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2017 DIGILAW 474 (CHH)

Mohd. Arshad Khan, (Adv. ) v. Central Bureau of Investigation

2017-08-31

P.SAM KOSHY, SANJAY AGRAWAL, THOTTATHIL B.RADHAKRISHNAN

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JUDGMENT : Sanjay Agrawal, J. 1. While hearing the Writ Appeal No.97/2008, the Division Bench of this Court has opined vide order dated 22.02.2011 that whether the learned Single Judge has examined the supervisory jurisdiction under Article 227 of the Constitution of India in considering whether the criminal proceedings could be quashed or not or whether the said writ petition was to be treated as one under Article 226 of the Constitution of India only. It was thus opined that the matter requires to be considered on the question whether Writ Appeal against the order impugned dated 19.03.2008 passed by the learned Single Judge in W.P.(C) No.1467/2008 would be maintainable or not. The matter was accordingly placed before the Hon'ble the Chief Justice for constituting a larger Bench and after due consideration, the matter was thus placed before the Full Bench, as per the direction issued on 09.03.2011 for consideration of the above referred question. 2. Before considering the question referred to the Full Bench, it would be appropriate to refer to Section 2(1) of the Chhattisgarh High Court (Appeal to Division Bench) Act, 2006 (for brevity 'the Act'), which reads as under: “2. Appeal to Division Bench of the High Court from a judgment or order of one judge of the High Court made in exercise of original jurisdiction.-(1) An appeal shall lie from a judgment or order passed by one judge of the High Court in exercise of original jurisdiction under Article 226 of the Constitution of India, to a Division Bench comprising of two judges of the same High Court. Provided that no such appeal shall lie against an interlocutory order or against an order passed in exercise of supervisory jurisdiction under Article 227 of the Constitution of India.” 3. The issue raised before us is pertaining to the proviso quoted above in order to ascertain whether the order impugned as passed by the learned Single Judge on 19.03.2008 in W.P.(C) No.1467/2008 is amenable to intra-court appeal under sub-section (1) of Section 2 of the said Act or not. The order impugned questioned in writ appeal is not the interlocutory order, therefore, we have to examine whether the writ jurisdiction under Article 227 of the Constitution was invoked by the learned Single Judge while passing the order impugned dated 19.03.2008. 4. The order impugned questioned in writ appeal is not the interlocutory order, therefore, we have to examine whether the writ jurisdiction under Article 227 of the Constitution was invoked by the learned Single Judge while passing the order impugned dated 19.03.2008. 4. The facts placed before the learned Single Judge in the writ petition are, therefore, necessary to examine in order to ascertain the facts whether it was exercised the writ jurisdiction under Article 226 or 227 of the Constitution of India. 5. The undisputed facts involved in the said writ petition are that the petitioner Mohd. Arshad Khan, while exercising the writ jurisdiction enumerated under Article 226 of the Constitution of India, has prayed for quashment of the Criminal Case No. 833/2006 “Prakash Choubey vs. Mohd. Arshad Khan”, which was pending before the Judicial Magistrate First Class, Durg. It was alleged for its quashment that the said criminal proceeding was initiated against him on the basis of the complaint filed by one Prakash Choubey, the respondent No.5 in the said writ petition, on the allegation that the said petitioner (Mohd. Arshad Khan) while making a false and defamatory allegations against him, had earlier instituted a petition, being W.P. No. 3333/2003, by submitting, inter alia therein, that a Criminal Case under Section 395 of the Indian Penal Code (for short 'the I.P.C.') is pending against him in relation to a dacoity of the year 1987. The initiation of the said writ petition as such, based upon false allegation, has lowered down his position and image in the society and has been made intentionally in order to tarnish his image, therefore, he has been constrained to lodge the said complaint. Based upon which, the alleged criminal case was registered while framing charge under Section 501 of the I.P.C. against the petitioner Mohd. Arshad Khan. 6. The aforesaid allegation as alleged before the learned Magistrate was countered by the petitioner by submitting his detailed written submissions by making various allegations against the said respondent Prakash Choubey regarding his personal character but the learned Magistrate, without considering the same in its proper manner, has framed the charge under Section 501 of the I.P.C. on 25.09.2007. The petitioner had, therefore, prayed for the quashment of the said criminal case while filing the said writ petition. 7. The petitioner had, therefore, prayed for the quashment of the said criminal case while filing the said writ petition. 7. Further contention of the writ petitioner was that the name of respondent No.5 was directed to be removed from the roll of advocates maintained by the State Bar Council of Delhi and without considering his allegations, based upon which the name of respondent No.5 was removed from the State Bar Council of Delhi, the alleged offence punishable under Section 501 of the I.P.C. has been framed against him, which is per se on the face of the record is abuse of process of law, therefore, liable to be quashed. 8. Based upon the aforesaid facts, it was prayed by the petitioner in the said writ petition that the Criminal Case No. 833/2006 as initiated on the basis of false allegations be quashed and, the Central Bureau of Investigation (C.B.I.), the respondent No.1 herein, be directed to hold a detailed investigation against the said respondent No.5 Prakash Choubey. 9. A bare perusal of the aforesaid pleadings made in the said writ petition would show that two distinct reliefs were claimed by the petitioner. 10. While entertaining the said writ petition, it was observed by the learned Single Judge vide its order impugned dated 19.03.2008 that the two distinct reliefs, as claimed, arose on two different cause of actions and such reliefs cannot be granted in one writ petition. The learned Single Judge has observed further that for quashing of Criminal Case No. 833/2006 pending before the Judicial Magistrate First Class, Durg, the extraordinary power enumerated under Article 226 of the Constitution of India or the inherent powers as provided under Section 482 of the Code of Criminal Procedure, 1973 could be exercised either to prevent abuse of process of law or otherwise to secure ends of justice by relaying upon the principles laid down in State of Haryana & Others vs. Bhajan Lal & Others reported in 1992 Supp. (1) SCC 335. 11. Thus, prima facie, with the aid of the aforesaid principles, it was observed by the learned Single Judge that the alleged complaint case could be quashed either in exercise of power enumerated under Article 226 of the Constitution of India or in exercise of inherent power under Section 482 of the Code of Criminal Procedure, 1973. (1) SCC 335. 11. Thus, prima facie, with the aid of the aforesaid principles, it was observed by the learned Single Judge that the alleged complaint case could be quashed either in exercise of power enumerated under Article 226 of the Constitution of India or in exercise of inherent power under Section 482 of the Code of Criminal Procedure, 1973. Be that as it may, the learned Single Judge, based upon the materials available on record, has refused to quash the same as prima facie ingredients for framing charge under Section 501 of the I.P.C. was found. 12. The aforesaid analysis of facts, vis-a-vis, the observations of the learned Single Judge would demonstrate unequivocally that the disputed questions of law and facts are involved in the said writ petition and consequent upon the intra-court appeal preferred under sub-section (1) of Section 2 of the Act, therefore, the question as referred regarding maintainability of writ appeal is uncalled for. Consequently, the matter be placed before the Division Bench for further hearing of this writ appeal. Per, P. Sam Koshy, J. 13. Having studied the opinion expressed by brother Sanjay Agrawal, J., in the judgment proposed to be delivered by him, while I entirely agree with the same, I wish to add a view paragraphs particularly to supplement to what he has said on the topic, “what would constitute a petition under Article 226 and which are matters which would fall under Article 227 of the Constitution of India”. 14. The pertinent question floated for consideration before the larger bench is as to “whether the Writ Appeal referred by the Appellant is maintainable or not”. 15. The Division Bench hearing the appeal was in doubt as to whether the power exercised by the learned Single Judge while dismissing the petition has exercised the power under Article 226 or is it under 227. 16. It was on this dilemma, where the Division Bench was in double mind on the subject matter as to whether the power exercised by the writ Court was an original writ jurisdiction or was it a supervisory jurisdiction. Since brother Agrawal, J., has already penned the factual matrix in detail avoiding repetition we can go through the same for better understanding the facts. 17. Since brother Agrawal, J., has already penned the factual matrix in detail avoiding repetition we can go through the same for better understanding the facts. 17. What is basically under challenge is the registration of a criminal case i.e. Criminal Case No. 833 of 2006 by the Judicial Magistrate First Class, Durg against the Petitioner on a complaint by one Shri Prakash Choubey, the Respondent No.5, for an offence under Section 501 IPC and which has also framed charges for the same offence against the Petitioner. 18. It is this framing of charge which was subjected to challenge in the present writ petition. 19. It is a settled position of law that the writ jurisdiction is capable of being invoked at the instance of any person aggrieved. There is undoubtedly a difference between the writ jurisdiction under Article 226 and the jurisdiction of the High Court under Article 227 of the Constitution of India. Proceedings under Article 226 are in exercise of the original jurisdiction while proceedings under Article 227 of the Constitution are not original but only are supervisory. Article 227 is intended to be used for the purpose of keeping the subordinate Courts/Tribunals within its bounds of their authorities and cannot be exercised to correct mere errors. 20. The principle which must be applied in determining the maintainability of an appeal is whether the facts justify the aggrieved person in filing an application on the original side or on the supervisory side. If the learned Single Judge has in the course of deciding the matter finally exercised its jurisdiction as an original petition, then the party cannot be deprived his right of appeal. 21. It is by now a well settled position of law that mere nomenclature used by a litigant will not by itself be conclusive so as to ascertain whether the petition is one under Article 226 or is one under Article 227 of the Constitution. 22. What would be paramount in deciding as to whether it is a petition under Article 226 or 227 are: (i) the nature of the controversy, (ii) the nature of the jurisdiction invoked, and (iii) the nature of the findings reflected in the final order. 23. Only because the order under challenge is arising out of a subordinate Court by itself would not automatically make it a petition under Article 227. 23. Only because the order under challenge is arising out of a subordinate Court by itself would not automatically make it a petition under Article 227. A writ of certiorari can also be preferred against a proceeding arising from a subordinate Court/Tribunals or authorities. A writ of certiorari is always exercised under Article 226 and which is always an appealable order. 24. At this juncture, it would be relevant for referring to the observations and findings given by the learned Single Judge in its judgment dated 19.3.2008. In paragraphs 9 and 10, the learned Single Judge holds as under:- “9. If we examine the present case in the light of law laid down in the aforesaid judgment, we observe that the petitioner has nowhere denied the allegations in the complaint regarding false implication and pendency of offence under Section 395 of I.P.C. Against the respondent No.5. Moreover, except photocopies of the complaint and particulars of charge framed by the trial court against the petitioner, no other document has been filed by the petitioner. Even certified copy of the particulars of offence has not been filed. 10. However, from perusal of the allegations in the complaint prima facie ingredients for framing charge under Section 501 of the IPC is available. Other averments in the complaint are matters of defence and the same could not be considered by the trial court at the stage of framing of charge and therefore, in the considered opinion of this Court, the court below has not committed any illegality by registering the offence and framing charge against the petitioner herein.” 25. A plain reading of the aforesaid observations and findings clearly spell out the powers which have been exercised by the writ Court. The learned writ Court going into the merits of the case deciding the writ petition reached to the conclusion that there is no merit on the contentions raised by the Petitioner in his writ petition. While exercising the powers, it is apparent that the writ Court had exercised its original jurisdiction under Article 226 of the Constitution of India by deciding the veracity of the order, where, after registration of the offence, charges were also framed against the Petitioner by the Judicial Magistrate First Class was under challenge. While exercising the powers, it is apparent that the writ Court had exercised its original jurisdiction under Article 226 of the Constitution of India by deciding the veracity of the order, where, after registration of the offence, charges were also framed against the Petitioner by the Judicial Magistrate First Class was under challenge. The nature of the controversy put to test before the writ Court itself would clearly demonstrate that it was a petition under Article 226 which was preferred and the powers exercised by the High Court was also one of original jurisdictions under Article 226 and not one under Article 227 of the Constitution of India. 26. In one of its first decision on the topic, the Apex Court in 1986 Supp. SCC 401 (Umaji Keshao Meshram v. Radhikabai) in paragraph 107 held as under: “107. Petitions are at times filed both under Articles 226 and 227 of the Constitution. The case of Hari Vishnu Kamath v. Ahmad Ishaque, (1955) 1 SCR 1104 : AIR 1955 SC 233 , before this Court was of such a type. Rule 18 provides that where such petitions are filed against orders of the tribunals or authorities specified in Rule 18 of Chapter XVII of the Appellate Side Rules or against decrees or orders of courts specified in that Rule, they shall be heard and finally disposed of by a Single Judge. The question is whether an appeal would lie from the decision of the Single Judge in such a case. In our opinion, where the facts justify a party in filing an application either under Article 226 or 227 of the Constitution, and the party chooses to file his application under both these Articles, in fairness and justice to such party and in order not to deprive him of the valuable right of appeal the Court ought to treat the application as being made under Article 226, and if in deciding the matter, in the final order the Court gives ancillary directions which may pertain to Article 227, this ought not to be held to deprive a party of the right of appeal under Clause 15 of the Letters Patent where the substantial part of the order sought to be appealed against is under Article 226.” 27. In 2008 (14) SCC 150 (Ramesh Chandra Sankla & Others v. Vikram Cement & Others), the Hon'ble Supreme Court in paragraph 47 has held as under: “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.” 28. More recently the Hon'ble Supreme Court in one of its judgments reported in 2017 (5) SCC 533 (Ram Kishan Fauji v. State of Haryana & Others) referring to the earlier decision in the case of Radhey Shyam v. Chhabi Nath, 2015 (5) SCC 423 , taking the same analogy and also discussing a whole lot of decisions on the issue in paragraphs 32 and 40 held as under: “32. 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 or 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.” 40. These are writs which are directed against persons, authorities or 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.” 40. Maintainability of a letters patent appeal would depend upon the pleadings in the writ petition, the nature of character of the order passed by the 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 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 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 Single Judge which can be construed as an order under both the articles in a composite manner, for they can co-exist, 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 Single Judge in exercise of jurisdiction under Article 226 or 227 of the Constitution or both.” 29. In view of the same, in concurrence with the findings of brother Agrawal, J., in holding that since the writ petition was decided in exercise of its original jurisdiction under Article 226 of the Constitution of India, in view of the provisions of the Chhattisgarh High Court (Appeal to Division Bench) Act, 2006, the present writ appeal preferred by the Appellant is maintainable. Thus, answering the reference by holding the appeal as maintainable, let the matter be placed before the Division Bench for final adjudication on merits.