IMPORTANT POINT
If relief asked for in writ petition against exercise of power under criminal law or proceeding would be criminal proceeding, or proceeding if carried to its conclusion ultimately may result in sentence of death or imprisonment or fine or forfeiture of property, in such case, Letters Patent Appeal/Writ Appeal not maintainable.

Pradip Mohanty, J.—Is the instant writ appeal, filed against the judgment of the learned Single Judge rendered in a writ petition in which direction for further investigation in a criminal case was sought for, maintainable? This is the short question required to be answered in the reference.

2. When the writ appeal came up for hearing before a Division Bench of this Court, the State Government raised serious objection regarding its maintainability. Feeling that the question of maintainability may have a far reaching effect, the Division Bench was inclined to examine the matter in depth and accordingly vide order dated 20.08.2014 appointed Mr. Goutam Mishra as amicus curiae to assist the Court. As the learned amicus curiae apprised the Court that there are divergent views by different High Courts on the issue, vide order dated 11.09.2014 the Division Bench of this Court referred the matter to the Full Bench. Hence, this Full Bench has been constituted and called upon to answer the following question:

“Whether any decision rendered by a Single Judge of this Court vis-à-vis a criminal matter in exercise of the writ jurisdiction under Article 226 of the Constitution of India is appealable under Clause-10 of the Letters Patent before a Division bench of this Court or not?”

3. While Mr. Sarkar, learned counsel for the appellant contended that an appeal under clause 10 of the Letters Patent is maintainable against a judgment passed by the learned Single Judge in a petition under Article 226, according to Mr. Misra, learned Advocate General appearing for the State an appeal under clause 10 of Letters Patent Appeal is not maintainable against the judgment of learned Single Judge even when passed under Article 226, if the power is exercised under criminal jurisdiction.

4. It is worthwhile to mention here that at the commencement of the 20th Century, Bengal Presidency was a vast province including Assam, Bihar and Orissa. Administrative exigencies required separation of such areas which originally did not form part of Bengal. Bihar and Orissa were separated from Bengal Presidency to form new province of Bihar. By a notification dated 22.03.1912 new province of Bihar and Orissa was formed. However, still the said new province of Bihar and Orissa was under the jurisdiction of Calcutta High Court. On 09.02.1916, in exercise of the powers under section 113 of the Government of India Act, 1915, the King of England issued Letters Patent constituting High Court of Patna. Orissa was placed under the jurisdiction of Patna High Court..On 01.04.1936 Orissa was made a separate province but no separate High Court was provided for it. In exercise of the powers conferred by Section 229(1) of the Government of India Act, 1935, the Government of India, on 30.04.1948, issued Orissa High Court Order, 1948 declaring that from 05.07.1948 there shall be a Court of the Province of Orissa which shall be a Court of Record. Subsequently by Orissa High Court (Amendment) Order, 1948 issued on 08.06.1948, the date of establishment of High Court was changed from 05.07.1948 to 26.07.1948. Hence, on 26.07.1948 Orissa High Court was inaugurated by H.J.Kania, the then Chief Justice of the Federal Court of India. Since the bifurcation of Orissa High Court, the Letters Patent Appeals (present writ appeals) are being filed under Clause 10 of the Letters Patent Constituting the High Court of Judicature at Patna read with Article 4 of the Orissa High Court (Amendment) Order, 1948, which provided inter alia that the law in force regarding practice and procedure in the High Court in Patna shall be applicable to the Orissa High Court.

5. Clause-10 of the Letters Patent Constituting the High Court of Judicature at Patna, under which the writ appeal has been filed, reads thus:

“Clause-10. And we do further ordain that an appeal shall lie to the said High Court of Judicature at Patna from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in r