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2014 DIGILAW 440 (JK)

Bagh Dai v. State of J&K

2014-10-31

B.L.BHAT

body2014
JUDGMENT : Bansi Lal Bhat, J.:- 1. Through the medium of instant petition, petitioner has invoked writ jurisdiction of this Court under Articles 226 and 227 of the Constitution of India read with Sections 103 and 104 of the Constitution of Jammu and Kashmir as also provisions of 561-A and 561-B Cr.P.C. seeking recording of statement of the petitioner by a Judicial Magistrate under Section 164-A Cr.P.C. in FIR No. 07/2014 dated 16.02.2014, registered under Sections 354, 341, 376(2)(g) RPC of Police Station, Panchari, Udhampur and commanding the respondent No. 2 to investigate the case in a fair manner on the basis of such statement. The statement of prosecutrix-Bagh Dai has been recorded in the Court of learned Munsiff Mobile Magistrate (Traffic) Udhampur in terms of provision of 164-A Cr.P.C. on 08.03.2014, wherein she has reiterated the allegations of gang rape against three accused who are claimed to be have been identified by Mohd. Yaqoob who happened to pass by the place of occurrence along with a woman and had chased the accused to ascertain their identify. This statement is not materially different from the allegations leveled in the FIR and the version disclosed before learned Judicial Magistrate is in consonance with the allegations of gang-rape in the FIR. It is also admitted case of the parties that the prosecutrix was produced by the Investigating Officer before learned Judicial Magistrate for causing her statement to be recorded under Section 164-A Cr.P.C. Therefore the allegations of petitioner-prosecutrix that the learned Magistrate had not recorded the names of accused whom she nominated before him cannot be accepted. 2. It is well settled that writ jurisdiction under Article 226 of the Constitution of India is extraordinary in nature and the same is not meant for declaring the private rights of the parties. The remedy available under Article 226 is not available unless there is violation of some statutory duty on the part of the statutory authority. A writ petition is a remedy in public law which can be filed by any person but the main respondent should either be the State, Government, governmental functionaries, or its instrumentalities/agencies within the meaning of Article 12 of the Constitution. Private individuals cannot be equated with State or its instrumentalities/functionaries. All the respondents in the writ petition cannot be private individuals. However, private individuals acting in collusion with the State can be respondents in a writ petition. Private individuals cannot be equated with State or its instrumentalities/functionaries. All the respondents in the writ petition cannot be private individuals. However, private individuals acting in collusion with the State can be respondents in a writ petition. The person against whom writ can be issued must have some statutory or public duty to perform. Power under Article 226 is exercised at the instance of persons pr citizens for vindication of their constitutional or statutory rights. The relief under Article 226 can be claimed ex debito justitiae or as a matter of right when there is infringement of fundamental rights. 3. However, a petition filed under Article 227, stricto-sensu is not a writ petition. The nature of exercise of power under Article 227 stands on substantially different footing. Jurisdiction under Article 227 is neither original nor appellate. Article 227 vests jurisdiction in the High Court both for administrative control and judicial superintendence over the Courts and tribunals subordinate to it. While in its jurisdiction under Article 226, the High Court has power to annul or quash an order or proceedings jurisdiction under Article 227 can be exercised to substitute the order impugned by an order which the inferior tribunal should have passed. This is apart from annulling the proceedings or quashing of the order impugned. While power under Article 226 is exercised when a party is affected, the power under Article 227 can be exercised by the High Court suo motu as a custodian of justice. Thus the powers conferred under Articles 226 and 227 of Constitution of India are distinct and operate in different fields. Interference by the High Court under Article 227 is to keep the subordinate courts within the bounds of their jurisdiction. However, mere errors of fact or of law cannot be corrected by taking recourse to writ of certiorari or exercise of supervisory jurisdiction unless such error is manifest or apparent on the face of the proceedings and a gross failure of justice has occasioned thereby. Such powers are to be exercised sparingly and in appropriate cases where the judicial conscience of the Court dictates it to act to bring failure of justice to halt. Such powers are to be exercised sparingly and in appropriate cases where the judicial conscience of the Court dictates it to act to bring failure of justice to halt. Caution and circumspection is to be exercised when such jurisdiction is sought to be invoked during the pendency of any suit/proceedings before a subordinate Court and the error is capable of being corrected at the conclusion of proceedings though calling for correction. I am fortified in this view by a judgment of the apex Court in a case titled Shalini Shyam Shetty and another v. Rajendra Shankar Patil, (2010) 8 SCC 329 . The Hon'ble apex Court after analyzing various decisions rendered by it, formulated the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution:- "On an analysis of the aforesaid decisions of this Court the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated: (a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different. (b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above. (c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court. (d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court. (e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, within the bounds of their authority". (f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them. (g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. (h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law 'or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised. (i) High Court's power of superintendence under Article 227 cannot be curtailed by any Statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar v. Union of India & Others reported in (1997) 3 SCC 261 and therefore abridgement by a Constitutional amendment is also very doubtful. (j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227. (k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227. (k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu. (l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory. (m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court. (n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to High degree of judicial discipline pointed out above. (o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality." 4. Keeping in view the dictum of the law enunciated hereinabove, be it seen that it is for the Trial Court to ascertain, during the course of trial, as to why petitioner-prosecutrix did not nominate the accused before learned Magistrate though she reiterated the allegations of gang-rape and supported the version in FIR to the hilt. Keeping in view the dictum of the law enunciated hereinabove, be it seen that it is for the Trial Court to ascertain, during the course of trial, as to why petitioner-prosecutrix did not nominate the accused before learned Magistrate though she reiterated the allegations of gang-rape and supported the version in FIR to the hilt. There is nothing on record to show that the learned Magistrate did not follow the mandate of Section 164-A Cr.P.C. It would again be for the trial Court to ascertain whether the procedural requirements have been observed scrupulously Jurisdiction of this Court under Articles 226 or 227 of the Constitution of India cannot be invoked at this stage when the matter is still under investigation and trial is yet to take off. Writ petition under Article 226 of the Constitution of India admittedly is not maintainable and curative jurisdiction under Article 227 of the Constitution of India can be invoked to keep the trial Court within the bounds of law only after the trial takes off. That stage is yet to be reached. Thus there is no scope for intervention at this stage. 5. There being no merit in the petition, same is dismissed along with connected CMA.