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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  4288  OF 2017 (arising out of S.L.P. (Civil) No. 15362 of 2016)

Ram Kishan Fauji ... Appellant

Versus

State of Haryana and Ors. ... Respondents

J U D G M E N T

Dipak Misra, J.

Leave granted.

2. The Chief Secretary to the Government of Haryana in

exercise  of  power  under  Section  8(1)  of  the  Haryana

Lokayukta Act, 2002 (for brevity, “the Act”) made a reference

to the Lokayukta, Haryana to enquire into the allegations,

namely, (i) whether the allegations of bribery levelled in the

alleged Compact Disc (CD) are correct, (ii) whether  Change

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of  Land  Use  (CLU)/Licence  was  granted  in  pursuance  of

these allegations, and (iii) whether by such act, any illegality

was  committed.  The  said  reference  was  registered  as

Complaint No. 773 of 2013 in the office of the Lokayukta,

Haryana.

3. Acting on the reference made by the Chief Secretary,

the office of the Lokayukta issued a public notice requesting

the public in general to send any such material including

Video Compact  Disc (VCD) connected with the  subject  in

issue.  Apart from the public notice, communications were

sent to various departments of the Government, television

channels and newspapers for furnishing all materials to find

out the allegations of  corruption against the persons who

have been named in the complaint.

4. As  the  facts  would unfold,  the  Lokayukta,  Haryana,

issued notice to the appellant in exercise of  power under

Section 14 of the Act to offer his explanation. In pursuance

of the said communication, the appellant filed a reply and

the  Lokayukta  granted  him  time  to  place  on  record  his

evidence in the form of an affidavit. When the matter stood

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thus,  on  16.01.2014,  two  persons  allegedly  conducted  a

sting  operation  and  filed  their  affidavits  before  the

Lokayukta.  The  appellant,  in  the  meantime,  got  the  CD

examined from M/s Truth Labs, Bangalore and also got the

forensic  examination  of  the  audio  and  a  report  was

submitted on 20.01.2014 opining, as averred, that the audio

and video recording in the earlier CD was not continuous

and the recording did not appear to be authentic.  Be that

as it may,  on weighing the material brought on record, the

Lokayukta  thought  it  appropriate  to  recommend  for

registration  of  FIR  for  offences  punishable  under  the

provisions  of  the  Prevention  of  Corruption  Act,  1988  (for

short,  “the  1988  Act”)  and  investigation  by  a  senior

competent officer of impeccable integrity.

5. At  this  stage,  it  is  necessary  to  mention  that  the

appellant had preferred Civil  Writ Petition No. 4554/2014

(O&M) praying for issue of a writ in the nature of certiorari

for quashing of the impugned orders dated 20.01.2014 and

11.02.2014 passed by the respondent No. 2 whereby it had

recommended registration of a case against the petitioner

therein under the provisions of the 1988 Act and further for

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issue  of  a  writ  or  direction  in  the  nature  of  mandamus

restraining  the  respondent  No.  1  from  initiating  any

consequential  proceeding  on  the  basis  of  the  impugned

orders.  The grounds asserted for the assail were that there

was no verification of the genuinity of the alleged VCD and

that  the  action taken was  perverse,  illegal,  arbitrary  and

violative of the provisions of the Act.

6. The High Court, vide order dated 14.03.2014, directed

the respondent State to inquire into the authenticity of the

CD in question and file a status report in the Court and

further  directed  that  the  State  shall  be  bound  by  the

judgment of Lalita Kumari v. Govt. of Uttar Pradesh and

others1  with  reference  to  the  preliminary  enquiry  to  be

conducted in respect of corruption cases. A reply was filed

before the High Court on 03.12.2014 and FIR No. 10/2014

was registered at P.S. State Vigilance Bureau, Panchkula on

04.12.2014  under  Sections  7  and  8  of  the  1988  Act.

Certain other documents were brought on record before the

learned Single Judge of the High Court and eventually. vide

1

(2014) 2 SCC 1

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judgment  dated  27.02.2015,  the  learned  Single  Judge

referred to various aspects such as the facts that led to the

complaint  before  the  Lokayukta,  the  findings  of  the

Lokayukta,  the  initial  endeavour  by  the  High  Court  to

gather  details  of  the  authenticity  of  the  CD,  the

contradictory report submitted by the writ petitioner from

private  laboratory,  he  fresh  report  from Central  Forensic

Science  Laboratory  (CFSL)  to  quell  the  contradiction,  the

law  relating  to  the  admissibility  of  evidence  of  electronic

record  and,  thereafter,  it  recorded  its  conclusion  on  the

issues  pertaining  to  the  authenticity  of  the  CD,  credible

information for bribery, direction for filing of complaint by

the Lokayukta, the report of the Lokayukta, the imputations

made  against  the  petitioner,  prima  facie proof,  the

jurisdiction  of  the  Lokayukta  to  cause  an  inquiry  and,

ultimately, came to hold as follows:-

“I  have  undertaken  this  examination  only  to conclude all the issues which were urged before me.  The observations as regards the untenability invoking  the  provision  of  Section  9  does  not obtain relevance to us, for, we have already found the report to be seriously flawed in every respect both as regards the competence of the Lokayukta to  order  a  registration  of  a  complaint  after  he found the reference in the negative that there was

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no case  made for  allegations of  corruption and that also the evidence of CD which was taken to be the basis for a further investigation itself could not be relied on, for, it lacks the basic element of authenticity.”

7. Being  of  this  view,  it  proceeded  to  deal  with  the

registration of the complaint on the recommendation of the

Lokayukta and, in that regard, opined that:-

“The learned counsel for the State would submit that the investigation has proceeded subsequent to the impugned order passed.  A FIR has been registered on 04.12.2014, that is,  after the writ petition  was  filed,  when  the  issue  of  the authenticity of the CD was very much open for consideration.  Indeed, I had stayed the further proceedings  when  I  passed  an  order  on 19.12.2014 directing the CD to be sent along with the memory chip to the CFSL, Hyderabad.  If the investigation is purported to be taken by lodging a FIR, consequent on the directions given by the order  which  is  now  quashed,  it  shall  also  be quashed.”

8. While so stating, the learned Single Judge ruled that if

there  is  any  other  material  or  information  of  corrupt

practice  against  the  writ  petitioner,  the  State  shall  be  at

liberty to carry out the investigation as per law.  

9. The aforesaid  order  came to  be  assailed  in  LPA No.

1426  of  2015.  The  Division  Bench,  by  order  dated

15.12.2015, without issuing notice to the present appellant,

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condoned  the  delay  of  85  days  in  filing  the  appeal  and

stayed the operation of the judgment passed by the learned

Single Judge.  The appellant filed CM No. 3930/LPA of 2015

for  vacation  of  the  said  interim  order  and  the  Division

Bench  declined  to  vacate  the  interim  order  and  made  it

absolute on 12.05.2016 by the impugned order and after

admitting the LPA, passed the following order:-

“However,  with  a  view  to  ensure  absolute objectivity in the ongoing investigation and to rule out  any  possibility  of  alleged  prejudice  against respondent No.1, the Director General of Police, Haryana  is  directed  to  re-constitute  a  Special Investigation  Team comprising  three  senior  IPS officers who originally do not belong to the State of Haryana.

Liberty  is  granted  to  the  parties  to  seek out-of-turn  hearing  of  the  appeal  after  the investigation is over.”

10. Questioning the sustainability of the order passed by

the  Division  Bench,  Dr.  Rajeev  Dhawan,  learned  senior

counsel,  has  raised  a  singular  contention  that  the  LPA

preferred before the Division Bench was not maintainable

inasmuch  as  the  learned  Single  Judge  had  exercised

criminal  jurisdiction.  He  has  placed  reliance  on  certain

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authorities to which we shall refer to at the relevant place in

the course of our deliberations.   

11. Mr.  Sanjay  Kumar Visen,  learned counsel  appearing

for the respondent State, resisting the aforesaid submission,

would contend that the writ petition was registered as a civil

writ petition for the purpose of issuing a writ of certiorari

and the exercise of jurisdiction by the High Court is civil in

nature  and,  therefore,  the  jurisdiction  exercised  is  civil

jurisdiction that invites interference in intra-court appeal.

That apart, contends Mr. Visen that the exercise of power of

the learned Single Judge is strictly under Article 226 of the

Constitution  of  India  and,  hence,  an  intra-court  appeal

deserved  to  be  entertained  by  the  Division  Bench.   It  is

further  submitted  by  him  that  the  Lokayukta  is  a

quasi-judicial  body  and  when,  at  its  instance,  action  is

taken for inquiry, it has to come within the ambit and scope

of  civil  jurisdiction and not  criminal  jurisdiction.  Learned

counsel  for  the  State  has  stressed  on  the  status  of

Lokayukta and for that matter has commended us to the

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authority  in  Justice  Chandrashekaraiah  (Retd.)  v.

Janekere C. Krishna & others2.   

12. First,  we  intend  to  advert  to  the  position  of  the

Lokayukta  or  Upa-Lokayukta  as  has  been  dealt  with  in

Justice  Chandrashekaraiah  (supra).  In  the  said  case,

Radhakrishnan,  J.  ruled  that  Lokayukta  and

Upa-Lokayukta act as quasi-judicial  authorities,  but their

functions  are  investigative  in  nature.   Scrutinising  the

provisions enshrined under  Sections 9,  10 and 11 of  the

Karnataka Lokayukta Act,  1984,  he  opined that  the  said

authorities, while investigating the matters, are discharging

quasi-judicial  functions,  but  the  nature  of  functions  is

investigative.  The learned Judge, while deliberating on the

consequence of the report, ruled thus:-

“The  Governor  of  the  State,  acting  in  his discretion, if accepts the report of the Lokayukta against the Chief Minister, then he has to resign from  the  post.  So  also,  if  the  Chief  Minister accepts such a report against a Minister, then he has  to  resign from the  post.  The Lokayukta  or Upa-Lokayukta,  however,  has no jurisdiction or power to direct the Governor or the Chief Minister to implement his report or direct resignation from

2

 (2013) 3 SCC 117

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the  office  they  hold,  which  depends  upon  the question  whether  the  Governor  or  the  Chief Minister, as the case may be, accepts the report or  not.  But  when  the  Lokayukta  or Upa-Lokayukta,  if  after  the  investigation,  is satisfied that the public servant has committed any criminal offence, prosecution can be initiated, for which prior sanction of any authority required under any law for such prosecution, shall also be deemed to have been granted.”

13. In  the  concurring  opinion,  Lokur,  J.  posed  the

question  whether  the  Lokayukta  is  a  quasi-judicial

authority.  The argument on behalf of the State was that

Upa-Lokayukta  is  essentially  required  to  investigate

complaints and enquire into the grievances brought before it

and,  therefore,  he  may  be  exercising  some  quasi-judicial

functions,  but  that  does  not  make  him  a  quasi-judicial

authority.  The said submission was advanced to highlight

the  proposition  that  when  the  Upa-Lokayukta  is  not  a

quasi-judicial authority, the opinion of the Chief Justice of

the High Court of Karnataka would not have primacy in the

appointment and consultation process.  After adverting to

the  powers  and functions  of  Upa-Lokayukta,  it  has  been

held that:-

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“105. Section  14  of  the  Act  enables  the Upa-Lokayukta to prosecute a public servant and if such an action is taken, sanction to prosecute the public servant shall be deemed to have been granted by the appropriate authority.”

xxxxx xxxxx

“107. The broad spectrum of functions, powers, duties and responsibilities of the Upa-Lokayukta, as  statutorily  prescribed,  clearly  bring  out  that not only does he perform quasi-judicial functions, as  contrasted  with  purely  administrative  or executive functions, but that the Upa-Lokayukta is more than an investigator or an enquiry officer. At the same time, notwithstanding his status, he is  not  placed  on  the  pedestal  of  a  judicial authority  rendering  a  binding  decision.  He  is placed somewhere in between an investigator and a judicial authority, having the elements of both. For want of a better expression, the office of an Upa-Lokayukta  can only  be  described  as  a  sui generis quasi-judicial authority.”

“108.  ……The  final  decision  rendered  by  the Upa-Lokayukta, called a report, may not bear the stamp of a judicial decision, as would that of a court  or,  to  a  lesser  extent,  a  tribunal,  but  in formulating the report, he is required to consider the  point  of  view  of  the  person  complained against and ensure that the investigation reaches its  logical  conclusion,  one  way  or  the  other, without  any  interference  and  without  any  fear. Notwithstanding  this,  the  report  of  the Upa-Lokayukta does not determine the rights of the  complainant  or  the  person  complained against.  Consequently,  the  Upa-Lokayukta  is neither a court nor a tribunal. Therefore, in my opinion,  the  Upa-Lokayukta  can  best  be

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described  as  a  sui  generis  quasi-judicial authority.”

14. After  so  stating,  the  learned  Judge  referred  to  the

opinions of Kania, CJI and Das, J. in  Associated Cement

Companies  Ltd.  v.  P.N.  Sharma3 and  arrived  at  the

following conclusion:-

“As  mentioned  above,  an  Upa-Lokayukta  does function as an adjudicating authority but the Act places  him  short  of  a  judicial  authority.  He  is much more “judicial” than an investigator or an inquisitorial  authority  largely  exercising administrative or executive functions and powers. Under the circumstances, taking an overall view of the provisions of the Act and the law laid down, my  conclusion  is  that  the  Upa-Lokayukta  is  a quasi-judicial  authority  or  in  any  event  an authority  exercising  functions,  powers,  duties and responsibilities conferred by the Act as a sui generis quasi-judicial authority.

15. The aforesaid pronouncement was rendered when the

appointment  of  Upa-Lokayukta  was  challenged  on  the

ground that one of the constitutional functionaries was not

consulted.  Emphasis was on the nature of the post held by

Lokayukta or Upa-Lokayukta.  

3

 AIR 1965 SC 1595

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16. The  aforesaid  paragraphs  would  clearly  show  that

neither  the  Lokayukta  nor  Upa-Lokayukta  has  any

jurisdiction  or  authority  to  direct  implementation  of  his

report  by  the  constitutional  functionary  but  when  after

investigation,  it  is  found  that  the  public  servant  has

committed any criminal offence, prosecution can be initiated

for which prior sanction of any authority is required under

any law for such prosecution and the same shall be deemed

to have been granted.  

17. Relying on the aforesaid judgment, it is submitted by

Mr.  Visen  that  when  the  posts  held  by  Lokayukta  and

Upa-Lokayukta  are  quasi-judicial  in  nature,  their

functioning has to be given the same character and once

they are clothed with such functioning and action taken by

them is subject to challenge before the High Court under

Article 226 of the Constitution seeking a writ of certiorari for

quashment of the same, in that event, the adjudication has

to be regarded as civil in nature.  Elaborating further, he

would submit that in the instant case, a civil writ was filed

challenging  the  opinion  and  recommendation  of  the

Lokayukta  and,  therefore,  the  jurisdiction  sought  to  be

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exercised is under Article 226 of the Constitution of India

and  resultantly,  the  order  passed  by  the  learned  Single

Judge is amenable to correction in intra-court appeal.   

18. The  maze  needs  to  be  immediately  cleared.   In  the

instant case, we are really not concerned with the nature of

the post held by Lokayukta or Upa-Lokayukta.  We are also

not  concerned  how  the  recommendation  of  the  said

authorities  is  to  be  challenged  and  what  will  be  the

procedure therefor.  As has been held by this Court, neither

the  Lokayukta  nor  Upa-Lokayukta  can  direct

implementation of his report, but it  investigates and after

investigation,  if  it  is  found  that  a  public  servant  has

committed a criminal offence, prosecution can be initiated.   

19. Having  discussed  as  aforesaid,  at  this  juncture,

reference to Clause 10 of the Letters Patent (as applicable to

erstwhile  Punjab  &  Lahore  High  Courts)  is  absolutely

apposite.  It reads as follows:-

“10. Appeals to the High Court from Judges of the Court –  And we do further  ordain that  an appeal  shall  lie  to  the  said  High  Court  of Judicature  at  Lahore  from  the  judgment  (not being  a  judgment  passed  in  the  exercise  of

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appellate  jurisdiction  in  respect  of  a  decree  or order  made  in  the  exercise  of  appellate jurisdiction  by  a  Court  subject  to  the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction,  and not  being  a  sentence  or  order passed  or  made  in  exercise  of  the  power  of superintendence under the provisions of Section 107 of  the  Government  of  India  Act,  or  in  the exercise of criminal jurisdiction)  of one Judge of the said High Court or one Judge of any Division Court,  pursuant  to  Section  108  of  the Government  of  India  Act,  and  that notwithstanding  anything  hereinbefore  provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one  Judge  of  any  Division  Court,  pursuant  to Section  108  of  the   Government  of  India  Act, made on or after the first day of  February, one thousand nine hundred and twenty-nine in the exercise of  appellate jurisdiction in respect of  a decree or order made in the exercise of appellate jurisdiction  by  a  Court  subject  to  the superintendence of the said High Court where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the right of appeal  from  other  judgments  of  Judges  of  the said High Court or of such Division Court shall be to Us, Our Heirs or Successors in Our or Their Privy Council, as hereinafter provided.”

[emphasis added]

20. On  a  plain  reading  of  the  aforesaid  clause  of  the

Letters Patent, it is manifest that no appeal lies against the

order  passed by  the  Single  Judge  in  exercise  of  criminal

jurisdiction.  Thus, the question that is required to be posed

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is whether the learned Single Judge, in the obtaining factual

matrix has exercised criminal jurisdiction or not.

21. Presently,  we  may  fruitfully  refer  to  Clauses  15,  17

and 18 that deal with criminal jurisdiction.  Clause 15 that

provides for ordinary criminal jurisdiction of the High Court

reads as under:-

“15. And  We  do  further  ordain  that  the  High Court of Judicature at Lahore shall have ordinary original criminal jurisdiction in respect of all such persons within the Provinces of Punjab and Delhi as  the  Chief  Court  of  the  Punjab  had  such criminal jurisdiction over immediately before the publication of these presents.”  

22. Clauses  17  and  18,  being  pertinent,  are  extracted

below:-

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

18. And We do further ordain that there shall be no  appeal  to  the  High  Court  of  Judicature  at Lahore  from  any  sentence  or  order  passed  or made  by  the  Courts  of  original  criminal

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jurisdiction which may be constituted by one or more Judges of the said High Court.  But it shall be at the discretion of any such court to reserve any point or points of law for the opinion of the said High Court.”

[underlining is ours]

23. It  is  worthy  to  mention  here  that  Clause  10  of  the

Letters Patent establishing the Lahore High Court (which is

applicable to the Hon’ble Punjab & Haryana High Court) is

in  pari materia to  Clause 15 of  the Letters  Patent  of  the

Chartered High Courts.  The four-Judge Bench, in  South

Asia  Industries  Private  Ltd  v.  S.B.  Sarup Singh and

others4, speaking through Subba Rao, J. (as His Lordship

then  was)  referred  to  Clauses  10  and  11  of  the  Letters

Patent and, in that context, ruled:-

“  A plain reading of the said clause indicates that except  in  the  3  cases  excluded  an  appeal  lay against  the  judgment  of  a  single  Judge  of  the High Court to the High Court in exercise of any other  jurisdiction.  As  the  clause  then  stood,  it would  appear  that  an  appeal  lay  against  the judgment  of  a  single  Judge  of  the  High  Court made in exercise of second appellate jurisdiction without any limitation thereon.  The effect of the amendment made in 1928, so far as is relevant to the present enquiry, is the exclusion of the right

4

(1965) 2 SCR 756

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of  appeal  from a  judgment  passed  by  a  single Judge sitting in second appeal unless the Judge who passed the judgment grants a certificate that the case is a fit one for appeal.”

[Emphasis added]

The Court in the said case after referring to number of

authorities also observed:-

“A  statute  may  give  a  right  of  appeal  from an order of a tribunal or a Court to the High Court without any limitation thereon.  The appeal to the High Court will be regulated by the practice and procedure obtaining in the High Court. Under the rules made by the High Court in exercise of the powers  conferred  on  it  under  s.  108  of  the Government of India Act, 1915, an appeal under s. 39 of the Act will be heard by a single Judge. Any judgment made by the single Judge in the said  appeal  will,  under  cl.  10  of  the  Letters Patent, be subject to an appeal to that Court.  If the order made by a single Judge is a judgment and if the appropriate Legislature has, expressely or by necessary implication, not taken away the right of appeal, the conclusion is inevitable that an appeal shall lie from the judgment of a single Judge under cl.  10 of the Letters Patent to the High Court.   It  follows that,  if  the Act had not taken away the Letters Patent appeal, an appeal shall certainly lie from the judgment of the single Judge of the High Court.”   

[underlining is ours]

24. From  the  aforesaid  authority,  two  aspects  are

absolutely  clear.  First,  where  an  appeal  is  not  excluded

against the judgment of the High Court of a Single Judge,

Page 19

19

an appeal would lie to the Division Bench and second, if the

appropriate  Legislature  has  expressly  or  by  necessary

implication not  taken away a  right  of  appeal,  the  appeal

shall  lie  from  the  Single  Judge  under  Clause  10  of  the

Letters Patent to the High Court.  

25. In  this  context,  reference  to  the  Constitution  Bench

judgment  in  Jamshed  N.  Guzdar  v.  State  of

Maharashtra and others5 would be apposite.  In the said

case, the controversy arose pertaining to the constitutional

validity of the Bombay City Civil Court and Bombay Court of

Small Causes (Enhancement of Pecuniary Jurisdiction and

Amendment) Act,  1986 (Maharashtra Act 15 of 1987) (for

short “the 1987 Act”), Maharashtra High Court (Hearing of

Writ  Petitions  by  Division Bench and Abolition  of  Letters

Patent Appeals) Act, 1986 (Maharashtra Act 17 of 1986) (for

short  “the  1986  Act”)  and  Madhya  Pradesh  Uchcha

Nyayalaya  (Letters  Patent  Appeals  Samapti)  Adhiniyam,

1981 (for short ‘the Adhiniyam’) by which State Legislatures

had abolished the intra-court appeals provided under the

5

(2005) 2 SCC 591

Page 20

20

Letters Patent.  It is apt to note here that the Full Bench of

the Madhya Pradesh High Court, by majority opinion, had

struck down the legislation abolishing Letters Patent Appeal

as invalid.  

26. The principal question that emerged for consideration

related  to  the  legislative  competence  of  the  State

Legislatures in passing the above named enactments.  The

Constitution Bench held thus:-  

“73.  … Entry 46 of List III relates to jurisdiction and power of all courts except the Supreme Court i.e. including the City Civil Court and High Court with respect to any matter in List III including the Civil Procedure Code in Entry 13. The contention that  merely  constituting  and  organising  High Courts  without  conferring  jurisdiction  to  deal with  the  matters  on  them  does  not  serve  any purpose,  cannot  be  accepted.  The  Constitution itself has conferred jurisdiction on High Courts, for  instance,  under  Articles  226 and  227.  This apart,  under  various  enactments,  both  Central and  State,  certain  jurisdiction  is  conferred  on High Courts.  The  High Courts  have  power  and jurisdiction  to  deal  with  such  matters  as  are conferred by the Constitution and other statutes. This power of “administration of justice” has been included  in  the  Concurrent  List  after  3-1-1977 possibly to enable both the Centre as well as the States  to  confer  jurisdiction  on  High  Courts under various enactments passed by the Centre or the State to meet the needs of the respective States  in  relation  to  specific  subjects.  Thus, viewed from any angle, it is not possible to agree

Page 21

21

that the 1987 Act and the 1986 Act are beyond the competence of the State Legislature.

74. We are, therefore, of the view that there is no merit in the contention that the State Legislature did  not  have  competence  to  enact  the  two legislations,  the  constitutionality  of  which  has been challenged before us.”   

And again:-

“88.  The  argument  that  the  1986  Act  or  the Adhiniyam encroaches upon the legislative power of Parliament, cannot be accepted, in the view we have taken that  it  was competent  for  the State Legislatures  to  pass  law  relating  to  general jurisdiction of the High Courts dealing with the topic “administration of justice” under Entry 11-A of  List  III.  Assuming that  incidentally  the 1986 Act  and the Adhiniyam touch upon the  Letters Patent, the 1986 Act and the Adhiniyam cannot be declared either as unconstitutional or invalid applying doctrine of  pith and substance having due regard to the discussion already made above while  dealing with the legislative  competence of the State in passing the 1987 Act.”

 27.  On  the  aforesaid  analysis,  the  Court  set  aside  the

judgment of the Full Bench of the High Court of Madhya

Pradesh  and  dismissed  the  writ  petitions  filed  by  others

challenging the 1986 Act and the 1987 Act.  Thus, it  has

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22

been clearly held that the State Legislature has competence

to amend the Letters Patent.   

28. The purpose of referring to this judgment is that till a

competent legislature takes away the power of the Letters

Patent,  the  same  can  be  exercised  by  the  High  Court.

However,  while  exercising  the  power  under  the  Letters

Patent,  it  is  imperative  to  see  what  is  the  nature  of

jurisdiction that has actually been provided in the Letters

Patent.   The exercise  of  jurisdiction has to be within the

ambit and scope of the authority enshrined in the provision

meant for intra-court appeal.

29. At  this  stage,  we  may  refer  to  some  of  the

pronouncements  commended to  us by  the  learned senior

counsel  for  the  appellant.   In  Commissioner  of

Income-Tax,  Bombay  &  another  v.  Ishwarlal

Bhagwandas  and  others6,  the  High  Court  of  Bombay

under  Article  226  of  the  Constitution  had  quashed  the

orders  passed  by  the  Income  Tax  Officer  and  the

Commissioner of Income Tax.  Against the orders passed by

6

(1966) 1 SCR 190

Page 23

23

the High Court, the Commissioner of Income Tax and the

Income Tax Officer prayed for grant of certificate to the High

Court and after grant of such certificate, appealed to this

Court. At the commencement of hearing of the appeal, the

learned  counsel  for  the  assessee  raised  a  preliminary

objection  that  the  appeal  filed  by  the  revenue  was

incompetent because the High Court had no power under

Article 133 of the Constitution to certify a proposed appeal

against an order in a proceeding initiated by a petition for

the  issue of  a  writ  under  Article  226 of  the  Constitution

inasmuch as the proceeding before the High Court was not

“a civil proceeding” within the meaning of Article 133.

30. The Court referred to Article 133 of the Constitution

and  took  note  of  the  submission  that  the  jurisdiction

exercised  by  the  High  Court  as  regards  the  grant  of

certificate pertains to judgment, decree or final order of a

High Court in a civil proceeding and that “civil proceeding”

only means a proceeding in the nature of or triable as a civil

suit and a petition for the issue of a high prerogative writ by

the High Court was not such a proceeding.  Additionally, it

was urged that even if  the proceeding for  issue of  a writ

Page 24

24

under Article 226 of the Constitution may, in certain cases,

be treated as a civil proceeding, it cannot be so treated when

the party aggrieved seeks relief  against the levy of  tax or

revenue claimed to be due to the State.  The Court, delving

into the nature of civil proceedings, noted that:-

“The expression "civil  proceeding" is not defined in the Constitution,  nor  in  the General  Clauses Act.  The expression in our  judgment  covers  all proceedings  in  which  a  party  asserts  the existence of a civil right conferred by the civil law or  by  statute,  and  claims  relief  for  breach thereof.”

31. After  so  stating,  the  Court  elucidated  the  nature  of

criminal proceeding and, in that regard, ruled thus:-

“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. It also includes proceedings in which in the larger interest of the State, orders to prevent apprehended breach of the peace, orders to bind down  persons  who  are  a  danger  to  the maintenance of peace and order, or orders aimed at  preventing  vagrancy  are  contemplated  to  be passed.”  

32. Explicating  the  concept  further,  the  Court  opined

that:-

Page 25

25

“The  character  of  the  proceeding,  in  our judgment,  depends not  upon the  nature  of  the tribunal which is invested with authority to grant relief  but  upon the  nature  of  the  right  violated and the appropriate relief which may be claimed.”

33.  It further held that a civil proceeding is, therefore, one

in which a person seeks to enforce by appropriate relief the

alleged  infringement  of  his  civil  rights  against  another

person or the State, and which, if the claim is proved, would

result  in  the  declaration,  express  or  implied,  of  the  right

claimed  and  relief  such  as  payment  of  debt,  damages,

compensation, delivery of specific property, enforcement of

personal rights, determination of status, etc.   

34. 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

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26

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.   

35. In this regard, reference to  Umaji Keshao Meshram

& others  v. Radhikabai & another7  would be fruitful. In

the said case, the controversy arose 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 a Single Judge of that High Court in a

petition filed under Article 226 or 227 of the Constitution of

India.  The Court referred to the Letters Patent of Calcutta,

Bombay and Madras High Courts which are pari materia in

the same terms with minor variations that have occurred

due to amendments made subsequently.  The Court referred

to the provisions of the Government of India Act, the Indian

Independence Act, 1947 and the debates of the Constituent

Assembly and observed that the historical evidence shows

that our Constitution did not make a break with the past.  It

7

1986 (Supp.) SCC 401

Page 27

27

referred to some earlier authorities and, eventually, came to

hold that:-  

“92. The position which emerges from the above discussion is that under clause 15 of the Letters Patent  of  the  Chartered  High  Courts,  from the judgment  (within  the  meaning  of  that  term  as used in that clause) of a Single Judge of the High Court an appeal lies to a Division Bench of that High  Court  and  there  is  no  qualification  or limitation  as  to  the  nature  of  the  jurisdiction exercised by the Single Judge while passing his judgment,  provided an appeal  is  not  barred by any  statute  (for  example,  Section  100-A  of  the Code of Civil Procedure, 1908) and provided the conditions  laid  down  by  clause  15  itself  are fulfilled. The conditions prescribed by clause 15 in this behalf are: (1) that it must be a judgment pursuant  to  Section  108  of  the  Government  of India  Act  of  1915,  and  (2)  it  must  not  be  a judgment  falling  within  one  of  the  excluded categories set out in clause 15.”

  And again:-  

“100.  According  to  the  Full  Bench  even  were clause 15 to apply, an appeal would be barred by the  express  words  of  clause  15  because  the nature of the jurisdiction under Articles 226 and 227  is  the  same  inasmuch  as  it  consists  of granting  the  same  relief,  namely,  scrutiny  of records  and  control  of  subordinate  courts  and tribunals  and,  therefore,  the  exercise  of jurisdiction under these articles would be covered by  the  expression  “revisional  jurisdiction”  and “power  of  superintendence”.  We  are  afraid,  the Full  Bench  has  misunderstood  the  scope  and effect  of  the powers conferred by these articles. These two articles stand on an entirely different

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28

footing. As made abundantly clear in the earlier part of this judgment, their source and origin are different  and  the  models  upon  which  they  are patterned are also different. Under Article 226 the High  Courts  have  power  to  issue  directions, orders  and  writs  to  any  person  or  authority including  any  Government.  Under  Article  227 every High Court has power of superintendence over  all  courts  and  tribunals  throughout  the territory  in  relation  to  which  it  exercises jurisdiction. The power to issue writs is not the same  as  the  power  of  superintendence.  By  no stretch of imagination can a writ in the nature of habeas corpus or mandamus or quo warranto or prohibition  or  certiorari  be  equated  with  the power of superintendence. These are writs which are directed against persons, authorities and the State.  The  power  of  superintendence  conferred upon  every  High  Court  by  Article  227  is  a supervisory jurisdiction intended to ensure that subordinate courts and tribunals act within the limits of their authority and according to law (see State  of  Gujarat v.  Vakhatsinghji  Vajesinghji Vaghela8 and  Ahmedabad Mfg. & Calico Ptg. Co. Ltd.  v.  Ram  Tahel  Ramnand9).  The  orders, directions  and  writs  under  Article  226  are  not intended  for  this  purpose  and  the  power  of superintendence conferred upon the High Courts by  Article  227  is  in  addition  to  that  conferred upon the High Courts by Article 226. Though at the  first  blush  it  may  seem  that  a  writ  of certiorari or a writ of prohibition partakes of the nature of superintendence inasmuch as at times the  end  result  is  the  same,  the  nature  of  the power to issue these writs is  different from the

8

AIR 1968 SC 1481 9

(1973) 1 SCR 185

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29

supervisory  or  superintending  power  under Article 227. The powers conferred by Articles 226 and 227 are separate and distinct and operate in different fields. The fact that the same result can at times be achieved by two different processes does not mean that these two processes are the same.”   

36. In  the  ultimate  analysis,  the  two-Judge  Bench  held

that the petition filed by the appellant before the Nagpur

Bench  of  the  Bombay  High  Court  was  admittedly  under

Article 227 of the Constitution and under the rules of the

High  Court,  it  was  heard  by  a  Single  Judge  and  under

Clause  15  of  the  Letters  Patent  of  that  High  Court,  an

intra-court appeal against the decision of the learned Single

Judge was expressly barred.  

37. In  this  context,  a  reference  to  a  two-Judge  Bench

decision in Ashok K. Jha and others v. Garden Silk Mills

Limited and another10 would be profitable.  The question

that arose for consideration was whether an appeal under

Clause 15 of the Letters Patent of the High Court of Bombay

was maintainable from the judgment and order passed by

the learned Single Judge in a special civil application.  The

10

(2009) 10 SCC 584

Page 30

30

controversy had arisen from the dispute raised before the

Labour Court.  The matter travelled through the Industrial

Court in appeal which was challenged before the High Court

under  Articles  226 and 227 of  the  Constitution of  India.

While dealing with the issue of maintainability, the Court

referred to Umaji Keshao Meshram (supra),  Kishorilal v.

Sales Officer, District Land Development Bank11,  State

of  Madhya Pradesh and others  v.  Visan Kumar Shiv

Charan Lal12 and  Sushilabai  Laxminarayan Mudliyar

and  others  v.  Nihalchand  Waghajibhai  Shaha  and

others 13 and ultimately held that:-  

“35. In Visan Kumar Shiv Charan Lal (supra) this Court further held that the determining factor is the real nature of principal order passed by the Single  Judge  which  is  appealed  against  and neither  mentioning  in  the  cause-title  of  the application  of  both  the  articles  nor  granting  of ancillary  order  thereupon  by  the  Single  Judge would be relevant and in each case the Division Bench  must  consider  the  substance  of  the judgment under appeal to ascertain whether the

11

(2006) 7 SCC 496 12

(2008) 15 SCC 233  13

1993 Supp (1) SCC 11

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31

Single Judge has mainly or principally exercised his jurisdiction under Article 226 or Article 227 of the  Constitution.  In  Ramesh  Chandra  Sankla14 this Court held:

“47. In our judgment, the learned counsel for the  appellant  is  right  in  submitting  that nomenclature of the proceeding or reference to a particular article  of  the Constitution is not final  or  conclusive.  He  is  also  right  in submitting  that  an  observation  by  a  Single Judge as to how he had dealt with the matter is  also  not  decisive.  If  it  were  so,  a  petition strictly falling under Article 226 simpliciter can be disposed of by a Single Judge observing that he  is  exercising  power  of  superintendence under  Article  227  of  the  Constitution.  Can such statement by a Single Judge take away from  the  party  aggrieved  a  right  of  appeal against the judgment if otherwise the petition is under Article 226   of the Constitution and subject to an intra-court/letters patent appeal? The reply unquestionably is in the negative….”

 38. The  Court  in  the  said  case  accepted  the  decision

rendered in Ramesh Chandra Sankla (supra)  and opined

that  a  statement  by  a  learned  Single  Judge  that  he  has

exercised  power  under  Article  227  cannot  take  away  the

right  of  appeal  against  such  judgment  if  the  power  is

otherwise found to have been exercised under Article 226.

The vital factor for determination of the maintainability of

14

(2008) 14 SCC 58

Page 32

32

the intra-court appeal is the nature of jurisdiction invoked

by the party and the true nature of the order passed by the

learned Single Judge.

39. In Radhey Shyam and another v. Chhabi Nath and

others15,  the issue arose with regard to the correctness of

the  decision  in  Surya  Dev  Rai  v.  Ram Chander  Rai16

before  the  three-Judge  Bench.  The  three-Judge  Bench

referred  to  Naresh  Shridhar  Mirajkar  v.  State  of

Maharashtra17 wherein this Court came to the conclusion

that  “Certiorari  does  not  lie  to  quash  the  judgments  of

inferior  courts  of  civil  jurisdiction.”  It  adverted  to  the

authority in Surya Dev Rai (supra) copiously and weighed

it in the backdrop of other authorities and compared it with

the English law principles and ruled that:-  

“26.  The  Bench  in  Surya  Dev  Rai  (supra)  also observed  in  para  25  of  its  judgment  that distinction between Articles  226 and 227 stood almost  obliterated.  In  para  24  of  the  said

15

(2015) 5 SCC 423 16

(2003) 6 SCC 675 17

AIR 1967 SC 1

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judgment distinction in the two articles has been noted. In view thereof, observation that scope of Articles  226  and  227  was  obliterated  was  not correct  as  rightly  observed18 by  the  referring Bench in para 32 quoted above. We make it clear that though despite the curtailment of revisional jurisdiction under Section 115 CPC by Act 46 of 1999, jurisdiction of the High Court under Article 227  remains  unaffected,  it  has  been  wrongly assumed  in  certain  quarters  that  the  said jurisdiction has been expanded. Scope of Article 227  has  been  explained  in  several  decisions including  Waryam Singh v.  Amarnath19,  Ouseph Mathai v.  M.  Abdul  Khadir20,  Shalini  Shyam Shetty v.  Rajendra Shankar Patil21  and  Sameer Suresh Gupta v. Rahul Kumar Agarwal22.”  

40. The ultimate conclusion arrived at in the said case is

that:-  

“27.  … we are of the view that judicial orders of civil  courts  are  not  amenable  to  a  writ  of certiorari  under  Article  226.  We  are  also  in agreement with the view19 of the referring Bench that a writ of mandamus does not lie against a

18

(2009) 5 SCC 616 19

AIR 1954 SC 215 20

(2002) 1 SCC 319 21

(2010) 8 SCC 329 22

(2013) 9 SCC 374

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34

private person not discharging any public duty. Scope of Article 227 is different from Article 226.”

41. The Court clarified the position by adding that:-  

“28. We may also deal with the submission made on  behalf  of  the  respondent  that  the  view  in Surya Dev Rai  (supra) stands approved by larger Benches  in  Shail23,  Mahendra  Saree  Emporium (2)24 and  Salem Advocate Bar Assn. (2)25 and on that ground correctness of the said view cannot be  gone  into  by  this  Bench.  In  Shail  (supra), though reference  has  been made to  Surya Dev Rai (supra), the same is only for the purpose of scope of power under Article 227 as is clear from para  3  of  the  said  judgment.  There  is  no discussion  on  the  issue  of  maintainability  of  a petition  under  Article  226.  In  Mahendra  Saree Emporium (2) (supra), reference to Surya Dev Rai (supra) is made in para 9 of the judgment only for the  proposition  that  no  subordinate  legislation can whittle down the jurisdiction conferred by the Constitution.  Similarly,  in  Salem  Advocate  Bar Assn. (2)  (supra) in para 40, reference to  Surya Dev Rai (supra) is for the same purpose. We are, thus,  unable  to  accept  the  submission  of  the learned counsel for the respondent.”

42. In  the  ultimate  eventuate,  the  three-Judge  Bench

answered the reference as follows:-

23

(2004) 4 SCC 785 24

(2005) 1 SCC 481 25

(2005) 6 SCC 344

Page 35

35

“29.1.  Judicial  orders of  the civil  court  are  not amenable to writ jurisdiction under Article 226 of the Constitution. 29.2.  Jurisdiction  under  Article  227  is  distinct from jurisdiction under Article 226. 29.3. Contrary view in  Surya Dev Rai  (supra) is overruled.”

 43. Recently, in Jogendrasinhji Vijaysinghji v. State of

Gujarat and others26 the Court was dealing with a batch of

appeals  that  arose  from  the  High  Court  of  Gujarat  as

regards  the  maintainability  of  Letters  Patent  Appeal.  The

Court referred to the nine-Judge Bench decision in Naresh

Shridhar  Mirajkar (supra)  and  the  three-Judge  Bench

decision in Radhey Shyam (supra) and ruled that a judicial

order  passed by the  civil  court  can only  be  assailed and

scrutinised  under  Article  227  of  the  Constitution  and,

hence, no intra-court appeal is maintainable.  

44. As  the  controversy  related  to  further  two  aspects,

namely,  whether  the  nomenclature  of  article  is  sufficient

enough and further, whether a tribunal is a necessary party

to the litigation, the two-Judge Bench proceeded to answer

the  same.  In  that  context,  the  Court  referred  to  the

26

(2015) 9 SCC 1

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36

authorities  in  Lokmat  Newspapers  (P)  Ltd.  v.

Shankarprasad27,  Kishorilal (supra),  Ashok  K.  Jha

(supra) and Ramesh Chandra Sankla (supra) and opined

that maintainability of a letters patent appeal would depend

upon  the  pleadings  in  the  writ  petition,  the  nature  and

character of the order passed by the learned Single Judge,

the  type  of  directions  issued  regard  being  had  to  the

jurisdictional  perspectives in the constitutional  context.  It

further  observed  that  barring  the  civil  court,  from which

order as held by the three-Judge Bench in Radhey Shyam

(supra) that a writ petition can lie only under Article 227 of

the  Constitution,  orders from tribunals  cannot  always  be

regarded  for  all  purposes  to  be  under  Article  227 of  the

Constitution.  Whether  the  learned  Single  Judge  has

exercised the jurisdiction under Article 226 or under Article

227 or both, would depend upon various aspects.   There

can be orders passed by the learned Single Judge which can

be  construed  as  an  order  under  both  the  articles  in  a

composite  manner,  for  they  can  co-exist,  coincide  and

27

(1999) 6 SCC 275

Page 37

37

imbricate. It was reiterated that it would depend upon the

nature, contour and character of the order and it will be the

obligation of the Division Bench hearing the letters patent

appeal to discern and decide whether the order has been

passed  by  the  learned  Single  Judge  in  exercise  of

jurisdiction under Article 226 or 227 of the Constitution or

both.  The  two-Judge  Bench  further  clarified  that  the

Division Bench would also be required to scrutinise whether

the  facts  of  the  case  justify  the  assertions  made  in  the

petition to invoke the jurisdiction under both the articles

and the relief prayed on that foundation.  The  delineation

with  regard  to  necessary  party  not  being  relevant  in  the

present case, the said aspect need not be adverted to.  

45. We have referred to these decisions only to highlight

that it is beyond any shadow of doubt that the order of civil

court  can  only  be  challenged  under  Article  227  of  the

Constitution and from such challenge, no intra-court appeal

would lie and in other cases, it will depend upon the other

factors as have been enumerated therein.

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38

46. At this stage, it is extremely necessary to cull out the

conclusions  which  are  deducible  from  the  aforesaid

pronouncements.  They are:-

(a) An appeal shall lie from the judgment of a Single Judge

to a Division Bench of the High Court if  it is so permitted

within the ambit and sweep of the Letters Patent.

(b) The power conferred on the High Court by the Letters

Patent  can  be  abolished  or  curtailed  by  the  competent

legislature by bringing appropriate legislation.

(c) A writ petition which assails the order of a civil court in

the High Court has to be understood, in all circumstances,

to be a challenge under Article 227 of the Constitution and

determination by the High Court under the said Article and,

hence, no intra-court appeal is entertainable.

(d)  The tenability of intra-court appeal will depend upon the

Bench adjudicating the  lis as to how it  understands and

appreciates the order passed by the learned Single Judge.

There cannot be a straitjacket formula for the same.

47. In  the  case  at  hand,  learned  counsel  for  the

respondent  State  would  submit  that  when  a  writ  of

Page 39

39

certiorari is issued, it is a prerogative writ and, therefore, an

appeal would lie to the Division Bench. He has emphatically

commended  us  to  the  pronouncement  in  Hari  Vishnu

Kamath v.  Syed Ahmad Ishaque and others28.   In the

said case, the Court has referred to the earlier decision in

T.C. Basappa v. T. Nagappa29 and held that:-

“… ‘Certiorari’ will be issued for correcting errors of  jurisdiction,  as  when  an  inferior  Court  or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2) ‘Certiorari’ will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (3) The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that  the  Court  will  not  review  findings  of  fact reached by the inferior Court or Tribunal, even if they be erroneous. This is on the principle that a Court  which  has  jurisdiction  over  a subject-matter  has  jurisdiction  to  decide  wrong as well as right, and when the Legislature does not choose to confer a right of appeal against that decision,  it  would  be defeating its  purpose and policy,  if  a  superior  Court  were  to  re-hear  the case  on  the  evidence,  and  substitute  its  own findings in certiorari. These propositions -are well settled and are not in dispute.”  

28

AIR 1955 SC 233 29

AIR 1954 SC 440

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40

 48. It is propounded by Mr. Visen that a writ of certiorari

can be  issued on many a  ground and when the  learned

Single  Judge  has  issued  a  writ  of  the  present  nature  in

quashing  the  order  of  the  Upa-Lokayukta,  it  has  to  be

treated as an order under Article 226 of the Constitution of

India. That apart, he urged that the issue whether it would

be  under  Article  226  or  227  is  to  be  determined  by  the

Division Bench of the High Court.

49. The  aforesaid  argument  suffers  from a  fundamental

fallacy.   It  is  because  the  submission  is  founded on the

plinth of whether the writ jurisdiction has been exercised

under Article 226 or 227 of the Constitution.  It does not

take note of the nature of jurisdiction and the relief sought.

If  the  proceeding,  nature  and  relief  sought  pertain  to

anything  connected  with  criminal  jurisdiction,  intra-court

appeal would not lie as the same is not provided in Clause

10  of  the  Letters  Patent.   Needless  to  emphasise,  if  an

appeal in certain jurisdictions is not provided for, it cannot

be conceived of.   Therefore,  the reliance placed upon the

larger  Bench  authority  in  Hari  Vishnu  Kamath (supra)

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41

does not render any assistance to the argument advanced

by the learned counsel for the respondent-State.  

50. The crux of the present matter is whether the learned

Single Judge has exercised “civil  jurisdiction” or “criminal

jurisdiction”.   In  that  regard,  Mr.  Visen  has  strenuously

contended that the Lokayukta is a quasi-judicial authority

and the proceeding being quasi-judicial in nature, it cannot

be regarded as one relatable to criminal jurisdiction, but it

may  be  treated  as  a  different  kind  or  category  of  civil

proceeding. His argument is supported by the Full Bench

decision of the High Court of Andhra Pradesh in Gangaram

Kandaram v. Sunder Chikha Amin and others30. In the

said  case,  a  writ  petition  was  filed  for  issue of  a  writ  of

mandamus  to  declare  the  action  of  the  respondents  in

registering crimes under Sections 420 and 406 of the Indian

Penal Code against the writ petitioner in FIR Nos. 14/97,

137/97 and 77/97 as illegal and to quash the same. The

learned Single Judge had allowed the writ petition by order

dated 06.08.1997 and quashed the FIRs.  The order passed

30

2000 (2) ALT 448 (F.B.)

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43

enquiry as to the reliability or genuineness or otherwise of

the allegations made in the FIR or the complaint and that

the  extraordinary  or  inherent  powers  do  not  confer  an

arbitrary jurisdiction on the Court to act according to its

whim or  caprice.   The  Full  Bench,  after  referring  to  the

same,  adverted  to  the  authorities  in  Rashmi  Kumar  v.

Mahesh Kumar Bhada32  and Rajesh Bajaj v. State NCT

of  Delhi33,  deliberated  upon  the  maintainability  of  the

appeal and, in that regard, stated thus:-

“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

32

1997 (2) SCC 397, 1997 SCC (Crl.) 415 33

1999 (3) SCC 259, 1999 SCC (Crl.) 401

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44

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

[Emphasis added]

52. According  to  Mr.  Visen,  learned  counsel  for  the

respondent  State,  the  view  expressed  by  the  Andhra

Pradesh  High  Court  is  absolutely  defensible  in  law  and,

therefore,  the  appeal  being  maintainable,  the  order

impugned  in  the  present  appeal  does  not  warrant  any

interference.

53. Dr. Dhawan, learned senior counsel, has commended

us to two authorities – one by the Division Bench of Gujarat

High Court and the other by the Full Bench of High Court of

Delhi.  In  Sanjeev  Rajendrabhai  Bhatt  v.  State  of

Page 45

45

Gujarat  & others34,  two  appeals  being  Special  Criminal

Application Nos. 6 and 24 of 1998 arose out of a common

order  passed  by  the  learned  Single  Judge.  The  learned

Single  Judge,  by  the  impugned  order,  upheld  the

preliminary  objection  raised  on  behalf  of  the  State  of

Rajasthan that the High Court of Gujarat had no territorial

jurisdiction in the matter as the proceedings were initially

conducted in the  Court  of  Chief  Judicial  Magistrate,  Pali

situated in Rajasthan. The maintainability of the objections

on  the  ground  of  want  of  territorial  jurisdiction  was  the

subject  matter  of  appeal  before  the Division Bench.   The

Court posed two questions and the primary one pertained to

the  maintainability  of  Letters  Patent  Appeal.   For  the

aforesaid  purpose,  the  appellate  Bench  thought  it

appropriate to pose the following two questions:-

“First,  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  or  in  the  exercise  of supervisory jurisdiction under Article 227 of the Constitution.   Secondly,  whether  the  order passed by the learned single Judge can be said to have  been  passed  in  the  exercise  of  criminal

34

(2000) 1 Gujarat Law Reports 206

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46

jurisdiction within the meaning of Clause 15 of the Letters Patent.”  

54.  The  Division  Bench  referred  to  Umaji  Keshao

Meshram (supra),  adverted  to  the  decisions  in  Supreme

Court Bar Association v. Union of India and another35

and A.R. Antulay v. R.S. Nayak and another36 (as Article

21 was also raised as an issue) and came to hold that it

would  not  be  advisable  to  express  final  opinion  on  the

question whether the petitions filed by the petitioners can

be  said  to  be  under  Article  226  or  Article  227  of  the

Constitution.   Proceeding  on  the  other  score,  the  Court

analysed  the  various  provisions  of  the  CrPC,  namely,

Sections 109, 200, 202, sub-section (3) of Section 156 and

various  clauses  of  the  Letters  Patent,  distinguished  the

decision  in  State  of  Gujarat  v.  Jayantilal  Maganlal

Patel37  and distinguished the  same by  holding  that  the

35

1998 (4) SCC 409 36

AIR 1988 SC 1531 37

1995 (2) GLH 260

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49

56. Being of  this view, the Division Bench ruled that 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, accordingly, dismissed the same.

57. From the  aforesaid  analysis,  it  is  demonstrable  that

the  Gujarat  High  Court  has  opined  that  relying  on  the

authority of this Court in Ishwarlal Bhagwandas  (supra),

the  issue whether  the  proceedings  are  civil  or  not  would

depend  upon  the  nature  of  the  right  violated  and  the

appropriate relief which might be claimed and not upon the

nature  of  the  tribunal  which  has  been  invested  to  grant

relief.   The  Division  Bench  further  opined  that  even  if

cognizance  is  not  taken  in  respect  of  a  criminal  case,  it

would not take out the case from the purview of criminal

jurisdiction.  Thus, it has been held by the Division Bench

that when there is a proceeding under Article 226 of the

Constitution  arising  from  an  order  made  by  a  Court  in

exercise of power under the Code of Criminal Procedure, it

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50

would  be  a  criminal  proceeding  within  the  meaning  of

Letters Patent.   

58. The  Full  Bench  of  the  High  Court  of  Delhi  in  C.S.

Agarwal v. State & others39 was dealing with a situation

wherein  a  writ  petition  was  filed  before  the  High  Court

under  Article  226  of  the  Constitution  of  India  read  with

Section  482  of  Cr.P.C.  seeking  for  appropriate  writ  for

quashing of the FIR.  As the writ petition was dismissed by

the  learned  Single  Judge,  an  intra-court  appeal  was

preferred.  A  preliminary  objection  was  taken  by  the

respondents  as  regards  the  maintainability  of  the  LPA

contending that the judgment of the learned Single Judge

was  passed  in  exercise  of  criminal  jurisdiction  and  the

Letters Patent Appeal against such an order is  barred by

Clause 10 and Clause 18 of the Letters Patent constituting

the High Court of Judicature at Lahore, which is applicable

to the Judicature of High Court of Delhi.  The Full Bench

analysed Clause 10 of the Letters Patent and took note of

what has been prohibited for entertaining any intra-court

39

2011 (125) DRJ 241 (FB)

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51

appeal.  The Full Bench, analyzing various decisions, opined

thus:-

“…  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.”

59. After  so  stating,  the  Full  Bench  referred  to  the

Constitution  Bench  decision  in  Ishwarlal  Bhagwandas

(supra)  and distinguished  the  Full  Bench decision of  the

Andhra High Court in  Gangaram Kandaram (supra) and

noted the decision of  the Division Bench of  Gujarat High

Court in Sanjeev Rajendrabhai Bhat (supra) and came to

hold as follows:-

“32.  The  test,  thus,  is  whether  criminal proceedings are pending or not and the petition under Article 226 of the Constitution is preferred concerning  those  criminal  proceedings  which could result in conviction and order of sentence.

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52

33. When viewed from this angle, it is clear that if the FIR is not quashed, it  may lead to filing of Challan by the  investigating agency,  framing of charge and can result  in  conviction of  order  of sentence. Writ of  this nature filed under Article 226  of  the  Constitution.  Seeking  quashing  of such  an  FIR  would  therefore  be  “criminal proceedings”  and  while  dealing  with  such proceedings,  the  High  Court  exercises  its “criminal jurisdiction”.”

60. Being  of  this  view,  the  Full  Bench  opined  that  the

Letters Patent Appeal was not maintainable. In this regard,

learned  counsel  for  the  appellant  has  also  drawn  our

attention to the Division Bench judgment of the Delhi High

Court  in  Vipul  Gupta  v.  State  &  Ors40 wherein  the

Division Bench, placing reliance on the Full Bench decision,

has expressed the view that though the writ petitions were

not filed for quashing of FIR as in the case of the Full Bench

decision,  yet  the  learned  Single  Judge  was  exercising

criminal jurisdiction, for the Lieutenant Governor of Delhi

had agreed with the proposal not to press the application for

withdrawal of  the criminal  case under Section 321 of the

Cr.P.C. and allowed the trial court to proceed on merits. In

this factual backdrop, the Division Bench opined:-  

40

208 (2014) DLT 468 (DB)

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53

“…Even though the challenge in the writ petitions was  to  a  decision  of  Hon’ble  the  Lieutenant Governor but the said decision was relating to the prosecution already underway of  the  appellants and the direct effect of the dismissal of the writ petitions  is  of  continuation  of  the  prosecution which may result in imposition of sentences such as  death,  imprisonment,  fine  or  forfeiture  of property,  of  the appellants.  We are thus of  the view that this Court while dealing with the writ petitions was exercising its criminal jurisdiction. It  cannot  be  also  lost  sight  of  that  the  writ petitions  were  intended  to  avoid  the consequences  of  criminal  proceedings  imitated under  the  Code  of  Criminal  Procedure  and concerned  with  rights  in  criminal  law  domain. We have thus no doubt that  the learned single Judge,  in  dealing  with  the  writ  petitions  was exercising  “criminal  jurisdiction”  and  these Letters Patent Appeals are not maintainable.”

61. As we find from the decisions of  the aforesaid three

High Courts, it is evident that there is no disagreement or

conflict on the principle that if an appeal is barred under

Clause 10 or Clause 15 of the Letters Patent, as the case

may  be,  no  appeal  will  lie.   The  High  Court  of  Andhra

Pradesh,  however,  has  held  that  when  the  power  is

exercised under Article 226 of the Constitution for quashing

of  a criminal  proceeding,  there  is  no exercise  of  criminal

jurisdiction.  It  has  distinguished  the  proceeding  for

quashing  of  FIR  under  Section  482  CrPC  and,  in  that

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54

context,  has  opined  that  from such an  order,  no  appeal

would lie.  On the contrary, the High Courts of Gujarat and

Delhi, on the basis of the law laid down by this Court in

Ishwarlal Bhagwandas (supra), have laid emphasis on the

seed of initiation of criminal proceeding, the consequence of

a criminal proceeding and also the nature of relief sought

before  the  Single  Judge  under  Article  226  of  the

Constitution.  The  conception  of  ‘criminal  jurisdiction’  as

used  in  Clause  10  of  the  Letters  Patent  is  not  to  be

construed in the narrow sense.  It encompasses in its gamut

the inception and the consequence. It is the field in respect

of  which  the  jurisdiction  is  exercised,  is  relevant.   The

contention  that  solely  because  a  writ  petition  is  filed  to

quash an investigation, it would have room for intra-court

appeal and if a petition is filed under inherent jurisdiction

under Section 482 CrPC, there would be no space for an

intra-court  appeal,  would  create  an  anomalous,

unacceptable  and  inconceivable  situation.   The  provision

contained  in  the  Letters  Patent  does  not  allow or  permit

such an interpretation.  When we are required to consider a

bar or non-permissibility, we have to appreciate the same in

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55

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.  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  Punjab41.   However,  that  has  not  curtailed  the

extraordinary power of the High Court to entertain a plea of

anticipatory  bail  as  has  been  held  in  Lal  Kamlendra

Pratap Singh v. State of Uttar Pradesh and others42 and

Hema Mishra v.  State of  Uttar Pradesh and others43.

But that does not mean that an order passed by the Single

41

 (1994) 3 SCC 569 42

 (2009) 4 SCC 437 43

 (2014) 4 SCC 453

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56

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.  

62. In view of the aforesaid premised reasons, we hold that

the  High Courts  of  Gujarat  and Delhi  have correctly  laid

down the law and the view expressed by the Full Bench of

the High Court of Andhra Pradesh is incorrect.  

63. We will be failing in our duty if we do not take note of

an authority cited by Mr. Visen.  He has commended us to

the Division Bench Judgment of the High Court of Punjab

and Haryana in  Adishwar Jain v.  Union of  India and

another44.  In the said case, the question arose with regard

to  the  maintainability  of  Letters  Patent  Appeal,  for  the

Single Judge had dismissed the writ of Habeas Corpus.  The

Division  Bench,  dealing  with  the  maintainability  of  LPA,

referred to  Umaji Keshao Meshram (supra) and extracted

the following passage:-

44

 2006 Cri.LJ 3193

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57

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

64. On the aforesaid basis, the Division Bench ruled that

in a proceeding under Article 226 consisting of civil rights,

the proceedings are civil in nature falling within the ambit of

Clause  10  of  the  Letters  Patent.   In  the  said  case,  the

detention  was  under  the  COFEPOSA  Act.   The  Court

observed  that  the  said  detention  is  purely  preventive

without any trial in a criminal court and the challenge to

such detention is for the enforcement of a fundamental civil

right and, therefore,  a writ  under Article 226 for issue of

Habeas Corpus in such like matters cannot be considered

as a proceeding under criminal jurisdiction even though the

writ petition is identified as a criminal writ petition under

the High Court Rules and others.  The said decision has to

be  carefully  appreciated.   The  nomenclature  of  a  writ

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petition is not the governing factor. What is relevant is what

is  eventually  being  sought  to  be  enforced.   The  Division

Bench  observed  that  as  there  is  a  preventive  detention,

there  is  a  violation  of  fundamental  civil  right.   The  said

decision,  as  is  noticeable,  was  rendered  in  a  different

context.  We are only inclined to say that the said authority

does not assist the proposition expounded by the learned

counsel for the State.  

65. In the case at hand, the writ petition was filed under

Article  226  of  the  Constitution  for  quashing  of  the

recommendation  of  the  Lokayukta.  The  said

recommendation would have  led  to  launching of  criminal

prosecution,  and,  as  the  factual  matrix  reveals,  FIR  was

registered  and  criminal  investigation  was  initiated.  The

learned Single Judge analysed the report and the ultimate

recommendation of the statutory authority and thought it

seemly to quash the same and after quashing the same, as

he  found  that  FIR  had  been  registered,  he  annulled  it

treating  the  same  as  a  natural  consequence.   Thus,  the

effort  of  the  writ  petitioner  was  to  avoid  a  criminal

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investigation  and  the  final  order  of  the  writ  court  is

quashment of  the registration of  FIR and the subsequent

investigation.  In such a situation, to hold that the learned

Single Judge, in exercise of jurisdiction under Article 226 of

the Constitution, has passed an order in a civil proceeding

as  the  order  that  was  challenged  was  that  of  the

quasi-judicial  authority,  that  is,  the Lokayukta,  would be

conceptually fallacious.  It is because what matters is the

nature of the proceeding, and that is the litmus test.  

66. In  view  of  the  aforesaid  prismatic  reasoning,  the

irresistible conclusion is that the Letters Patent Appeal was

not  maintainable  before  the  Division  Bench  and,

consequently,  the  order  passed  therein  is  wholly

unsustainable and, accordingly, it is set aside.  However, as

the  State  had  been diligently  agitating  its  grievance  in  a

legal  forum  which  it  thought  had  jurisdiction,  we  grant

liberty to the State to assail the order of the learned Single

Judge in accordance with law.   

67. Consequently, the appeal is allowed and the impugned

order is set aside.  However, liberty is granted to the State to

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challenge the order of the learned Single Judge.  There shall

be no order as to costs.

..........................................J.          (Dipak Misra)

..........................................J.        (A.M. Khanwilkar)

..........................................J.        (Mohan M. Shantanagoudar)

New Delhi; March 21, 2017.