissible under the PC Act are not
considered as the pleadings to that effect in the writ
affidavits are very vague; in any event, these are not
necessary to be dealt with in the light of the above
observations.
16. Finally by the impugned judgment and order dated
26.12.2022, learned Single Judge quashed G.O.Ms.No.63
issued by the Home (Legal) Department dated 09.11.2022
appointing SIT. Learned Single Judge directed that
investigation in F.I.R.No.455 of 2022 shall be forthwith
transferred to CBI which shall proceed with de novo
investigation in F.I.R.No.455 of 2022. Learned Single Judge
also quashed the investigation carried out in F.I.R.No.455
of 2022 till date. In the process, learned Single Judge
allowed writ petition No.40733 of 2022 and two other writ
petitions. As already noticed above, writ petition No.39767
of 2022 was dismissed as not being maintainable. Further,
in view of the above orders, learned Single Judge observed
that no additional order was required to be passed in writ
petition No.42228 of 2022; accordingly, the said writ
petition was closed.
17. The present batch of writ appeals arise out of the
common judgment and order dated 26.12.2022 passed by
the learned Single Judge in the aforesaid writ petitions.
Interestingly, writ appeal No.44 of 2023 has been filed by
the State against the aforesaid judgment and order of the
learned Single Judge dismissing writ petition No.39767 of
2022. It is not understood as to how the State can be said
to be aggrieved by dismissal of the said writ petition and
therefore how the writ appeal is maintainable.
Submissions:
18. Before Mr. Dushyant Dave, learned Senior Counsel
appearing for the appellants in writ appeal No.37 of 2023
could make his submissions, Mr. D.V.Sitharam Murthy,
learned Senior Counsel for respondent Nos.1, 2 and 3
raised a preliminary objection as to maintainability of the
writ appeal. According to him, learned Single Judge had
passed the order in a matter relating to criminal
jurisdiction. Therefore, having regard to the mandate of
Clause 15 of the Letters Patent, writ appeal would not be
maintainable.
19. Mr. Dushyant Dave, at the outset has referred to the
judgment and order of the learned Single Judge in detail.
According to him, Hon'ble Chief Minister of Telagnana was
not joined as a party respondent in the said proceedings.
However, wild and vague allegations were made against the
Hon'ble Chief Minister. Referring to the directions of the
learned Single Judge in quashing constitution of SIT,
further quashing investigation carried out by SIT and
thereafter directing that investigation be carried out by
CBI, he submits that those are extraordinary directions.
Such directions are totally uncalled for and unwarranted
since there was no material before the learned Single Judge
to transfer investigation to CBI. He submits that directing
transfer of investigation from a high powered Special
Investigation Team (SIT) constituted by the State
Government to the CBI cannot be done in a routine
manner. There is nothing extraordinary in this case to
justify transfer of investigation. According to him, learned
Single Judge had himself observed at various places of the
judgment that holding of press conference by the Hon'ble
Chief Minister cannot be construed to be an interference in
investigation. It is a legitimate political activity. Chief
Minister of a democratically elected government has every
right to tell the people as well as his electorate that his
elected government is under the threat of being overthrown
by undemocratic methods. Insofar the third CD/pen drive
is concerned, the contents thereof pertain to the
conversation of the accused with the de facto complainant
and others. Those materials were already in the public
domain. Merely because these materials in the form of
CD/pen drive were sent by the Hon'ble Chief Minister to
various constitutional functionaries would not vitiate the
investigation by SIT to warrant transfer of investigation. He
further submits that crime No.455 of 2022 arises out of
trap proceedings. The accused were caught red-handed.
Therefore, there is nothing so sacrosanct in the CD/pen
drive that circulation of the same would vitiate the
investigation carried out, those materials already being in
the public domain, and therefore, there can be no valid
reason that the investigation should be handed over to the
CBI. Direction of the learned Single Judge to transfer
investigation to CBI is all the more baffling because learned
Senior Counsel for respondent Nos.1, 2 and 3 himself had
given up the prayer for handing over of investigation to
CBI.
19.1. Mr. Dushyant Dave, learned Senior Counsel has
taken the Court to various grounds of appeal including the
judgments referred to thereunder. While taking the Court
to the grounds of appeal, learned Senior Counsel has
referred to the decision of the Supreme Court in Mohinder
Singh Gill v. Chief Election Commissioner3 to highlight the
importance and significance of democracy. His submission
is that parliamentary democracy is a basic structure of the
Constitution of India. Therefore, trying to bribe and lure
MLAs to change political loyalty is a complete antithesis to
democratic principles and subversive to parliamentary
democracy.
19.2. Insofar plea of mala fides/motive being attributed to
the Hon'ble Chief Minister, he submits that mere
allegations or suspicions would not be sufficient. Person
against whom mala fide is attributed is a necessary party
to the proceedings. Such a person must be put on notice
and heard. In this connection, learned Senior Counsel has
placed reliance on a decision of the Supreme Court in
Prakash Singh Badal v. State of Punjab4.
19.3. Relying on the decision of the Supreme Court in
E.P.Royappa v. State of Tamil Nadu5, he submits that burden
of establishing mala fides is very heavy on the person who
(1978) 1 SCC 405
(2007) 1 SCC 1
(1974) 4 SCC 3
alleges it. Allegations of mala fides are often easily made
than proved. The very seriousness of such allegations
demands proof of a high order of credibility.
19.4. None of the above aspects were considered by the
learned Single Judge while directing transfer of
investigation.
19.5. In the course of his submissions, Mr. Dushyant Dave,
learned Senior Counsel has also placed reliance on the
decision of the Supreme Court in H.N.Rishbud v. State of
Delhi6. Referring to the said judgment, which dealt with
investigation under the Prevention of Corruption Act, 1947,
as well as under the Criminal Procedure Code, 1898, he
submits that Supreme Court considered the question as to
whether trial proceedings initiated on charge sheets which
were filed on the basis of faulty investigation were legal and
required to be quashed. After referring to various
provisions of the Criminal Procedure Code, Supreme Court
held that trial follows cognizance and cognizance is
preceded by investigation. A defect or illegality in
AIR 1955 SC 196
investigation, howsoever serious, has no direct bearing on
the competence or the procedure relating to cognizance or
trial. An irregularity committed in the course of
investigation does not affect the competence and
jurisdiction of the court for trial. Result of the trial which
follows such investigation cannot be mechanically set aside
unless illegality in the investigation can be shown to have
brought about miscarriage of justice.
19.6. Mr. Dushyant Dave, learned Senior Counsel contends
that it is trite law that police has a statutory duty to
investigate. Court should not interfere in such investigation
except in rarest of the rare cases. Referring to the decision
of the Supreme Court in Union of India v. Prakash P. Hinduja7,
he submits that the legal position has been settled by
judicial authorities that the court would not interfere with
the investigation or during the course of the investigation
which would mean that from the time of lodging of F.I.R.
till submission of report by the officer in charge of the
police station in the court under Section 173(2) of the
CrPC, this field is exclusively reserved for the investigating
(2003) 6 SCC 195
agency. It is the duty of the police to collect evidence in the
investigation and place it before the court; it is the criminal
court which will decide the truthfulness of the accusations
on the basis of evidence gathered by the police during
investigation. Throughout the criminal proceedings, the
accused will have adequate remedy by seeking discharge or
quashing of proceedings, if the accused is of the belief that
he is being unnecessarily entangled in a criminal case.
19.7. Adverting to the preliminary objection raised by
Mr. D.V.Sitharam Murthy, Mr. Dushyant Dave submits
that the writ appeal is clearly maintainable. Writ petition
was filed seeking a writ of mandamus. Learned Single
Judge has issued a writ of mandamus under Article 226 of
the Constitution of India on the grievance expressed by the
writ petitioners that their fundamental right to a fair
investigation and reputation under Article 21 of the
Constitution of India was being breached by the State.
Therefore, against such an order of learned Single Judge,
writ appeal is clearly maintainable. Learned Single Judge
had not exercised criminal jurisdiction. If it is contended
that learned Single Judge had exercised criminal
jurisdiction, then proceedings before the learned Single
Judge would be a nullity in as much as, as per roster
learned Single Judge did not have criminal jurisdiction. If
this is the stand of the respondents in appeal, the same
would be equally applicable to the writ proceedings on the
basis of which writ petitioners would be non-suited.
Therefore, it would be too farfetched to contend that
learned Single Judge had exercised criminal jurisdiction
because of which writ appeal under Clause 15 of the
Letters Patent would not be maintainable.
20. Mr. Gandra Mohan Rao, learned Senior Counsel
appearing for the de facto complainant, respondent No.6,
who was respondent No.8 in the writ proceedings, submits
that no notice was issued by the learned Single Judge to
the de facto complainant. Non-issuance of notice to the de
facto complainant is a material irregularity which has
vitiated the judgment of the learned Single Judge. He has
elaborately referred to the contents of the first information
and submits therefrom that the de facto complainant was
very much a necessary party to the writ proceedings. In
fact, the scene of the crime was at his farm house located
at Azeez Nagar, Moinabad.
20.1. Referring to paragraph 19.2 of the judgment of the
learned Single Judge, he submits that date of the judgment
is 26.12.2022 and on the very same day, learned Single
Judge had allowed I.A.No.2 of 2022 in W.P.No.43144 of
2022 taking on board the video recording uploaded in the
CD in three separate files/folders by treating them as
additional evidence. No opportunity was granted to the
contesting parties to have their say in I.A.No.2 of 2022.
This is a gross procedural irregularity committed by the
learned Single Judge.
20.2. Adverting to the contents of the CDs, more
particularly to those described in paragraph 20.3 of the
judgment, learned Senior Counsel for respondent No.6
submits that those materials were already in the public
domain. Therefore, reference made to it by the Hon'ble
Chief Minister or circulating those materials by the Hon'ble
Chief Minister cannot be faulted. Hon'ble Chief Minister
had highlighted the issue that what has happened in the
present case is not a solitary instance or a minor attempt
at bribery. It is a threat to democracy itself, seeking to
overthrow a democratically elected government through
bribes and intimidation.
20.3. Insofar handing over of investigation to CBI is
concerned, learned Senior Counsel submits that even the
writ petitioners were not specific about a CBI enquiry. He
submits that Mr. Mahesh Jethmalani, learned Senior
Counsel who had appeared for the writ petitioners/
respondent Nos.1, 2 and 3 herein had categorically
submitted before the learned Single Judge which has been
recorded in paragraph 10.5 of the judgment that the writ
petitioners were not insisting that there should be
investigation only by CBI; it was submitted that learned
Single Judge may exercise discretion and transfer the
investigation to any other agency.
20.4. Finding fault with the decision of the learned Single
Judge in entrusting the investigation to CBI, learned Senior
Counsel for respondent No.6 seeks setting aside of the
aforesaid order of the learned Single Judge.
21. Mr. D.V.Sitharam Murthy, learned Senior Counsel
has appeared on behalf of respondent Nos.1, 2 and 3 i.e.,
the writ petitioners. Reiterating the preliminary objection
raised by him at the threshold, he submits that the writ
appeals are not maintainable. Learned Senior Counsel has
placed reliance on the decision of the Supreme Court in
Ram Kishan Fauji v. State of Haryana8 in support of the
aforesaid contention. Before taking the Court to the
aforesaid decision, he has referred to Clause 15 of the
Letters Patent of Telangana High Court. He submits that
considering the limited scope and ambit of Letters Patent
appeal, no such appeal would lie against the order passed
by the learned Single Judge in a matter involving criminal
jurisdiction, even though it is a decision under Article 226
of the Constitution of India. Referring to Ram Kishan Fauji
(supra), learned Senior Counsel submits that Supreme
Court has emphatically held that if the proceeding, nature
(2017) 5 SCC 533
and relief sought for pertain to anything connected with
criminal jurisdiction, an intra-court appeal would not lie.
21.1. He submits that a Full Bench of the Andhra Pradesh
High Court in Gangaram Kandaram v. Sunder Chikha Amin9
had held that issuing a writ of mandamus or certiorari by
the High Court under Article 226 of the Constitution of
India pertaining to a criminal complaint or proceeding
cannot be said to be an order passed in exercise of criminal
jurisdiction. Therefore, Andhra Pradesh High Court held
that an appeal would lie under Clause 15 of the Letters
Patent from the order of the learned Single Judge quashing
investigation in a criminal case under Article 226 of the
Constitution of India. However, Supreme Court noted that
a Division Bench of the Gujarat High Court in Sanjeev
Rajendrabhai Bhatt v. State of Gujarat10 had held that 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 would still be a "criminal proceeding" within the
2000 (2) APLJ 1 (HC) : 2000 SCC OnLine AP 119
(2000) 41 (1) GLR 206
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 would
continue to remain a "criminal proceeding" covered by the
bracketed portion of Clause 15 of the Letters Patent.
Thereafter, Division Bench of Gujarat High Court ruled
that as Clause 15 of the Letters Patent expressly bars an
appeal against an order passed by a learned Single Judge
of the High Court in exercise of criminal jurisdiction,
Letters Patent appeal against such an order would not be
maintainable.
21.2. Mr. D.V.Sitharam Murthy, learned Senior Counsel
thereafter referred to the Full Bench decision of the Delhi
High Court in C.S.Agarwal v. State11. He submits that Full
Bench of the Delhi High Court had held that proceedings
under Article 226 of the Constitution of India would be
treated as original civil proceeding only when it concerns
civil rights. If it concerns a criminal matter, then such
proceedings would be original criminal proceedings. Letters
Patent appeal would lie when the learned Single Judge
2011 SCC OnLine Del 3136
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 stated that the learned Single Judge was exercising his
criminal jurisdiction while one deals with such a petition
being filed under Article 226 of the Constitution of India.
21.3. Learned Senior Counsel on the basis of the Supreme
Court decision in Ram Kishan Fauji (supra) contended that
the conception of "criminal jurisdiction" as used in Clause
15 of the Letters Patent is not to be construed in the
narrow sense. It encompasses in its gamut the inception
and the consequence. What is relevant is the field in
respect of which the jurisdiction is exercised. Supreme
Court has held that Gujarat and Delhi High Court had
correctly laid down the law; the view expressed by the Full
Bench of the Andhra Pradesh High Court did not lay down
the correct law. On the basis of the decision of the
Supreme Court in Ram Kishan Fauji (supra), he submits that
the writ appeal is not maintainable and therefore should be
dismissed.
21.4. Insofar the contention of Mr. Gandra Mohan Rao,
learned Senior Counsel for the de facto complainant is
concerned, Mr. D.V.Sitharam Murthy, learned Senior
Counsel for respondent Nos.1, 2 and 3 submits that the de
facto complainant was arrayed as respondent No.8 in writ
petition No.40733 of 2022. He had himself appeared before
the Court and had filed counter affidavit, which was
considered by the learned Single Judge. When the de facto
complainant had himself appeared and participated in the
writ proceedings, he cannot turn around and now contend
that notice was not issued or served upon him. Such a
contention has to be recorded only to be rejected.
21.5. Adverting to page 63 of the paper book, he submits
that the de facto complainant was represented by
Mr. A.Prabhakar Rao, learned Senior Counsel who had
argued the matter and his submissions were recorded by
the learned Single Judge in paragraph 17 of the judgment.
21.6. On merit, he submits that learned Single Judge has
pointed out several contradictions in the F.I.R. as well as in
the application seeking remand filed before the magistrate.
Adverting to G.O.Ms.No.63 dated 09.11.2022 (pg. 438 of
the paper book), he submits that while requesting the
government to constitute a Special Investigation Team (SIT)
to carry out proper investigation in crime No.455 of 2022,
Director General of Police had opined that the case is
sensitive, high profile and sensational in nature and as it
involves investigation in multiple dimensions, which
requires thorough scientific and evidence based
investigation in an elaborate manner; it requires officers
with experience and requisite expertise with specific skill
sets to carry out investigation. Pausing here for a moment,
learned Senior Counsel submits that his clients, i.e.,
respondent Nos.1, 2 and 3 (writ petitioners) are ordinary
persons. Under no circumstances, can they be termed as
high profile. Director General of Police had at the very
threshold taken the view that the case would involve high
profile people. This only discloses the pre-determined or
pre-conceived nature of investigation sought to be carried
out by the police and SIT. Such motivated investigation has
rightly been interdicted by the learned Single Judge.
Concluding his submissions, learned Senior Counsel
contends that writ appeals are liable to be dismissed both
on the point of maintainability as well as on merits.
22. Mr. L.Ravichander, learned Senior Counsel has also
appeared on behalf of the same set of respondents though
in a different appeal being W.A.No.42 of 2023.
22.1. Assailing the submissions made on behalf of the de
facto complainant that he was not put on notice, learned
Senior Counsel has referred to page 8 of the paper book
and submits therefrom that in writ petition No.40733 of
2022, the cause title clearly mentions that counsel for
respondent No.8 (de facto complainant - Mr. Pilot Rohit
Reddy) was Mr. A.Prabhakar Rao, whose presence was duly
noted. Adverting to paragraph 40 of the judgment of the
learned Single Judge at page 103 of the paper book, Mr.
L.Ravichander, learned Senior Counsel submits that
submissions of Mr. A.Prabhakar Rao, learned Senior
Counsel appearing for the de facto complainant were duly
recorded and considered by the learned Single Judge.
Therefore, non-issuance of formal notice to the de facto
complainant had caused no prejudice to him and this
cannot be put up as a ground of appeal to the well
reasoned findings of the learned Single Judge.
22.2. Adverting to paragraph 21 of the judgment of the
learned Single Judge at page 73 of the paper book, learned
Senior Counsel submits that it was specifically pleaded in
paragraph 5 of the writ affidavit in W.P.No.43144 of 2022
and again in paragraphs 6, 7 and 8 of the writ affidavit in
W.P.No.43339 of 2022 that the Assistant Commissioner of
Police, Rajendranagar had handed over the investigation
material in pen drives to the Hon'ble Chief Minister of the
Telangana, who inturn had sent those materials in the
form of CDs to various constitutional functionaries of the
country. He submits that the State could not deny such
assertion of the writ petitioners. He has also referred to
G.O.Ms.No.63 dated 09.11.2022 constituting the SIT and
submits therefrom that before investigation could progress,
Director General of Police had already formed an opinion
that high profile people are involved in this case. Therefore
the investigation was already motivated. Such motivated
investigation would be an abuse of the criminal process.
22.3. Learned Senior Counsel submits that the
investigation initiated by the police or by the SIT is
completely tainted. No fair investigation is possible. Placing
reliance on an English decision in R. v. Sussex Justices12, he
submits that justice should not only be done but should
manifestly and undoubtedly be seen to be done. This has
been relied upon by the Supreme Court in Justice
P.D.Dinakaran v. Judges Inquiry Committee13.
22.4. Refuting the submissions of Mr. Dave that on one
hand allegation of mala fides were made against the
Hon'ble Chief Minister by the writ petitioners but on the
other hand he was not arrayed as a party to the writ
proceedings, Mr. L.Ravichander, learned Senior Counsel for
respondent Nos.1, 2 and 3 submits that while this is
factually incorrect in as much as the Hon'ble Chief Minister
was in fact arrayed as a respondent in the writ petitions,
but the point is that allegations made by respondent Nos.1,
(1924) 1 KB 256
(2011) 8 SCC 380
2 and 3 are based on legal malice. Placing reliance on the
decision of the Supreme Court in Kalabharati Advertising v.
Hemant Vimalnath Narichania (decided on 06.09.2010), he
submits that the State is under an obligation to act fairly
without any ill-will or malice - in fact or in law. Elaborating
further, he submits that legal malice or malice in law
means something done without lawful excuse. It is an act
done wrongfully and wilfully without reasonable or
probable cause and not necessarily an act done from ill-
feeling and spite. It is a deliberate act in disregard to the
rights of others. Where malice is attributed to the State, it
can never be a case of personal ill-will or spite on the part
of the State. It is an act which is taken with an oblique or
indirect object. It means exercise of statutory power for
purposes foreign to those for which it is in law intended. It
means a conscious violation of the law to the prejudice of
another.
22.5. Insofar appellate jurisdiction is concerned, he
submits that this Court is exercising jurisdiction under
Clause 15 of the Letters Patent. If two views are reasonably
possible, then the view taken by the learned Single Judge
should not be disturbed or substituted by a different view
taken by the appellate bench. He submits that view taken
by learned Single Judge is a reasonable and a plausible
view and therefore, the same should not be disturbed.
Further, insofar jurisdiction of the High Court under
Clause 15 of the Letters Patent is concerned, the same can
be exercised by the Division Bench only if the judgment of
the learned Single Judge is totally perverse. In this
connection, he has placed reliance on a Division Bench
decision of the Andhra Pradesh High Court in N.Seshaiah v.
South Central Railway (Writ Appeal No.207 of 2019, decided
on 18.09.2019).
22.6. Before concluding, he submits that appellants had
filed a memo before the learned ACB Judge informing him
that police intended to add a few more persons as accused.
ACB Judge had passed a detailed order refusing to accept
such memo of the appellants. In the said order, he had also
questioned the very constitution of SIT. Assailing such
order of the learned ACB Judge, State had filed a criminal
revision case before the learned Single Judge of this Court
which has been dismissed. Therefore, de hors the judgment
of the learned Single Judge, in view of the decision of this
Court confirming the view taken by the learned ACB Judge,
there is no way that SIT can function as an investigating
agency.
23. Mr. C.Damodar Reddy, learned Senior Counsel has
appeared for Bharatiya Janata Party (BJP). BJP had filed
writ petition No.39767 of 2022 challenging the biased and
unfair investigation in F.I.R.No.455 of 2022 and had
sought for transfer of investigation to CBI or alternatively,
for constitution of SIT by the Court. However, learned
Single Judge by the aforesaid judgment and order has
dismissed the writ petition as not being maintainable. He
submits that it is indeed very surprising that against such
dismissal order, State has filed appeal being writ appeal
No.44 of 2022. This writ appeal has got no merit at all and
should be dismissed. He submits that several sweeping and
unsubstantiated allegations have been made against his
client and therefore, it is his duty to put the record
straight. He submits that TRS party itself has scant regard
for democracy. In the past, it had resorted to unethical
practices to lure MLAs from other political parties. One
such M.L.A. who has defected from the Congress party to
the TRS party is the de facto complainant himself. His
disqualification application under the anti-defection law is
still pending. It, therefore, does not lie in his mouth to
speak about democracy or threat to democracy.
24. Mr. Uday Holla, learned Senior Counsel representing
Mr. Bhusarapu Srinivas, learned counsel for respondent
No.1 in writ appeal No.43 of 2023 submits that there is
complete misuse of State machinery by the Telangana
Government. To serve a notice under Section 41A of the
Code of Criminal Procedure, 1973 (CrPC) upon his client,
Assistant Commissioner of Police in the SIT went with a
huge posse of policemen to his residence. It is a clear case
of intimidation. Being a practising advocate, he is in no
way connected with the controversy. Unnecessarily, he is
sought to be dragged into the case. There is absolute lack
of objectivity by the State police. Therefore, he had
challenged the notice issued under Section 41A of CrPC by
filing W.P.No.42228 of 2022. However, learned Single
Judge in paragraph 44.3 of the judgment and order held
that in view of the orders passed in the other writ petitions
quashing SIT and transferring investigation to CBI, no
orders were required to be passed in W.P.No.42228 of
2022, which was accordingly closed.
25. We have also heard Mr. S.D.Sanjay Tiwari, learned
Senior Counsel representing respondent No.1 in writ
appeal No.36 of 2023 which has arisen out of
W.P.No.43339 of 2022. While reiterating the submissions
made by learned Senior Counsel for the respondents, he
has also added that learned Single Judge has considered
all aspects of the matter in a thorough and dispassionate
manner. Thereafter, learned Single Judge had come to a
definite conclusion that under the police or under the SIT,
there can be no fair investigation. Rights of the accused
would be severely jeopardised under such investigation.
Therefore, learned Single Judge has rightly quashed
constitution of SIT and directed handing over of
investigation to CBI. CBI is an independent investigating
agency constituted under the Delhi Special Police
Establishment Act, 1946. Investigation by CBI will reveal
the truth or otherwise of the allegations made by the de
facto complainant. De facto complainant had made an
accusation; if truth is on his side, he need not worry as to
which agency investigates the truth of his accusation. He,
therefore, submits that all the writ appeals should be
dismissed.
26. In his reply submissions, Mr. Dushyant Dave,
learned Senior Counsel for the appellants has referred to
Clause 15 of the Letters Patent and thereafter submits that
judgment and order of the learned Single Judge cannot be
said to have been rendered in exercise of criminal
jurisdiction. Adverting to the pleadings and relief sought for
by the writ petitioners in the writ petition, he submits that
those are purely civil and public law remedy. There was no
exercise of criminal jurisdiction by the learned Single
Judge. Relief sought for by the writ petitioners was not to
quash F.I.R. or the investigation. What they had
complained before the learned Single Judge was violation of
their statutory and fundamental rights. The writ petitions
were clearly filed under Article 226 of the Constitution of
India seeking a mandamus for transfer of investigation
which prayer was purely constitutional and civil in nature.
Writ petitioners did not challenge the F.I.R nor the
investigation. Therefore, it cannot be said that learned
Single Judge had exercised criminal jurisdiction. Learned
Senior Counsel has placed reliance on the decision of Praga
Tools Corporation v. C.A.Imanual14 and also on the decision in
Umaji Keshao Meshram v. Radhikabai15 to contend that the
writ appeal is clearly maintainable.
26.1. Learned Senior Counsel has made elaborate
submissions on merit as well. Referring to the decision of
the Supreme Court in Romila Thapar (supra), he submits
that though the accused has a right to fair and impartial
investigation besides freedom from unlawful arrest, the
accused cannot seek that investigation should be carried
out by a particular agency.
(1969) 1 SCC 585
1986 (Supp) SCC 401
26.2. Reverting back to the appeal papers, he submits that
from page 305 of the paper book it is seen that in the
remand application of the investigating officer, CD was
submitted before the remand magistrate. He submits that
from the remand application dated 27.10.2022, second
remand application dated 29.10.2022 and the proceedings
before the learned Single Judge on 03.11.2022, it would be
evident that all the materials were in public domain.
Nothing remained confidential. He submits that BJP
rushed to the court by filing writ petition No.39767 of 2022
immediately on the very next day of lodging of F.I.R. If the
BJP contends that it has got nothing to do with the
accused persons, then there is no reason for it to become
so apprehensive. He submits that the present is clearly a
trap proceeding in which the accused persons had
participated voluntarily. Thus, the offence stood
committed. In this context, the press meet by the Hon'ble
Chief Minister is really immaterial. Adverting to the
decision in State of Haryana v. Bhajan Lal16, he submits that
the allegations clearly make out commission of cognizable
1992 Supp (1) SCC 335
offence. Police has a statutory duty to investigate. Court
should not interfere in the investigation. In that case,
Supreme Court clarified that personal animosity of the
complainant would by itself not be a ground to discard the
complaint containing serious allegations which have to be
tested and weighed after the evidence is collected. Learned
Senior Counsel has referred to the decision in Supreme
Court Advocates-on-Record Association v. Union of India17 and
submits that independence of the judiciary as a part of the
basic structure of the Constitution is to secure the rule of
law essential for preservation of the democratic system. He
submits that there is no room for any compromise with the
basic scheme of our constitution. No person is above the
law and cautioned that the courts should be unbending
before power, economic or political.
26.3. Proceeding further, learned Senior Counsel has
pointed out that learned Single Judge had merely referred
to certain decisions, such as, Babubhai v. State of Gujarat18,
(1993) 4 SCC 441
(2010) 12 SCC 254
Mohan Lal v. State of Gujarat19 and Pooja Pal v. Union of India20
without any proper analysis as to the applicability of the
said decisions in the facts of the present case and
thereafter reached the impugned conclusions which cannot
be justified in law as well as on facts.
26.4. Mr. Dave, learned Senior Counsel has submitted a
set of fresh material papers, wherefrom he submits that
certain highly objectionable statements have been made by
one of the persons to whom notice under Section 41A of
CrPC was issued. He has virtually threatened the
investigation team as well as the de facto complainant that
they would have to face the consequences of dragging his
name into the case. Such statements made when the
hearing of the appeals is in progress virtually amounts to
committing criminal contempt as defined under Section
2(c) of the Contempt of Courts Act, 1971.
26.5. Referring to a decision of the Supreme Court in State
of West Bengal v. Sampat Lal21, Mr. Dave submits that
(2018) 17 SCC 627
(2016) 3 SCC 135
(1985) 1 SCC 317
Supreme Court had placed or rather reposed full
confidence in the State police holding that there was no
necessity of the CBI being called in as was done by the
High Court. That was a case where Calcutta High Court
had acted upon letters which alleged that two young boys
by names, Tirthankar Das Sharma and Sanjib Chatterjee
living in Barrackpore area, were found missing.
Subsequently, dead bodies of the two boys were found from
the railway track. Those were disposed of by the local
police without taking any steps for identification. The
letters alleged that parents of the two boys had approached
various authorities including the Chief Minister, but no
importance was given. It was alleged that Chief Minister
had made a statement even before completion of
investigation that it was a case of suicide. The letters were
treated as writ petition, whereafter a learned Single Judge
of the Calcutta High Court directed CBI to cause an
enquiry and to report back to the Court. Division Bench of
the Calcutta High Court clarified that direction by the
learned Single Judge was to the Deputy Inspector General
of CBI to act as special officer for the purpose of carrying
out the investigation. When the Deputy Inspector General
expressed his unwillingness to carry out the investigation,
the Division Bench opined that some other special officer
would have to be appointed. Whereafter the matter came to
the Supreme Court. In the facts of that case, Supreme
Court found that there was no adequate material on record
for the learned Single Judge to appoint a special officer.
Police had already commenced investigation. Supreme
Court held that investigation is a matter for the police
under the scheme of CrPC. Interference by the High Court
into police investigation was not approved. Therefore,
Supreme Court set aside the order of the High Court
appointing special officer reposing considerable faith in the
State police. Supreme Court had observed that the police
authorities would take the investigation as a challenge and
justify their stand that they were competent to investigate
and that there was no necessity of the CBI being called in.
Mr. Dave points out that even in this case, the Chief
Minister had made a statement on the floor of the
Assembly even when the investigations were ongoing, that
the incident appeared to be a case of suicide and not
murder. Even in such a case, Supreme Court did not
approve taking over of investigation from the State police.
Besides, as held by the Supreme Court in Arnab Goswami v.
Union of India22, no transfer of investigation can be ordered
merely because a party has levelled some allegations
against the local police.
26.6. Insofar the present case is concerned, Mr. Dave
submits that there are senior officers in the SIT. No
allegations have been made against them. In the
circumstances, no case was made out for handing over of
investigation to CBI. Learned Single Judge had fallen into
serious error in directing so. State police should not have
been divested of its legitimate power to investigate the
cognizable offence. Learned Single Judge failed to exercise
his discretion based on sound judicial principles.
26.7. Mr. Dave has also placed before the Court a recent
decision of the Supreme Court in State of Jharkhand v. Shiv
Shankar Sharma23. He submits that allegations made in that
case against the Chief Minister were very vague and
(2020) 14 SCC 12
2022 SCC OnLine SC 1541
generalised. Those were not at all substantiated by
anything worthy to be called an evidence. Bald allegations
of corruption and siphoning of money by shell companies
were made without substantiating the allegations in any
manner whatsoever. The shell companies were not even
made parties to the writ petition. In the facts of that case,
Supreme Court held that it was not proper for the High
Court to entertain such public interest litigation (PIL)
directing CBI investigation based on mere allegations.
Accordingly, order of the High Court was set aside. He
submits that present case is also similar to the one in Shiv
Shankar Sharma (supra).
26.8. A great deal of emphasis has been laid by Mr. Dave
on non-issuing of notice to the Hon'ble Chief Minister of
Telangana though allegations of mala fides were made
against him. Placing reliance on the decisions of the
Supreme Court in State of Punjab v. Chaman Lal Goyal24 and
Nisha Priya Bhatia v. Union of India25, he submits that mere
charge of mala fides, that too, in a vague manner is not
(1995) 2 SCC 570
(2020) 13 SCC 56
adequate. Nothing has been stated in the writ affidavit as
to which of the officers in SIT is ill-disposed towards the
writ petitioners and in what manner. In the absence of any
clear allegation and in the absence of impleading such a
person so as to enable him to answer the charge against
him, charges of mala fides cannot be sustained. Such
allegations of mala fides cannot be taken forward. That
apart, he submits that as has been held by the Supreme
Court in Sheonandan Paswan v. State of Bihar26, a criminal
prosecution, if otherwise justifiable and based upon
adequate evidence does not become vitiated on account of
mala fides or political vendetta.
26.9. Placing reliance on the decision of the Supreme Court
in Lalita Kumari v. Government of Uttar Pradesh27, he submits
that registration of F.I.R. is mandatory under Section 154
of CrPC if the information discloses commission of
cognizable offence. No preliminary enquiry is necessary or
permissible in such a situation. If F.I.R. is not registered,
action is to be taken against erring police officers. Scope of
(1987) 1 SCC 288
(2014) 2 SCC 1
preliminary enquiry is not to verify the necessity or
otherwise of the information received but only to ascertain
whether the information reveals commission of any
cognizable offence.
26.10. After referring to the pleadings in the writ affidavit
and the counter affidavit and also reiterating his earlier
submissions based on the Supreme Court decision in
Mohinder Singh Gill (supra) as to the duty of the court to
uphold the rule of law, he submits that findings and
conclusions of the learned Single Judge are a bundle of
contradictions. Those are required to be set aside.
26.11. Explaining the rationale for filing a separate writ
appeal against the decision of the learned Single Judge
dismissing the writ petition filed by BJP as being not
maintainable, Mr. Dave submits that earlier BJP had filed
writ appeal against the decision of the learned Single Judge
withdrawing the order for deferment of investigation.
Division Bench had held that SIT constituted by the State
should investigate the crime, but SIT would report to the
learned Single Judge and not to any other authority. This
decision was accepted by BJP in as much as they did not
file SLP before the Supreme Court. SLP was filed by
respondent Nos.1, 2 and 3 before the Supreme Court.
Therefore, the order of the Division Bench qua BJP has
attained finality. Since BJP had sought for investigation by
SIT and that having been granted by the Division Bench,
writ petition filed by BJP should have been disposed of with
suitable observations and directions, instead learned Single
Judge dismissed the writ petition as being not
maintainable. This distinction, he submits, is subtle but
significant. It is for this reason that State has filed appeal
even against dismissal of the writ petition filed by BJP.
27. Mr. Gandra Mohan Rao, learned counsel for the de
facto complainant i.e., respondent No.6 has referred to
Rules 8 and 10 of the High Court Writ Rules and submits
that notice to the respondent is mandatory. He has referred
to ground Nos.19 and 20 in writ appeal No.42 of 2023 in
this regard. He has also placed reliance on a Calcutta High
Court decision in DGP v. Gopal Kumar Agarwal28 and submits
that learned Single Judge did not exercise any criminal
2020 SCC OnLine Cal 755
jurisdiction. Thus the writ appeals are maintainable. In
any view of the matter, transfer of investigation to another
agency, in this case to CBI, is not to be done in a routine
and mechanical manner. It is only in rarest of the rare case
that there should be transfer of investigation. Therefore,
finding fault with the approach of the learned Single Judge,
he submits that the same needs to be corrected in appeal.
27.1. In similar circumstances, in Gopal Kumar Agarwal
(supra), Calcutta High Court has held that writ appeals are
maintainable and not barred by Clause 15 of the Letters
Patent. Calcutta High Court had examined the decision of
the Supreme Court in Ram Kishan Fauji (supra) but noticed
that order of the learned Single Judge had neither resulted
in initiation of criminal proceedings nor quashing of
criminal proceedings. Present appeals stand on similar
footing as in Gopal Kumar Agarwal (supra).
28. Submissions made by learned counsel for the parties
have received the due consideration of the Court.
Mr. Dushyant Dave, learned Senior Counsel for the
appellants in writ appeal No.37 of 2023 has filed written
submissions after conclusion of the arguments. Similarly,
Mr. V.Ram Mohan Reddy, learned counsel representing
respondent No.1 in writ appeal No.43 of 2023 has
submitted written arguments. The written submissions and
arguments have been duly considered.
Analysis:
29. At the outset, we may first deal with the preliminary
objection raised by Mr. D.V.Sitharam Murthy, learned
Senior Counsel representing respondent Nos.1, 2 and 3 to
the effect that the writ appeals filed being intra-court
appeals under Clause 15 of the Letters Patent are not
maintainable in as much as substance of the judgment and
order of the learned Single Judge out of which the appeals
arise pertain to criminal jurisdiction. It is contended that
subject matter of the writ petitions and the direction of the
learned Single Judge relate to criminal jurisdiction. Against
such an order of the learned Single Judge, no intra-court
appeal would lie. This is the preliminary objection raised by
respondent Nos.1, 2 and 3.
30. Letters Patent for the High Court of Judicature for the
Presidency of Madras dated 28.12.1865 is applicable to the
High Court for the State of Telangana at Hyderabad.
Clause 15 of the aforesaid Letters Patent deals with appeal
from the courts of original jurisdiction to the High Court in
its appellate jurisdiction. Clause 15 being relevant, the
same is extracted as under:
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 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 to Section 108 of the
Government of India Act made (on or before 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 or
Successors in Our or Their Privy Council as hereinafter
provided.
30.1. From a perusal of the above, what Clause 15 provides
for is that an appeal shall lie to the High Court from a
judgment of one judge of the said High Court or one judge
of any Division Court. However, no such appeal shall lie if
the judgment is passed in the exercise of appellate
jurisdiction in respect of decree or order impugned in the
exercise of appellate jurisdiction by a Court subject to
superintendence of the said High Court; no appeal shall lie
against an order made in the exercise of revisional
jurisdiction; no such appeal shall lie against an order
passed or made in the exercise of the power of
superintendence under the provisions of the Government of
India Act, 1935; or if an order is made in the exercise of
criminal jurisdiction of one Judge of the said High Court.
31. In Umaji Keshao Meshram (supra), the question which
fell for determination of the Supreme Court was whether an
appeal lies under Clause 15 of the Letters Patent of the
Bombay High Court to a Division Bench of two judges of
that High Court from the judgment of the Single Judge of
that High Court in a petition filed under Article 226 or 227
of the Constitution of India. Supreme Court noted that
Letters Patent of the Calcutta, Bombay and Madras High
Courts are mutatis mutandis in the same terms with minor
variations mostly as a result of amendments subsequently
made. Supreme Court analysed Clause 15 of the Letters
Patent and thereafter held as follows:-
9. When analysed and broken up into its
competent parts clause 15 in its finally amended and
operative form reads as follows:
An appeal shall lie to the High Court of Judicature
at Bombay--
(1) from a judgment
(2) of one Judge of the High Court
(3) pursuant to Section 108 of the Government of
India Act of 1915
(4) not being--
(a) 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 High Court,
(b) an order made in the exercise of revisional
jurisdiction,
(c) 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 of 1915, or
(d) a sentence or order passed or made in the
exercise of criminal jurisdiction.
31.1. In that case, having regard to the question before the
Supreme Court the deliberation was confined to the
distinction between Articles 226 and 227 of the
Constitution of India and maintainability of an intra-court
appeal against the judgment of a learned Single Judge
passed under Article 227 of the Constitution of India. It
was in that context, Supreme Court observed that under
Article 226, High Courts have power to issue directions,
orders and writs to any person or authority including any
government but under Article 227, every High Court has
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. On the other hand, the power of superintendence
conferred upon every High Court by Article 227 is the
supervisory jurisdiction intended to ensure that
subordinate courts and tribunals act within the limits of
their authority and according to law. The two processes are
not the same. It is well settled that a proceeding under
Article 226 of the Constitution of India is an original
proceeding and when it concerns civil rights, it is an
original civil proceeding. Therefore, Supreme Court held
that where a petition is filed under Article 226 of the
Constitution of India and is according to the rules of a
particular High Court heard by a learned Single Judge, an
intra-court appeal will lie from that judgment if such a
right of appeal is provided in the Charter of that High
Court, whether such Charter be Letters Patent or a statute.
Clause 15 of the Letters Patent of the Bombay High Court
gives in such a case a right of intra-court appeal and
therefore, the decision of a learned Single Judge of that
High Court given in a petition under Article 226 of the
Constitution of India would be appealable to a Division
Bench of that High Court. However, a proceeding under
Article 227 of the Constitution is not an original
proceeding. After due analysis, Supreme Court concluded
that an intra-court appeal does not lie against the
judgment of a learned Single Judge of the Bombay High
Court given in a petition under Article 227 of the
Constitution of India by reason of such appeal being
expressly barred by Clause 15 of the Letters Patent.
Therefore, such an intra-court appeal would not be
maintainable.
32. Before proceeding further, it would be apposite to
briefly dilate on the contours of a civil proceeding under
Article 226 of the Constitution of India as the same is
necessary to be understood to make a contra-distinction to
what is termed as a criminal proceeding under Article 226
of the Constitution.
33. In S.A.L.Narayan Row v. Ishwarlal Bhagwandas29, Bombay
High Court had decided a challenge made to an order
passed by the Commissioner of Income Tax under Section
32-A of the Indian Income Tax Act, 1922. Bombay High
Court quashed the aforesaid order. Against that, revenue
preferred an appeal before the Supreme Court on certificate
granted by the High Court. At the appellate stage, assessee
raised an objection that the appeal was not maintainable
because the High Court had no power to certify a proposed
appeal against an order in a proceeding under Article 226
of the Constitution of India in as much as the proceeding
before the High Court was not a "civil proceedings" within
the meaning of Article 133 of the Constitution of India.
After adverting to Article 133 of the Constitution, which
deals with appellate jurisdiction of the Supreme Court in
appeals from High Courts in regard to civil matters,
Supreme Court delved into the meaning of the expression
"civil proceeding" as appearing in the aforesaid article. It
was in that context, Supreme Court opined that there is no
ground for restricting the expression "civil proceeding" only
AIR 1965 SC 1818
to those proceedings which arise out of civil suits or
proceedings which are tried as civil suits nor is there any
rational basis for excluding from its purview proceedings
instituted and tried in the High Court in exercise of its
jurisdiction under Article 226 of the Constitution of India,
where the aggrieved party seeks relief against infringement
of civil rights by authorities purporting to act in exercise of
powers conferred on them by revenue statutes. Therefore,
the preliminary objection raised by the assessee was
rejected.
34. A Division Bench of the Gujarat High Court in Sanjeev
Rajendrabhai Bhatt (supra) examined maintainability of
Letters Patent appeals before it. Two questions were
framed. Firstly, whether an order passed by the learned
Single Judge can be said to have been made in the exercise
of extraordinary powers under Article 226 of the
Constitution of India or in the exercise of supervisory
jurisdiction under Article 227 of the Constitution of India?
Second question was whether the order passed by the
learned Single Judge can be said to have been passed in
the exercise of criminal jurisdiction within the meaning of
Clause 15 of the Letters Patent.
34.1. A brief recital of the relevant facts is necessary.
Sanjeev Rajendrabhai Bhatt was serving as a District
Superintendent of Police at Palanpur at the relevant time.
One Sumersingh Rajpurohit was initially arrested on
03.05.1996 under the Narcotic Drugs and Psychotropic
Substances Act, 1985. Investigation was carried out
thereafter. However, in the identification parade,
Sumersingh Rajpurohit could not be identified by the
witnesses. Therefore, police submitted a report under
Section 169 of the Code of Criminal Procedure, 1973 before
the Special Court at Palanpur for release of Sumersingh
Rajpurohit, who was released on bail by the Additional
Sessions Judge, Palanpur, whereafter he was finally
discharged. Sumersingh Rajpurohit filed a complaint before
the competent Chief Judicial Magistrate against Sanjeev
Rajendrabhai Bhatt in which a direction was issued for
registration of offence and for investigation by an officer not
below the rank of Director General of Police. When Sanjeev
Rajendrabhai Bhatt filed a revision application before the
Additional Sessions Judge, an order was passed
maintaining the direction of the Chief Judicial Magistrate
except that portion which stated that investigation be
carried out by an officer not below the rank of Director
General of Police. It was thereafter that F.I.R. was
registered under various sections of the Indian Penal Code,
1860 (IPC) read with certain sections of the Narcotic Drugs
and Psychotropic Substances Act, 1985. Since Sanjeev
Rajendrabhai Bhatt apprehended arrest, he approached
the Gujarat High Court by filing Special Criminal
Application seeking a writ of mandamus or prohibition
restraining the investigating officer from carrying on any
further investigation, besides High Court was called upon
to quash and set aside the order of the Chief Judicial
Magistrate as well as the subsequent F.I.R. Though
initially, a learned Single Judge of the Gujarat High Court
had issued a direction not to arrest the petitioner Sanjeev
Rajendrabhai Bhatt, subsequently the Special Criminal
Application was dismissed on the ground of lack of
territorial jurisdiction as it was stated that the cause of
action arose in the State of Rajasthan. It was from this
order that Letters Patent appeal was preferred before the
Division Bench. After adverting to various legal provisions
and judicial pronouncements, the Division Bench of the
Gujarat High Court held that it was not necessary to
express final opinion on the question as to whether the
petition filed before the learned Single Judge can be said to
be under Article 226 or Article 227 of the Constitution of
India, as the Division Bench was of the opinion that even
on other grounds, the Letters Patent appeal was not
maintainable. It was thereafter that the Division Bench of
the Gujarat High Court proceeded to deal with the second
question as to whether the order passed by the learned
Single Judge could be said to be an order passed in the
exercise of "criminal jurisdiction" as referred to in Clause
15 of the Letters Patent. Division Bench distinguished the
earlier Full Bench decision of the Gujarat High Court in
Patel Kashiram Lavjibhai v. Narottamdas Bechardas30. It was
noted that reference was made to the Full Bench on the
question as to whether an appeal against the decision of a
(1978) 19 GLR 1047 (FB)
learned Single Judge of the Gujarat High Court under
Article 226 of the Constitution of India was barred under
Clause 15 of the Letters Patent because the decision of the
learned Single Judge was rendered in the exercise of
revisional jurisdiction or it was otherwise barred? It was in
that context, the Full Bench had answered the reference by
holding that the appeal would lie under Clause 15 of the
Letters Patent against a decision of a learned Single Judge
in the exercise of jurisdiction of the High Court under
Article 226 of the Constitution of India. In that context, it
was opined that decision of the learned Single Judge could
not be said to be given in the exercise of revisional
jurisdiction of the High Court. After analysing the Full
Bench decision, the Division Bench observed that the Full
Bench did not hold that a Letters Patent appeal would be
maintainable even if an order was passed by a learned
Single Judge in exercise of "criminal jurisdiction". Decision
of the Full Bench was silent as regards maintainability of
an appeal against the order passed by a learned Single
Judge in exercise of "criminal jurisdiction". Distinguishing
between civil proceedings and criminal proceedings in the
context of Article 226 of the Constitution of India, Division
Bench of the Gujarat High Court held that a criminal
proceeding is ordinarily one in which, if carried out to its
conclusion, it may result in the imposition of sentences
such as death, imprisonment, fine or forfeiture of the
property. Therefore, Division Bench opined that the said
proceedings dealt with by it were criminal proceedings in
as much as if the proceedings were carried out to its
conclusion those might result in imprisonment, fine etc. It
was thereafter held as follows:
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 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.
34.2. Thus, the Division Bench of the Gujarat High Court
held that order of the learned Single Judge was passed in
exercise of criminal jurisdiction. A proceeding under Article
226 of the Constitution of India arising from an order
passed or made by a Court in exercise or purported
exercise of power under the CrPC would still be a "criminal
proceeding" within the meaning of Clause 15 of the Letters
Patent. As Clause 15 of the Letters Patent expressly bars
an appeal against an order passed by a learned Single
Judge of the High Court in exercise of criminal jurisdiction,
Letters Patent appeals against such an order of a learned
Single Judge would not be maintainable and those are
liable to be dismissed.
35. A Full Bench of the Andhra Pradesh High Court in
Gangaram Kandaram (supra) was considering a question as to
whether an appeal under Clause 15 of the Letters Patent of
the High Court would lie against an order of a learned
Single Judge interfering with an ongoing investigation
under CrPC. In other words, the question was whether a
proceeding for quashing of investigation in a criminal case
under Article 226 of the Constitution of India is a civil
proceeding and judgment delivered therein would be a
judgment in a civil proceeding in exercise of original
jurisdiction of the High Court for the purposes of appeal
under Clause 15 of the Letters Patent. Full Bench of the
Andhra Pradesh High Court held as follows:
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 a 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 extra-ordinary
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 Criminal Procedure Code or against the
proceedings under Contempt of Court, no appeal will
lie under Clause 15 of Letters of Patent, but against
the judgments quashing the FIR 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 criminal jurisdiction. Therefore,
we hold that an appeal lies under Clause 15 of Letters
Patent.
16. The learned counsel for the appellant relied
upon a judgment of Madras High Court in Re. S.
Govindaswamy Nathan (AIR 1955 Madras 121). That
case arose out of contempt proceedings in respect of a
criminal sessions jurisdiction of the High Court but
not against an order passed under Art. 226 of
Constitution of India, and therefore, the said
judgment has no application to the facts of the
present case.
17. We accordingly answer the second question
that an appeal under clause 15 of Letters Patent of the
Court lies against the judgment in such a case.
35.1. After analysing Clause 15 of the Letters Patent, the
Full Bench observed that exercise of power under Article
226 of the Constitution of India by issuing a writ quashing
F.I.R. was not in exercise of criminal jurisdiction. Though
against an order under Section 482 CrPC or against
proceedings under the Contempt of Courts Act, 1971, no
appeal would lie under Clause 15 of the Letters Patent but
against a judgment quashing F.I.R. in exercise of the
original jurisdiction of the High Court under Article 226 of
the Constitution of India, writ appeal would lie under
Clause 15 of the 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 criminal
jurisdiction. Therefore, the Full Bench of Andhra Pradesh
High Court held that an appeal would lie against such an
order of the learned Single Judge under Clause 15 of the
Letters Patent.
36. This question was also considered by a Full Bench of
the Delhi High Court in C.S.Agarwal (supra). C.S.Agarwal
had filed the writ petition before the Delhi High Court
under Article 226 of the Constitution of India read with
Section 482 of CrPC for quashing of FIR lodged against him
under various sections of IPC. However, the writ petition
was dismissed. Against that order, he filed a Letters Patent
appeal before the Division Bench. Respondents took a
preliminary objection as to maintainability of the Letters
Patent appeal contending that judgment of the learned
Single Judge was rendered in exercise of criminal
jurisdiction. Therefore, Letters Patent appeal against such
a judgment would not be maintainable. Division Bench
after hearing the matter, referred the same to the Full
Bench on the following question:
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 FIR
would amount to invoking 'original jurisdiction' or
these proceedings are to be treated as invoking
'criminal jurisdiction'?
36.1. Full Bench heard the submissions made and
considered Clause 10 of the Letters Patent constituting the
High Court of Judicature at Lahore which is applicable to
the High Court of Delhi. We may mention at this stage that
Clause 10 of the Letters Patent of the Lahore High Court as
made applicable to the Delhi High Court is pari materia to
Clause 15 of the Letters Patent of Madras High Court made
applicable to the High Court for the State of Telangana at
Hyderabad. After adverting to Clause 10 of the aforesaid
Letters Patent, Full Bench noted as follows:
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
36.2. In the above backdrop, Full Bench examined 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". Thereafter, Full Bench
held as follows:
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 v. Ishwarlal
Bhagwandas [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.
36.3. Full Bench of the Delhi High Court also considered
the Full Bench decision of the Andhra Pradesh High Court
in Gangaram Kandaram (supra) as well as the decision of the
Division Bench of the Gujarat High Court in Sanjeev
Rajendrabhai Bhatt (supra). Agreeing with the view taken by
the Division Bench of the Gujarat High Court in Sanjeev
Rajendrabhai Bhatt (supra), Full Bench of the Delhi High
Court expressed its inability to subscribe to the view taken
by the Full Bench of the Andhra Pradesh High Court,
whereafter it was held as follows:
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.
36.4. Finally, Full Bench of the Delhi High Court opined
that learned Single Judge was exercising criminal
jurisdiction while dealing with the writ petition of
C.S.Agarwal filed under Article 226 of the Constitution of
India. Consequently, the Letters Patent appeal was held to
be barred and not maintainable; the same was accordingly
dismissed.
37. All the above three decisions i.e., Division Bench
decision of the Gujarat High Court in Sanjeev Rajendrabhai
Bhatt (supra), Full Bench decision of the Andhra Pradesh
High Court in Gangaram Kandaram (supra) and Full Bench
decision of the Delhi High Court in C.S.Agarwal (supra) were
examined by the Supreme Court in Ram Kishan Fauji
(supra).
38. In Ram Kishan Fauji (supra), Chief Secretary to the
Government of Haryana had made a reference to the
Lokayukta of Haryana under Section 8(1) of the Haryana
Lokayukta Act, 2002 to enquire into certain allegations.
Lokayukta, Haryana after issuing public notice and after
carrying out enquiry, recommended registration of FIR for
offences punishable under the provisions of the Prevention
of Corruption Act, 1988 and for investigation by a senior
competent officer of impeccable integrity. It was at this
stage, Ram Kishan Fauji filed a writ petition before the
High Court for quashing said order of Lokayukta. Learned
Single Judge quashed the FIR on the grounds and reasons
mentioned in the order (Ram Kishan Fauji v. State of Haryana
((2015 SCC On Line P&H 5058)). This order came to be
assailed before the Division Bench. Division Bench
condoned the delay in filing the appeal and also stayed
operation of the judgment passed by the learned Single
Judge. Though Ram Kishan Fauji filed an application for
vacation of the interim stay, the same was declined by the
Division Bench. Subsequently, while making the interim
stay absolute after admitting the Letters Patent appeal, the
Division Bench directed the Director General of Police,
Haryana to constitute a fresh Special Investigation Team to
ensure absolute objectivity in the ongoing investigation
comprising three senior IPS officers not belonging to the
State of Haryana. Questioning the sustainability of the
order passed by the Division Bench, Ram Kishan Fauji
moved the Supreme Court.
38.1. Singular contention before the Supreme Court was
that the Letters Patent appeal preferred before the Division
Bench was not maintainable in as much as learned Single
Judge had exercised criminal jurisdiction. Supreme Court
considered various decisions and examined the meaning of
the expression "civil proceeding" in contra-distinction to
"criminal proceeding". It was held as follows:
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.
38.2. Supreme Court held that to determine the
maintainability of the Letters Patent appeal from an order
of the learned Single Judge, the determining factor is the
real nature of the order passed by the learned Single
Judge; neither mentioning in the cause title of the
application nor granting ancillary order by the learned
Single Judge would be relevant. In each case, the Division
Bench must consider the substance of the judgement
under appeal to ascertain whether the learned Single
Judge has mainly or principally exercised jurisdiction
under Article 226 of the Constitution of India or under
Article 227 of the Constitution of India. 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 perspective in
the constitutional context.
38.3. Insofar exercising of criminal jurisdiction under
Article 226 of the Constitution of India is concerned,
Supreme Court was of the view that if the proceeding,
nature and relief sought for pertains to anything connected
with criminal jurisdiction, an intra-court appeal would not
lie as the same is not provided under Clause 10 of the
Letters Patent. Posing the question as to whether learned
Single Judge had exercised civil jurisdiction or criminal
jurisdiction, Supreme Court referred to the decision of the
Division Bench of the Gujarat High Court in Sanjeev
Rajendrabhai Bhatt (supra) as well as to the Full Bench
decision of the Delhi High Court in C.S.Agarwal (supra) and
re-produced the following opinion of the Full Bench of the
Delhi High Court with approval:
19. ... 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.
38.4. After thorough consideration of the above three
decisions, Supreme Court held as follows:
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 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]. 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 [Lal Kamlendra Pratap
Singh v. State of U.P., (2009) 4 SCC 437 : (2009) 2
SCC (Cri) 330] and Hema Mishra [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.
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
[Gangaram Kandaram v. Sunder Chikha Amin, 2000
SCC OnLine AP 119 : (2000) 2 An LT 448] by the Full
Bench of the High Court of Andhra Pradesh is
incorrect.
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.
39. The aforesaid decision of the Supreme Court in Ram
Kishan Fauji (supra) has been followed by the Punjab and
Haryana High Court in Jalaluddin v. State of Haryana31. In
that case, petitioner had sought for a direction to entrust
investigation of pending F.I.R.No.90 dated 23.06.2017
registered before Faridabad Police Station to an
independent agency like CBI. When learned Single Judge
dismissed the writ petition, petitioner filed intra-court
appeal. Following the law laid down by the Supreme Court
in Ram Kishan Fauji (supra), a Division Bench of the Punjab
and Haryana High Court observed that maintainability of
an intra-court appeal will depend on the Bench
adjudicating the lis as to how it understands and
appreciates the order passed by the learned Single Judge;
there cannot be any strait jacket formula. Thereafter, it has
been held as follows:
19. If the facts of the case in hand are examined in
the light of prayer made in the writ petition keeping in
view the enunciation of law by Hon'ble the Supreme
Court in Ram Kishan Fauji's case (supra), in our
opinion, the order passed by the learned Single Judge
was in exercise of criminal jurisdiction. Undisputedly,
2018 SCC OnLine P&H 828
in the case in hand, FIR had already been registered
and the trial is in progress. The appellant claimed that
his son was murdered. Prayer was for transfer of
investigation to an independent agency, like Central
Bureau of Investigation. Investigation of a crime would
fall within the criminal jurisdiction. Either the prayer
made by the appellant is allowed and after further
investigation by an independent agency, fresh/
supplementary challan is presented or the trial
continues in pursuance to the challan already
presented, the result would be either acquittal or
conviction of the accused, hence, the subject-matter is
nothing else but criminal in nature.
20. The contention raised by learned counsel for
the appellant that writ petition has been filed alleging
violation of Article 21 of the Constitution of India may
not come to the rescue of the appellant to hold that
intra-court appeal is maintainable. Violation of
fundamental rights is the ground raised for
maintaining a petition for claiming relief from the
court, but what is required to be seen is the substance
of the case.
21. For the reasons mentioned above, in our view,
the present intra-court appeal is not maintainable,
hence, the same is dismissed.
39.1. Thus, Punjab and Haryana High Court has held that
order passed by the learned Single Judge declining to
transfer investigation to CBI was passed in exercise of
criminal jurisdiction. Though handing over of pending
investigation to an independent agency would not amount
to discontinuance of investigation, however it would result
either in acquittal or conviction of the accused. Hence, the
subject matter has been held to be criminal in nature. As
to the contention advanced that the writ petition was filed
alleging violation of Article 21 of the Constitution of India,
Division Bench of the Punjab and Haryana High Court has
held that violation of fundamental rights is a ground raised
for maintaining a petition for claiming relief from the court
but what is required to be seen is the substance of the
case. In that view of the matter, Punjab and Haryana High
Court held that the intra-court appeal was not
maintainable and accordingly dismissed the same.
40. Similar view has been taken by the Madras High
Court in V.Kumar v. Superintendent of Police, CBI32. That was
a case where learned Single Judge in a petition under
Article 226 of the Constitution of India had declined the
prayer of the petitioner to transfer investigation to CBI.
Against such an order, intra-court appeal was filed.
Likewise, a Division Bench of this Court in Kushi Chand
MANU/TN/6728/2021
Vadde v. S.Sreedhar Rao (W.A.No.257 of 2022, decided on
12.04.2022) has also taken a similar view.
41. However, there is one decision which has taken a
contrary view and that is the decision of the Calcutta High
Court in Gopal Kumar Agarwal (supra). In that case, appeal
was filed against the judgment and order of the learned
Single Judge directing investigation of Raniganj P.S. Case
No.372 of 2017 by the CBI in place of Crime Investigation
Department (CID), State of West Bengal. This order came to
be challenged in an intra-court appeal. A Division Bench of
the Calcutta High Court posed the question to itself as to
whether or not learned Single Judge had passed the
impugned order in exercise of criminal jurisdiction.
Distinguishing the decision of the Supreme Court in Ram
Kishan Fauji (supra), Division Bench of the Calcutta High
Court in the facts of that case held that order of the
learned Single Judge neither resulted in initiation of a
criminal proceeding nor in quashing of a criminal
proceeding. Adverting to the averments in the writ petition,
it was mentioned that the petitioner did not pray for
quashing of criminal proceedings. All that was sought for
was transfer of investigation to an independent agency.
Learned Single Judge was of the view that the investigation
was not being conducted in a proper manner. Accordingly,
direction was issued to handover the investigation to CBI.
Division Bench of the Calcutta High Court opined that this
did not amount to exercise of criminal jurisdiction by the
learned Single Judge. Learned Single Judge had exercised
supervisory jurisdiction under Article 226 of the
Constitution of India in directing change of the
investigating agency. Criminal investigation was already in
progress. Investigation was not initiated as a result of the
order of the learned Single Judge.
42. We are afraid, Division Bench of the Calcutta High
Court had followed the same line of reasoning as was
adopted by the Full Bench of the Andhra Pradesh High
Court in Gangaram Kandaram (supra) which has been
specifically held by the Supreme Court as not laying down
the correct law. At the cost of repetition, as held by the
Supreme Court in Ram Kishan Fauji (supra) it needs to be
mentioned that what is required to be examined is the
nature of the proceedings; the substance of the case and
the nature and character of the order passed by the
learned Single Judge which is under appeal. Conception of
criminal jurisdiction as used in Clause 15 of the Letters
Patent is not to be construed in a narrow sense. What is
relevant is the field in respect of which the jurisdiction is
exercised by the learned Single Judge. For that the
averments made in the writ petition, the relief sought in the
writ petition and the decision of the learned Single Judge
would have to be assessed in a cumulative and conjoint
manner. This is the litmus test.
43. Calcutta High Court in Gopal Kumar Agarwal (supra)
did not consider applicability of the above litmus test.
Therefore, we are unable to persuade ourselves to adopt
the view expressed by the Calcutta High Court in Gopal
Kumar Agarwal (supra) which according to us runs contrary
to the ratio laid down by the Supreme Court in Ram Kishan
Fauji (supra).
44. Having surveyed the legal provisions, the decisions
cited at the bar and based on the above analysis, let us
now examine the facts of the present case.
45. Writ petition No.40733 of 2022 was filed by
respondent Nos.1, 2 and 3 seeking a writ of mandamus
declaring the action of the State police in undertaking
investigation in F.I.R.No.455 of 2022 registered before
Moinabad Police Station as biased and unfair; violating
their fundamental rights under Articles 14 and 21 of the
Constitution of India. They, therefore, sought for a
direction to transfer the investigation to the CBI or to
constitute a Special Investigation Team (SIT) under the
supervision of a sitting Judge to ensure free and fair
investigation.
46. In the writ affidavit filed in support of the above
prayer, it was alleged that the complaint lodged by the de
facto complainant against respondent Nos.1, 2 and 3 were
false and politically motivated. Investigation by the State
police would not be done in a fair manner. Right of the
accused (respondent Nos.1, 2 and 3) to a fair and unbiased
investigation has been compromised. State Government is
directly involved in F.I.R.No.455 of 2022.
47. Learned Single Judge after a thorough analysis held
that the FIR disclosed commission of a cognizable offence;
therefore, investigation is bound to be done in accordance
with law. However, materials gathered during the
investigation in the form of CDs/pen drives were circulated
by the Hon'ble Chief Minister to different constitutional
functionaries. Crucial documents relating to investigation
have been put out in the public domain. According to the
learned Single Judge, learned Senior Counsel appearing for
the State could not explain regarding leakage of
investigation materials. Thereafter, learned Single Judge
noted that the electronic spy gadgets were seized on
26/27.10.2022 containing the video recordings which are
in the nature of trap proceedings. These materials are
crucial and critical components of investigation. Such
materials should not have been handed over to any third
party. This was a serious lapse committed by the
investigation. To cover up such lapse, SIT was constituted.
Thereafter, learned Single Judge came to the conclusion
that before investigation could proceed to an advanced
stage, persons holding high office such as Hon'ble Chief
Minister of Telangana had condemned the accused publicly
by branding them as conspirators and guilty. In the
circumstances, learned Single Judge opined that
investigation was not being done in an unbiased and fair
manner. When an authority as high as the Hon'ble Chief
Minister had openly circulated videos containing
investigation material, branding the accused as
conspirators and members of an organised gang, a case for
transfer of investigation was made out. It was thereafter
that learned Single Judge passed the following order:
44.1. For the aforesaid reasons, W.P. Nos.40733,
43144 and 43339 of 2022 are allowed. G.O.Ms. No.63
Home (Legal) Department dated 09.11.2022
appointing SIT is quashed. The investigation in
FIR.No.455 of 2022 shall be forthwith transferred to
the Central Bureau of Investigation, who shall proceed
with de novo investigation taking into consideration
the report lodged by Mr. Pilot Rohit Reddy in
FIR.No.455 of 2022, observation panchanama dated
26.10.2022 and mediator's panchanama dated
27.10.2022. The remaining investigation done by
Assistant Commissioner of Police, Rajendranagar
Division; the Station House Officer, Moinabad Police
Station, and the SIT are also quashed.
48. Thus, learned Single Judge set aside G.O.Ms.No.63
dated 09.11.2022 appointing SIT while directing transfer of
investigation in F.I.R.No.455 of 2022 to CBI; further
quashed investigation carried out by the State police till
then, directing that CBI shall now proceed with de novo
investigation in F.I.R.No.455 of 2022.
Conclusion:
49. From a careful and conjoint analysis of the averments
in the writ affidavit, relief sought for in the writ petition
and the order passed by the learned Single Judge, we have
no hesitation in our mind that the order passed by the
learned Single Judge was in the context of a criminal
subject matter and certainly in the exercise of "criminal
jurisdiction" in the broader sense as explained by the
Supreme Court in Ram Kishan Fauji (supra).
50. Learned Single Judge has held that rights of
respondent Nos.1 to 3 being accused in Crime No.455 of
2022 were being compromised by leakage of investigation
materials and open branding of them as culprits even
before charge sheet is filed. Further, learned Single Judge
has quashed the investigation carried out by the police in
FIR No.455 of 2022 while directing CBI to conduct de novo
investigation. This is nothing but a decision rendered in the
realm of criminal field; thus exercising criminal jurisdiction
within the meaning of Clause 15 of the Letters Patent.
Applying the litmus test, it is evident from a combined
examination of the substance of the case and the nature
and character of the order passed by the learned Single
Judge that the judgment under appeal is clearly within
criminal law domain.
51. In our considered opinion, there can be no two views
in this regard. Therefore, the intra-court appeals
challenging the judgment and order of the learned Single
Judge dated 26.12.2022 would be clearly barred by Clause
15 of the Letters Patent and would not be maintainable.
52. Since we have arrived at the aforesaid conclusion, it
is not necessary for us to delve into the merit of the
challenge or to the other aspects as argued by learned
counsel for the parties.
53. Following the above, all the writ appeals are hereby
dismissed as being not maintainable. However, there shall
be no order as to costs.
Miscellaneous petitions, pending if any, shall stand
closed.
______________________________________
UJJAL BHUYAN, CJ
______________________________________
N.TUKARAMJI, J
After pronouncement of the judgment,
Mr. B.S.Prasad, learned Advocate General for the State of
Telangana prayed for staying the judgment for some time to
enable the appellants to avail further remedy.
Having considered the matter in detail and having
pronounced the judgment, we are not inclined to stay the
same.
Accordingly, prayer made is rejected.
______________________________________
UJJAL BHUYAN, CJ
______________________________________
N.TUKARAMJI, J
06.02.2023
Note: LR copy be marked.
(By order)
Pln
