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2019 DIGILAW 97 (JK)

Eycon Parveiz v. State

2019-02-26

RASHID ALI DAR, SANJEEV KUMAR

body2019
JUDGMENT : 1. Station House Officer (SHO) Police Station Sadder, Srinagar filed a petition invoking the supervisory jurisdiction of this Court conferred under Section 104 of Constitution of State of Jammu and Kashmir to assail an order passed by the 1st Additional Sessions Judge, Srinagar in case FIR No. 149/2015, under Section 392/302/34/201 RPC, as also the judgment dated 30th November 2017, passed by the 2nd Additional Sessions Judge, Srinagar, whereby order passed by the Chief Judicial Magistrate, Srinagar dated 13th November 2017, passed in case FIR No. 149/2015, had been quashed. 2. The petition was contested by the appellant herein on merits as well as on maintainability. The learned Writ Court allowed the petition and vide judgment dated Station House Officer v. Eycon Parvaiz Mir: 2019 (2) JKJ 508 [HC], 17th July 2018, quashed the orders, impugned in the writ petition and directed the Chief Judicial Magistrate, Srinagar to proceed in the matter and determine the age of the appellant within a period of two months. It is this order which has been called in question by the appellant in this appeal filed under clause 12 of the Letters Patent of this Court. 3. Mr. Bashir Ahmad Dar, Senior Additional Advocate General appearing for the respondents has taken a preliminary objection with regard to the maintainability of this appeal. Accordingly, the learned counsel appearing for the parties were made to address their arguments on the plea of maintainability taken by the respondents in the first instance. 4. Having heard learned counsel for the parties and perused the record, we are of the view that objection to the maintainability of this appeal taken by the respondents must succeed. 5. Admittedly, the respondents had invoked the supervisory jurisdiction of this Court vested by virtue of provisions of Section 104 of the State Constitution. This Section corresponds to Article 227 of the Constitution of India. This was so held by a Full Bench of this Court in ( 2010(7) JKJ 456 [HC] T.C. Kotwal v. State of J&K) reported in AIR 1967 J&K 98 . It is equally well settled that jurisdiction conferred on the Court under Section 104 of the State Constitution is not original jurisdiction. This was so held by a Full Bench of this Court in ( 2010(7) JKJ 456 [HC] T.C. Kotwal v. State of J&K) reported in AIR 1967 J&K 98 . It is equally well settled that jurisdiction conferred on the Court under Section 104 of the State Constitution is not original jurisdiction. Once it is found that an order has been passed by the Single Bench in exercise of supervisory jurisdiction, vested under Section 104 of State constitution, no appeal under clause 12 of the Letters Patent would be maintainable. It is more than clear from the bare reading of the clause 12 of the Letters Patent which for the sake expediency is reproduced hereunder:- "Cl. 12. And we do further ordain that an appeal shall lie to the said High Court of judicature from the judgment (note 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 and order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the exercise of the power of superintendence) of one Judge of the said High Court or one Judge of any Division Court and that notwithstanding anything herein before 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, a consistently with the provisions of the civil procedure code, made in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a court subject to the superintendence of the said High Court where the judge who passed the judgment declares that the case is fit one for appeal; but that the right of appeal from other judgments of the judges of the said High Court or of such division court shall be to us, our Heirs or Successors and be heard by our Board of Judicial Advisers for report to us." 6. The above provision clearly excludes an appeal from the order of a Single Judge passed, inter-alia, in exercise of powers of superintendence. The above provision clearly excludes an appeal from the order of a Single Judge passed, inter-alia, in exercise of powers of superintendence. An order passed under Section 104 of the State Constitution is nothing but an order made in exercise of powers of superintendence conferred on the Court by the Constitution. This was so held by a Division Bench of this Court in case of J&K Cooperative Bank v. Shamas-ud-din Bacha, AIR 1970 J&K 190 . 7. This view is echoed by this Court in several subsequent pronouncements. The Division Bench Judgment of this Court in case of Sansar Chand v. Som Dutt, 2015 (1) JKJ 219 [HC], deserves to be noticed. Paragraph 16 of the judgment which is relevant in the context is reproduced hereunder:- 16. "A close Scrutiny of the aforesaid principles culled out by the Full Bench of Gujarat High Court would lead us to conclude that the letters patent appeal would not be maintainable as it is primarily directed against the order of 1st Additional District Judge who was hearing an appeal against the order of Munsiff, Akhnoor. In cases where a revision petition is barred, a petition under Article 227 would lie in appropriate cases. Once no petition under Article 226 of the Constitution would be entertain-able particularly when the Parliament has thought fit to restrict the powers under Section 115 of the Code of Civil Procedure with a definite object, then an order which is not revisable under Section 115 of the Code of Civil Procedure would equally not be challengeable by filing a writ petition under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu & Kashmir; and particularly when an interlocutory order passed by the Civil Court in a regular suit proceedings is subject matter of challenge. There is, thus, no scope to conclude that the appeal is maintainable and complete answer has been provided by various judgments of Hon'ble the Supreme Court as well as a Division Bench of this Court. There is, thus, no scope to conclude that the appeal is maintainable and complete answer has been provided by various judgments of Hon'ble the Supreme Court as well as a Division Bench of this Court. The Full Bench of the Gujarat High Court in the case of Gujarat State Road Transport Corporation (Supra) has also placed reliance on various judgments of Hon'ble Supreme Court and has thus concluded that letters patent appeal against an order passed under Article 227 of the Constitution of India would not be maintainable as Article 227 confers supervisory-jurisdiction, which cannot be regarded as original jurisdiction". 8. Learned counsel for the appellant however, vehemently submits that though the respondent had labeled his petition as one under Section 104 of the State Constitution but the same, in essence, was a petition under Section 103 of the State Constitution. The learned counsel laid great emphasis on the prayer made by the respondent in the writ petition for seeking issuance of writ of certiorari. It was contended that the writ of certiorari can be issued by the Court only under Section 103 of the State Constitution and not under Section 104 of the State Constitution. Per contra, learned counsel for the respondent submits that the label of the petition or the nature of prayer made is not determinative of the nature of proceedings. It is submitted that looking to the pith and substance of the petition and the nature of jurisdiction exercised by the Court, it cannot be even inferred that the judgment impugned has been passed by the learned Single Judge in exercise of writ jurisdiction. He drew attention of this Court on paragraph 9 of the judgment impugned to make good his point that the judgment impugned has been passed by the learned Single Bench in exercise of powers of superintendence vested under Section 104 of the State Constitution. 9. We have given thoughtful consideration to the aforesaid aspect of the matter as well, which was very ably articulated by both the counsel. 10. 9. We have given thoughtful consideration to the aforesaid aspect of the matter as well, which was very ably articulated by both the counsel. 10. From the contents of the writ petition and a bare reading of paragraph 9 of the judgment impugned, it is beyond any pale of doubt that the learned Single Bench passed the judgment impugned in exercise of its powers of superintendence and not issued writs in terms of Section 103 of the Constitution of the State of J&K. It is equally true that label of proceedings is not significant and cannot be determinative of its nature. It is pith and substance of the proceedings which would determine the nature of exercise of jurisdiction. 11. From the careful perusal of the judgment impugned, we unequivocally find that the jurisdiction, exercised by the learned Single Bench is supervisory jurisdiction vested in the High Court under Section 104 of the State Constitution. At this point of time, we deem it fit to reproduce the observation of the Hon'ble Supreme Court made in paragraph 25 of the judgment, rendered in the case of Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675 , wherein, the Hon'ble Supreme Court has very succinctly brought out the distinction between the two jurisdictions. Paragraph 25 of the Judgment (supra) reads thus:- "Upon a review of decided cases and survey of the occasions, wherein the High Courts have exercised jurisdiction to command a writ of certiorari or to exercise supervisory jurisdiction under Article 227 in the given facts and circumstances in a variety of cases, it seems that the distinction between the two jurisdictions stands almost obliterated in practice. Probably, this is the reason why it has become customary with the lawyers labeling their petitions as one common under Articles 226 and 227 of the Constitution, though such practice has been deprecated in some judicial pronouncement. Without entering into niceties and technicality of the subject, we venture to state the broad general difference between the two jurisdictions. Firstly, the writ of certiorari is an exercise of its original jurisdiction by the High Court; exercise of supervisory jurisdiction is not an original jurisdiction and in this sense it is akin to appellate, revisional or corrective jurisdiction. Without entering into niceties and technicality of the subject, we venture to state the broad general difference between the two jurisdictions. Firstly, the writ of certiorari is an exercise of its original jurisdiction by the High Court; exercise of supervisory jurisdiction is not an original jurisdiction and in this sense it is akin to appellate, revisional or corrective jurisdiction. Secondly, in a writ of certiorari, the record of the proceedings having been certified and sent up by the inferior court or tribunal to the High Court, the High Court if inclined to exercise its jurisdiction, may simply annul or quash the proceedings and then do no more. In exercise of supervisory jurisdiction, the High Court may not only quash or set aside the impugned proceedings, judgment or order but it may also make such directions as the facts and circumstances of the case may warrant, may be, by way of guiding the inferior court or tribunal as to the manner in which it would now proceed further or afresh as commended to or guided by the High Court. In appropriate cases the High Court, while exercising supervisory jurisdiction, may substitute such a decision of its own in place of impugned decision, as the inferior court or tribunal should have made. Lastly, the jurisdiction under Article 226 of the Constitution is capable of being exercised on a prayer made by or on behalf of the party aggrieved; the supervisory jurisdiction is capable of being exercised suo motu as well." 12. It is important to note that judgment rendered in Surya Dev Rai's case was subsequently overruled on a different point in case of JKJ Soft JKJ/30084 Radhey Shyam & Anr. v. Chhabi Nath & Anr. [ (2015) 5 SCC 423 ] wherein, the three Judge Bench while hearing a reference to consider the correctness of law laid down in Surya Dev Rai's case in paragraph 27 concluded as under:- "Thus, 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 view 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." 13. The contrary view in Surya Dev Rai's case was overruled to the aforesaid extent. 14. We are also in agreement with the view 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." 13. The contrary view in Surya Dev Rai's case was overruled to the aforesaid extent. 14. From the careful reading of the judgment aforesaid, it is abundantly clear that before the Reference Bench, the question was only with regard to amenability of the judicial orders of the Civil Court to the writ jurisdiction under Article 226 of the Constitution but the reasoning given in the judgment in support of the answer to the question referred would apply by analogy to the judicial orders passed by the Criminal Courts as well. It cannot be denied that the Criminal Courts constituted under the Code of Criminal Procedure also perform the judicial functions. That being the position, the orders impugned in the petition before the Single Bench being orders passed by the Criminal Courts are in exercise of judicial authority and, therefore, may not be amenable to the writ jurisdiction of the High Court. For this added reason also, it can be safely held that the judgment impugned in this appeal is the one passed by the learned Single Judge in exercise of its powers of superintendence. That being the settled position of law, the appeal under clause 12 of the Letters Patent cannot be held maintainable. 15. In the result, the appeal is dismissed as not maintainable.