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2020 Supreme(Guj) 435
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
ASHOKKUMAR C. JOSHI, J.
Ilias Gulam Rasul Mehsaniya – Appellant
Versus
State Of Gujarat & others – Respondents
R/Special Criminal Application No. 1567 of 2015
Decided on : 11-06-2020
Advocate Appeared:
For the Appellant : Mr Ankit Y Bachani
For the Respondent: Mr. Maulik Nanavati, Mr. Manan Mehta, Adv
Point of Law:
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.
Headnote:
Indian Penal Code - Sections 406, 420, 465, 468, 474 and 506(2) - Petitioner waives service of rule on behalf of respondent be pleased for issuance of writ of mandamus and/or any other appropriate writ order - While considering bail application in connection with said offence accused persons were directed to be enlarged on regular bail each for sum with surety for like amount however with a condition of surrendering their passport to trial court with a specific rider that without permission of their passport shall not be released - Accused persons being dissatisfied with said condition initially approached to trial court at request to release their passport especially by deleting condition clause which was imposed while granting bail - Court while entertaining their said request observed that condition of bail was put-up upon by Humble High Court therefore considering citation of Hon'ble Supreme Court relied on by APP at relevant point of time, and it was also categorically observed that petitioners would be at liberty to move Hon'ble Supreme Court for waiving of said condition - Held, Orders of civil court stand on different footing from orders of authorities or Tribunals or courts other than judicial/civil courts - While appellate or revisional jurisdiction is regulated by statutes power of superintendence Article is constitutional - Expression inferior court is not referable to judicial courts as rightly observed in referring order - Court observed judgment that distinction between Articles stood almost obliterate - Judgment distinction in two articles has been noted - In observation that scope of Article was obliterated was not correct as rightly observed by referring Bench in quoted above - Court make it clear that though despite curtailment of revisional jurisdiction Act jurisdiction of High Court Article remains unaffected has been wrongly assumed in certain quarters that said jurisdiction has been expanded - Petition disallowed (Para 22)
Facts of the Case:
Accused - Atikbhai Rafikbhai Muman (Nedariya), Imranbhai Mehmudbhai Muman (Nedariya), Irfanbhai Memudbhai Muman (Nedariya) and Arhadbhai Memudbhai Muman (Nedariya) were booked with I Crime Register No.83 of 2010 for the offence punishable under Sections 406, 420, 465, 468, 474 and 506(2) of the Indian Penal Code registered at Chhapi Police Station. While considering the bail application in connection with the said offence, the accused persons were directed to be enlarged on regular bail, each for the sum of Rs.25,000/- with surety for the like amount, however, with a condition of surrendering their passport to the learned trial court with a specific rider that without permission of the learned trial court, their passport shall not be released.
Finding of the Court:
Orders of civil court stand on different footing from orders of authorities or Tribunals or courts other than judicial/civil courts - While appellate or revisional jurisdiction is regulated by statutes power of superintendence Article is constitutional - Expression inferior court is not referable to judicial courts as rightly observed in referring order - Court observed judgment that distinction between Articles stood almost obliterate - Judgment distinction in two articles has been noted - In observation that scope of Article was obliterated was not correct as rightly observed by referring Bench in quoted above - Court make it clear that though despite curtailment of revisional jurisdiction Act jurisdiction of High Court Article remains unaffected has been wrongly assumed in certain quarters that said jurisdiction has been expanded.
Result: Petition disallowed
JUDGMENT :
1. Rule. Learned APP waives service of rule on behalf of respondent-State and Maulik Nanavati, learned advocate waives service of rule on behalf of respondent Nos.2 to 5.
2. Heard learned advocate Mr. Ankit Y. Bachani for the petitioner, learned advocate Mr. Maulik Nanavati for Nanavati & Company for respondent Nos.2 to 5 and learned APP Mr. Manan Mehta for the respondent No.1 State.
3. By way of present Special Criminal Application, the petitioner – original complainant has prayed for following reliefs:-
(A) YOUR LORDSHIP be pleased to admit and allow the present Special Criminal Application;
(B) YOUR LORDSHIP be pleased for issuance of writ of mandamus and/or any other appropriate writ, order or direction in the nature of mandamus quashing and setting aside the order dated 19-12-2014 passed by Sessions Court and thereby, maintain the order of J.M.F.C., as well as, preserve the condition clause no.3 and restrain the respondent no.2 to 5 from violating the said condition, in the interest of justice in the interest of justice;
(C) YOUR LORDSHIP be pleased to stay the proceedings of order dated 19-12-2014, till the pending admission, hearing and final disposal of the present petition;”
4. Brief facts of petition in narrow compass can be summarized as under:
4.1 The accused – Atikbhai Rafikbhai Muman (Nedariya), Imranbhai Mehmudbhai Muman (Nedariya), Irfanbhai Memudbhai Muman (Nedariya) and Arhadbhai Memudbhai Muman (Nedariya) were booked with I Crime Register No.83 of 2010 for the offence punishable under Sections 406, 420, 465, 468, 474 and 506(2) of the Indian Penal Code registered at Chhapi Police Station. While considering the bail application in connection with the said offence, the accused persons were directed to be enlarged on regular bail, each for the sum of Rs.25,000/- with surety for the like amount, however, with a condition of surrendering their passport to the learned trial court with a specific rider that without permission of the learned trial court, their passport shall not be released.
4.2 The accused persons, being dissatisfied with the said condition, initially, approached to the learned trial court at Vadgam, District : Banaskantha with a request to release their passport, especially by deleting the condition clause No.3, which was imposed while granting bail. The learned trial court, while entertaining their said request, observed that the condition of bail was put-up upon by Hon'ble High Court therefore, considering the citation of the Hon'ble Supreme Court relied on by the learned APP at the relevant point of time, and it was also categorically observed that the petitioners would be at liberty to move the Hon'ble Supreme Court for waiving of the said condition. The learned trial court also observed that the petitioners would be at liberty to move a fresh application to the court concerned and the court concerned would decide the application independently without taking into account the objections of the CBI. On that basis, the learned trial court rejected the application for releasing the passport in respect of deletion of condition clause No.3.
4.3 Being aggrieved and dissatisfied with the said decision of the learned trial court, the accused persons moved before the learned Sessions Court at Palanpur. The learned Sessions Court, while setting aside the order of the learned trial court, more particularly while dealing with the condition of not returning back the passport without order of the court concerned, observed and directed the learned trial court to hand over the passport, if it is in their custody, to all the accused and also to maintain certified copy of the said record, instead of original passport.
4.4 Aggrieved with the said decision of the learned Sessions Court, the present Special Criminal Application has been filed before this Court by original complainant.
5. In support of the present application, the petitioner – original complainant has urged that, he is aged about 60 years, he is a b
