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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

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

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

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

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

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recommended registration of  a case against the petitioner

therein under the provisions of the 1988 Act and further for

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

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(2014) 2 SCC 1

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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

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, the 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

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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 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.”

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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,

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 re­constitute a Special Investigation  Team comprising three senior IPS officers who originally do not belong to the State of Haryana.

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Liberty  is granted to the parties to seek out­of­ 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

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  intra­court 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 intra­court appeal

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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 authority in

Justice Chandrashekaraiah (Retd.) v. Janekere C.

Krishna & others2.   

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

Lokayukta or  Upa­Lokayukta as has been dealt with in

Justice Chandrashekaraiah  (supra). In the said case,

Radhakrishnan, J. ruled that Lokayukta and Upa­

Lokayukta act as quasi­judicial 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

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 (2013) 3 SCC 117

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quasi­judicial 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 Upa­Lokayukta,  however,  has no  jurisdiction or power to direct the Governor or the Chief Minister to implement his report or direct resignation from 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 quasi­judicial

authority.   The argument on behalf of  the State was that

Upa­Lokayukta is essentially required to investigate

complaints and enquire into the grievances brought before it

and, therefore,  he  may  be exercising some  quasi­judicial

functions, but that does not  make him a quasi­judicial

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authority.   The said submission was advanced to highlight

the proposition that when the Upa­Lokayukta is not a

quasi­judicial 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  Upa­Lokayukta, it  has  been

held that:­

“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 Upa­Lokayukta, as  statutorily  prescribed,  clearly  bring  out that not only does he perform quasi­judicial functions, as contrasted with purely administrative or executive functions, but that the Upa­Lokayukta 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 Upa­Lokayukta  can only  be  described  as  a  sui generis quasi­judicial authority.”

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“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 Upa­Lokayukta is neither a court  nor  a tribunal.  Therefore, in  my opinion, the Upa­Lokayukta can best be described as a sui generis quasi­judicial 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 Upa­Lokayukta 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  Upa­Lokayukta is a quasi­judicial authority or in any event an authority exercising functions, powers, duties

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 AIR 1965 SC 1595

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and responsibilities conferred by the Act as a sui generis quasi­judicial authority.

15. The aforesaid pronouncement was rendered when the

appointment of Upa­Lokayukta 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 Upa­Lokayukta.  

16. The aforesaid paragraphs would clearly show that

neither the Lokayukta nor Upa­Lokayukta 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

Upa­Lokayukta are quasi­judicial in nature, their

functioning has to be given the same character and once

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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

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 intra­court 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 Upa­Lokayukta.  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 Upa­Lokayukta can direct

implementation of his report, but it  investigates and after

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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 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 twenty­nine  in the exercise of  appellate  jurisdiction in respect of  a decree or order made in the exercise of appellate

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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

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.”

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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 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 four­Judge Bench, in  South

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

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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 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.

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(1965) 2 SCR 756

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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,

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

5 (2005) 2 SCC 591

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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 intra­court appeals provided under the

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:­

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“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  3­1­1977 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 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:­

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“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 11­A 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

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

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Patent.  The exercise  of jurisdiction has  to be within  the

ambit and scope of the authority enshrined in the provision

meant for intra­court 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 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

6

(1966) 1 SCR 190

24

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

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:­

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“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:­

“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

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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

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.  

27

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

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

7 1986 (Supp.) SCC 401

28

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  100­A  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 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

29

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 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

8

AIR 1968 SC 1481

9

(1973) 1 SCR 185

30

does not mean that these two processes are the same.”   

36. In the  ultimate  analysis, the two­Judge  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

intra­court appeal against the decision of the learned Single

Judge was expressly barred.  

37. In this context, a reference to a two­Judge 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

controversy had arisen from the dispute raised before the

Labour Court.   The matter travelled through the Industrial

10

(2009) 10 SCC 584

31

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 cause­title 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 Single Judge has mainly or principally exercised

11

(2006) 7 SCC 496

12

(2008) 15 SCC 233  

13

1993 Supp (1) SCC 11

32

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 intra­court/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

33

the intra­court 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 three­Judge Bench.  The three­Judge 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:­  

15

(2015) 5 SCC 423

16

(2003) 6 SCC 675

17

AIR 1967 SC 1

34

“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 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:­  

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

35

“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 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,

23

(2004) 4 SCC 785

24

(2005) 1 SCC 481

25

(2005) 6 SCC 344

36

thus, unable to accept the submission of the learned counsel for the respondent.”

42. In the ultimate eventuate, the three­Judge Bench

answered the reference as follows:­

“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 nine­Judge Bench decision in Naresh

Shridhar Mirajkar  (supra) and the three­Judge 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 intra­court appeal is maintainable.  

26

(2015) 9 SCC 1

37

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 two­Judge Bench proceeded to answer

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

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 three­Judge 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

27

(1999) 6 SCC 275

38

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 co­exist, coincide and

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 two­Judge 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.

39

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 intra­court appeal

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

factors as have been enumerated therein.  

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

40

determination by the High Court under the said Article and,

hence, no intra­court appeal is entertainable.

(d)  The tenability of intra­court 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

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

28

AIR 1955 SC 233

29

AIR 1954 SC 440

41

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 re­hear the case on the evidence, and substitute its own findings in certiorari. These propositions ­are well settled and are not in dispute.”  

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 Upa­Lokayukta, 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

42

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, intra­court

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)

does not render any assistance to the argument advanced

by the learned counsel for the respondent­State.  

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 quasi­judicial authority

and the proceeding being quasi­judicial 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

44

51. Dwelling upon the said issue, the Court referred to the

authority in  State of Haryana and others v. Bhajanlal

and  others31  wherein the  Court had categorised certain

aspects  of the  case  as illustrations  wherein  power  under

Article 226 or the inherent power under Section 482 CrPC

can  be exercised.  Be it  noted, the  Court gave  a  note of

caution to the effect that the power of quashing a criminal

proceeding should be exercised very sparingly and with

circumspection and that too in the rarest of rare cases and

further, the Court will not be justified in embarking upon an

enquiry as to the reliability or genuineness or otherwise of

the allegations made in the FIR or the complaint and that

the extraordinary or inherent powers do not confer an

arbitrary  jurisdiction on the Court to act according to  its

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

same, adverted to the authorities in  Rashmi  Kumar v.

Mahesh Kumar Bhada32   and Rajesh Bajaj v. State NCT

31

AIR 1992 SC 604

32

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

45

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 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

33

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

46

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

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

34

(2000) 1 Gujarat Law Reports 206

47

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 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

35 1998 (4) SCC 409

49

55. It is worthy to note that a series of decisions were cited

on behalf of the appellants therein including a Full Bench

judgment  of the  Gujarat  High Court in  Patel  Kashiram

Lavjibhai v. Narottamdas Bechardas & others38 wherein

the Full Bench considered Articles 226 and 227 of the

Constitution in the light of various decisions of this Court

and deduced certain principles. The Division Bench

distinguished the said decision on the ground that the Full

Bench did not lay down as a proposition of law that LPAs

would be maintainable even if an order was passed by the

learned Single Judge in exercise of criminal jurisdiction, for

the case before the Full Bench related to right in land and

the question was whether the power exercised by the

learned Single Judge was under Article 226 or under Article

227 of the Constitution.   Eventually, the Court referred to

Ishwarlal Bhagwandas  (supra) and opined thus:­

“80. In our considered opinion, in the instant case, the proceedings can be said to be criminal proceedings inasmuch as, carried to its

38

1978 GLR 1047  (FB)

51

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

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

39

2011 (125) DRJ 241 (FB)

52

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 intra­court 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 intra­court

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

53

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.

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

54

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:­  

“…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

40

208 (2014) DLT 468 (DB)

55

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

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

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

56

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 intra­court

appeal and if a petition is filed under inherent jurisdiction

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

intra­court 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 non­permissibility, we have to appreciate the same in

true letter and spirit.   It confers jurisdiction as regards the

57

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

58

Judge in exercise of Article 226 of the Constitution relating

to criminal jurisdiction, can be made the subject matter of

intra­court 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

59

“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

60

be carefully appreciated.   The nomenclature of a writ

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

61

effort of the writ petitioner was to avoid a criminal

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.  

62

67. Consequently, the appeal is allowed and the impugned

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

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.

ITEM NO.1A                 COURT NO.2               SECTION IVB

              S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C) No(s).  15362/2016

(Arising out of impugned final judgment and order dated  12/05/2016 in LPA No. 1426/2015 12/05/2016 in CM No. 3930/2015 passed by the High Court of Punjab & Haryana at Chandigarh)

RAM KISHAN FAUJI                                   Petitioner(s)

                               VERSUS

STATE OF HARYANA AND ORS.                          Respondent(s)

Date : 21/03/2017 This petition was called on for judgment today.

For Petitioner(s) Dr. Rajeev Dhavan, Sr. Adv. Mr. Arunabh Chowdhury, Aadv. Mr. Anupam Lal Das, AOR Mr. Karma Dorjee, Adv. Mr. Vaibhav Tomar, Adv. Mr. Anirudh Singh, Adv.

For Respondent(s)  Mr. Sanjay Kumar Visen, AOR

                 Dr. Monika Gusain, AOR                       

Hon'ble Mr. Justice Dipak Misra pronounced the judgment of the

Bench  consisting  of  His  Lordship,  Hon'ble  Mr.  Justice  A.M.

Khanwilkar and Hon'ble Mr. Justice Mohan M. Shantanagoudar.

Leave granted.

The appeal is allowed and the impugned order is set aside in

terms  of  the  signed  reportable  judgment.   However,  liberty  is

granted to the State to challenge the order of the learned Single

Judge.  There shall be no order as to costs.

(Gulshan Kumar Arora)     (H.S. Parasher)     Court Master       Court Master

(Signed reportable judgment is placed on the file)