Order :

Heard on admission.

This appeal is directed against order dated 16/08/2021 passed by the learned Single Judge whereby objection with regard to maintainability of the petition under Article 226 of the Constitution of India in so far as prayer for issuance of writ of certiorari against judicial order is concerned, has been sustained and the petitioner has been directed to amend the prayer clause by deleting prayer for issuance of writ of certiorari.

2. Learned counsel for the appellant would argue that the learned Single Judge wrongly placed reliance upon the decision of the Supreme Court in the case of Radhey Shyam and anr. v. Chhabi Nath and ors., (2015) 5 SCC 423 as the said decision is distinguishable. According to learned counsel for the appellant, the said judgment is an authority for the proposition of law that against an order of the Civil Court, writ of certiorari will not lie under Article 226 of the Constitution of India whereas in the present case, order passed by the Criminal Court is challenged and prayer for writ of certiorari has been sought.

3. Learned counsel for the appellant would further argue that since registration of FIR affects right of liberty and the appellant has assailed the order as violative of its fundamental right guaranteed under Article 21 of the Constitution of India, writ of certiorari would be available. Lastly, it is submitted that as the petitioner has prayed both for writ of certiorari and also seeks to invoke supervisory jurisdiction, the objection was liable to be rejected as the petition is otherwise maintainable under Article 227 of the Constitution of India.

4. Submission of learned counsel for the appellant that the principles laid down in the case of Radhey Shyam (supra) will not apply in a case where the order is passed by the Criminal Courts and will be applicable only when orders passed by the Civil Court, cannot be accepted in view of what has been stated in the aforesaid decision, relevant part of which we shall hereinafter referred to.

In the case of Radhey Shyam (supra), the Larger Bench of the Supreme Court considered correctness of the law laid down in the case of Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675. The issue involved maintainability of the petition seeking issuance of writ of certiorari against an order passed by the Civil Court.

While tracing the history of prerogative writs, Constitutional provisions and long line decisions of the Supreme Court, Their Lordships observed –

“11. It is necessary to clarify that expression "judicial acts" is not meant to refer to judicial orders of civil courts as the matter before this Court arose out of the order of Election Tribunal and no direct decision of this Court, except Surya Dev Rai (supra), has been brought to our notice where writ of certiorari may have been issued against an order of a judicial court. In fact, when the question as to scope of jurisdiction arose in subsequent decisions, it was clarified that orders of judicial courts stood on different footing from the quasijudicial orders of authorities or tribunals.”

5. The aforesaid observations are not confined to the order passed by the Civil Court only but Their Lordships referred to judicial Courts. It was further observed –

“16. This Court then dealt with the legal position in England on the question of scope of writ of certiorari against a judicial order. Noting that the writ of certiorari did not lie against a judicial order, it was observed : [ Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1 ].

"63. Whilst we are dealing with this aspect of the matter, we may incidentally refer to the relevant observations made by Halsbury on this point. "In the case of judgments of inferior courts of civil jurisdiction," says Halsbury in the footnote,-

'it has been suggested that certiorari might be granted to quash them for want of jurisdiction [Kemp v. Balne (1844), 1 Dow. & L. 885, at p. 887], inasmuch as an error did not lie upon that ground. But t