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2018 DIGILAW 87 (UTT)

Soniya Chawla v. State of Uttarakhand

2018-03-08

MANOJ K.TIWARI, RAJIV SHARMA

body2018
JUDGMENT : Rajiv Sharma, J. The present special appeal has been instituted against the judgment dated 28.02.2018 rendered by learned Single Judge in Writ Petition (Criminal) No. 140 of 2018 (Priya Sharma & another v. State of Uttarakhand & others). 2. We are of the considered view that the present appeal is not maintainable in view of the law laid down by the Division Bench of this Court in Special Appeal No. 216 of 2009 titled as ‘Upendra Singh Maniyari v. Jagmohan Singh and others’ decided on February 19, 2010. Their Lordships have held as under:- “9. In so far as the controversy in hand is concerned, whilst it is the case of the appellants before us, that the remedy to file a “Special Appeal” is available to the appellants under Rule 5, contained in Part C, of Chapter VIII of the “Rules of the Court, 1952” as the impugned order passed by the learned Single Judge, is not excluded from the purview of the aforesaid rule; it is the contention of the learned counsel for the respondents, that no such remedy is available, to the appellants as the impugned order had been passed by a learned Single Judge in exercise of “criminal jurisdiction” vested in him. Stated differently, the appellants before this court pleaded that the order sought to be impugned through the instant Special Appeal, had been passed by a learned Single Judge of this court in exercise of the “writ jurisdiction” under Article 226 of the Constitution of India, and not in exercise of “criminal jurisdiction”, and as such, the objection raised on behalf of the respondents is of no consequence. In order to repudiate the contention advanced by the learned counsel for the respondents, two submissions were advanced by the learned counsel for the appellants. Firstly, that “writ jurisdiction” exercised by this Court under Article 226 of the Constitution, is separate and distinct from “civil jurisdiction” or “criminal jurisdiction”, and as such, an order passed by the High Court in exercise of “writ jurisdiction” could not be considered as having been passed by it, either in exercise of “civil jurisdiction” or in exercise of “criminal jurisdiction”. And secondly, the meaning of the term “criminal jurisdiction” has to be ascertained from rules 10 and 11, contained in Section D, of Chapter VIII of the “Rules of the Court, 1952”. And secondly, the meaning of the term “criminal jurisdiction” has to be ascertained from rules 10 and 11, contained in Section D, of Chapter VIII of the “Rules of the Court, 1952”. The impugned order, according to learned counsel, can not be treated as one, having been passed under either of the aforesaid provisions. As such, according to learned counsel, the objection raised by the respondents, to the maintainability of the instant “Special Appeal” is of no consequence. In view of the submissions advanced by the learned counsel for the rival parties, it is imperative for this Court, while adjudicating upon the present controversy, to determine, firstly, whether the impugned order passed by the learned Single Judge was rendered in exercise of “criminal jurisdiction” vested in this Court. In answering this question, it would also be essential for this court to determine, whether an order passed by a learned Single Judge in exercise of jurisdiction vested in the High Court under Article 226 of the Constitution of India, can be treated as having been passed by it in exercise of “criminal jurisdiction”. 52. For the reasons recorded hereinabove, we are of the view that the instant “Special Appeal” having been filed by the appellant against an order rendered by a learned Single Judge of this Court in exercise of “criminal jurisdiction” vested in him, is not maintainable under Rule 5, contained in Section C, of Chapter VIII, of the “Rules of the Court, 1952”. As such, the instant Special Appeal” is hereby dismissed as not maintainable.” 3. Mr. C.K. Sharma, learned Counsel, appearing for the appellant, has placed reliance on another judgment rendered by the Division Bench of this Court in Special Appeal No.204 of 2013 (Rakesh Kumar v. State of Uttarakhand and others) decided on July 4, 2013. In our opinion, this judgment is per incuriam for the simple reason that the ratio of Upendra Singh’s case, cited hereinabove, has not been considered in depth. Learned Division Bench while deciding SPA No.204 of 2013 (Rakesh Kumar’s case) could not take a different view from the earlier decision rendered by the Division Bench in Upendra Singh’s case. 4. Learned Counsel for the appellant has also placed reliance on a judgment rendered by the Full Bench of Hon’ble Andhra Pradesh High Court reported in 2000 (2) ALD 824 “Gangaram Kandaram v. Sunder Chikha Amin”. 4. Learned Counsel for the appellant has also placed reliance on a judgment rendered by the Full Bench of Hon’ble Andhra Pradesh High Court reported in 2000 (2) ALD 824 “Gangaram Kandaram v. Sunder Chikha Amin”. This judgment only has a persuasive value and the same is not binding upon us. The detailed judgment rendered, in Upendra Singh’s case, whereby the entire facts, law and case law has been discussed, is binding upon us. 5. The Division Bench of this Court in SPA No.183 of 2016 (Dharmendra v. State & others) had an occasion to consider the judgments rendered by this Court in Upendra Singh’s case (SPA No. 216 of 2009) decided on February 19, 2010) as well as in Rakesh Kumar’s case (SPA No. 204 of 2013) decided on July 4, 2013. The Division Bench in SPA No.183 of 2016, vide judgment dated July 4, 2016, has held as under: - “4. Under Rule 5 of Chapter VIII of the Rules of the Court, 1952, no special appeal will lie against an order passed in the exercise of criminal jurisdiction. Faced with this aspect of the matter, learned counsel for the appellant relied on the judgment of this Court in Rakesh Kumar vs. State of Uttaranchal and others, reported in 2013 (2) U.D. 7 . There, the learned Single Judge, after allowing the writ petition to be withdrawn, had made certain statements. It was found that there was no record before him, after having permitted withdrawal, to record a prima facie view that Section 420 of the Indian Penal Code was not made out. More importantly, the Division Bench proceeded, however, to hold as follows: “2. …..Learned counsel for respondent no. 3 cited a judgment of a Division Bench of this Court, rendered in the case of Upendra Singh Maniyari Vs. Jagmohan Singh and others reported in 2010 (1) U.D. 139 , for the purpose of demonstrating before us that an Appeal against an order passed on a petition filed for quashing a First Information Report is not maintainable. A look at the judgment would show that, after having had failed to obtain an order on the writ petition, writ petitioner cannot prefer an Appeal for the purpose of obtaining from the Appellate Court the order, prayed for in the writ petition. This judgment has no application to the present case. A look at the judgment would show that, after having had failed to obtain an order on the writ petition, writ petitioner cannot prefer an Appeal for the purpose of obtaining from the Appellate Court the order, prayed for in the writ petition. This judgment has no application to the present case. In the instant case, the Appeal is against an order, which has no existence in law at all. An appeal against such action is always maintainable.” 5. Far from assisting the appellant, this decision actually goes against the appellant. Here also, appellant sought to quash the FIR and sought other relief’s. The same has not been granted. Appellant seeks the relief’s sought for in the writ petition. The position is more similar to a decision in the case of Upendra Singh Maniyari vs. Jagmohan Singh and others, reported in 2010 (1) U.D. 139 . Therefore, the appeal would not be maintainable in view of the law laid down in Upendra Singh Maniyari’s case (supra), as the order passed is one which is passed in the exercise of criminal jurisdiction.” 6. Accordingly, it is held that the special appeal against an order rendered by a learned Single Judge of this Court, in exercise of ‘criminal jurisdiction’, is not maintainable. Thus, the special appeal is dismissed on the ground of maintainability alone. 7. All pending applications stand dismissed accordingly. 8. Let a copy of this order be issued to all concerned, today itself, as per Rules.