1998 Supreme(Guj) 551

Gujarat High Court
Judgename :A.M.KAPADIA, C.K.THAKKER
SANJEEV RAJENDRABHAI BHATT - Appellant
Versus
STATE - Respondent
L.P.A. 906 of 1998
Decided On : 10/05/1998

Headnote:(a) Constitution of India, 1950 - Arts. 226 & 227 - Letters Patent, Clause 15 - Appeal under - Maintainability - Appeal is maintainable if judgment is one under Art. 226 & not where it is made under Art. 227 - However in case of Judgment appeal against both under Arts. 226 & 227, appeal would be maintainable if substantial part of order is under Art. 226.

       From the decision in Umaji Keshao vs. Radhikabai, AIR 1986 SC 1272, in Courts judgment the following principles relevant to the case on hand appear to Court to be well settled;

       (i)

       In case of a `judgment rendered by a Single Judge of the High Court in exercise of powers under Art. 226 of the Constitution an intra-Court appeal would lie;

       (ii)

       If a `judgment is rendered by a Single Judge of the High Court in exercise of powers of superintendence under Art. 227 of the Constitution an intra-Court appeal would not lie, and

       (iii)

       No appeal would lie from a judgment passed or order made in exercise of criminal jurisdiction.

       [Para 17]

       In Court opinion, where the facts justify a party in filing an application either under Art. 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 was being made under Art. 226, and if in deciding the matter, in the final order the Court gives ancillary directions which may pertain to Art. 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 Art. 226.

       [Para 19]

       (b) Constitution of India, 1950 - Art. 226 - Powers under - Exercise of - Availability of alternative remedy is no bar on exercise of extra ordinary powers under.

       It is well settled that availability of alternative remedy is no bar to exercise of extra ordinary powers by a High Court under Art. 226 of the Constitution. Even if an alternative and efficacious remedy is available to the aggrieved party, he can approach a High Court by filing a petition. It also cannot be disputed that the High Court can entertain a petition and can grant appropriate relief to the applicant notwithstanding availability of other remedy. Availability of such remedy is but one of the considerations which the Court may taken into account while exercising extra ordinary powers under Art. 226.

       [Para 39]

       (c) Letters Patent Appeal - Clause 15 - Order of Single Judge that Court has no territorial jurisdiction in the matter - Appeal against - Held, proceedings though under Art. 226 of Constitution but arises out of an order made in exercise of power under Criminal Proceedure is still a criminal proceedings within the Clause 15 of Letters Patent & covered by the bracketed portion of the clause which expressly bars an appeal against the order - Court accordingly held, that Letters Patent was not maintainable & it was liable to be dismissed.

       In Court considered opinion, in the instant case, the proceedings can be said to be criminal proceedings inasmuch as, carried to its conclusion, they may result into imprisonment fine etc. as observed by the Supreme Court in Narayana Row.

       [Para 80]

       From the totality of facts and circumstances, Court has no hesitation in holding that the learned Single Judge has passed an order in exercise of criminal jurisdiction. At the cost of repetition, we reiterate what we have already stated earlier that the proceedings were of a criminal nature. Whether a criminal Court takes cognizance of an offence or sends a complaint for investigation under Sub-sec. (3) of Sec. 156 of the Code of Criminal Procedure, 1973 does not make difference so far as the nature of proceedings is concerned. Even if cognizance is not taken, that fact would not take out the case from the perview of criminal jurisdiction.

       [Para 81]

       A proceeding under Art. 226 of the constitution arising from an order passed or made by a Court in exercise or purported exercise of power under the Code of Criminal Procedure is still a `criminal proceeding within the meaning of Clause 15 of the Letters Patent. A proceeding seeking to avoid the consequences of a criminal proceeding initiated under the Code of Criminal Procedure will continue to remain `criminal proceeding covered by the bracketed portion of Clause 15 of the Letters Patent.

       [Para 82]

       As Clause 15 of the Letters Patent expressly bars an appeal against the order passed by a Single Judge of the High Court in exercise of criminal jurisdiction, LPAs are not maintainable and deserve to be dismissed only on that ground. Court accordingly hold that the Letters Patent Appeals are not maintainable at law and they are liable to be dismissed.

       [Para 83]

       (d) Letters Patent Appeal - Clause 15 - Dismissal of petitions by Single Judge holding that Court has no territorial jurisdiction in the matter - Validity - In the instant case complaint was filed in the Court of CJM Pali (Rajasthan) - An order under Sec. 156 (3) CrPC was made by him which was later modified by Addl. Sessions Judge & C.R. No. 603/96 was registered at Pali - In the fact Single Judge was justified in holding that no cause of action either as a whole or in part can be said to have arisen within the territorial jurisdiction of this Court - Consequently Single Judge committed no error in dismissing petitions on ground of want of territorial jurisdiction of the Court - Order of Single Judge upheld.

       In the instant case, a complaint was filed by Sumersingh Rajpurohit in the Court of Chief Judicial Magistrate, Pali (Rajasthan), an order under Sub-sec. (3) of Sec. 156 of the Code of Criminal Procedure was also made by the Chief Judicial Magistrate, Pali which was modified by the Additional Sessions Judge and C.R. No. 603 of 1996 was registered at Pali. Hence, no cause of action, either as a whole or in part can be said to have arisen within the territorial jurisdiction of this Court and the learned Single judge has not committed any error of law in dismissing both the petitions on the ground of want of territorial jurisdiction of this Court. Court, therefore, confirm the said decision.

       [Para 107]