Gauhati High Court
Smti Rumi Kalita vs The State Of Assam And 2 Ors on 6 October, 2020
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/5
GAHC010098672020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA 83/2020
1:SMTI RUMI KALITA
D/O SRI NARAYAN KALITA,
W/O SRI RANJIT DAS,
R/O VILL. AND P.O. DHARAPUR,
P.S. AZARA, GUWAHATI 781017,
DIST. KAMRUP (M), ASSAM,
MOBILE NO. 9706601331 D.O.B. 01-12-1988
VERSUS
1:THE STATE OF ASSAM AND 2 ORS
REPRESENTED BY THE COMMISSIONER AND SECY. TO THE GOVT. OF
ASSAM, DEPTT. OF HOME, DISPUR, GUWAHATI 781006
2:THE COMMISSIONER OF POLICE
KAMRUP (M)
GUWAHATI 781007
3:RANJIT DAS
S/O LATE DEHIRAM DAS
PRESENTLY RESIDING AT ASEB COLONY
NARENGI
TYPE 3/04/G.F.I.
P.O. AND P.S. NOONMATI
GUWAHATI 781026
DIST. KAMRUP (M)
ASSAM
MOBILE NO. 995715297
Advocate for the Petitioner : MR. B D KONWAR SR. ADV.
Advocate for the Respondent : GA, ASSAM
Page No.# 2/5
BEFORE
HON'BLE THE CHIEF JUSTICE (ACTING) MR. N. KOTISWAR SINGH
HON'BLE MR. JUSTICE MANISH CHOUDHURY
ORDER
06.10.2020 [N. Kotiswar Singh, CJ(Acting)] The Court proceeding have been conducted through video conference.
2. Heard Mr. B.D. Konwar, learned Senior counsel for the appellant. Also heard Mr. R.K. Dev Choudhury, learned Senior Govt. Advocate, Assam, appearing for respondent Nos.1--2.
3. Issue notice, returnable on 12.10.2020. No formal steps are called for in respect of respondent Nos.1 and 2, as they are duly represented. However, extra copies of the Memo of Appeal be furnished to the learned counsel appearing for the respondents.
4. Appellant to take steps for service of notice upon the respondent No.3 by registered post with A/D. Additionally, dasti service is also permitted in respect of the respondent No.3.
5. From the earlier proceedings of the case, it appears that there was an issue as to whether this writ appeal is maintainable against the order passed by the learned Single Judge in WP(Crl.) No.8/2020, which was taken up as a habeas corpus matter.
6. Mr. Konwar, learned Senior counsel for the appellant as well as Mr. Dev Choudhury, learned Senior Govt. Advocate, Assam, both the parties have relied on the decision of the Hon'ble Supreme Court rendered in Ram Kishan Fauji Vs. State of Haryana and Ors. 1, on the basis of which it has been submitted that the present appeal is perhaps maintainable. 1 (2017) 5 SCC 533 Page No.# 3/5
7. We have also perused the aforesaid judgment. In paragraph 42 of the said judgment the Hon'ble Supreme Court observed as under:-
"42. At this state, it is extremely necessary to cull out the conclusions which the deductible from the aforesaid pronouncements. They are:
42.1 An appeal shall lie from the judgment of a Single Judge to a Division Bench of the High Court if it is so permitted within the ambit and sweep of the Letters Patent.
42.2 The power conferred on the High Court by the Letters Patent can be abolished or curtailed by the competent legislature by bringing appropriate legislation.
42.3 A writ petition which assails the order of a civil court in the High Court has to be understood, in all circumstances, to be a challenge under Article 227 of the Constitution and determination by the High Court under the said article and, hence, no intra-court appeal is entertainable.
42.4 The tenability of intra-court appeal will depend upon the Bench adjudicating the lis as to how it understands and appreciates the order passed by the learned Single Judge. There cannot be a straitjacket formula for the same."
8. We have also noted the observation made by the Hon'ble Supreme Court in paragraph 46 of the aforesaid decision in Ram Kishan Fauji (supra) by holding that the crux of the matter is whether the Court has exercised its civil jurisdiction or criminal jurisdiction which would ultimately decide the nature of the appellate forum. Relevant portion of the aforesaid paragraph is reproduced hereinbelow:-
"46. The crux of the present matter is whether the learned Single Judge has exercised "civil jurisdiction" or "criminal jurisdiction". In that regard, Mr Visen has strenuously contended that the Lokayukta is a quasi-judicial authority and the proceeding being quasi-judicial in nature, it cannot be regarded as one relatable to criminal jurisdiction, but it may be treated as a different kind or category of civil proceeding. His argument is supported by the Full Bench decision of the High Court of Andhra Pradesh in Gangaram Kandaram v. Sunder Chikha Amin [Gangaram Kandaram v. Sunder Chikha Amin, 2000 SCC OnLine AP 119 : (2000) 2 An LT 448] . In the Page No.# 4/5 said case, a writ petition was filed for issue of a writ of mandamus to declare the action of the respondents in registering crimes under Sections 420 and 406 of the Penal Code against the writ petitioner in FIRs Nos. 14, 137 and 77 of 1997 as illegal and to quash the same. The learned Single Judge had allowed the writ petition by order dated 6-8-1997 and quashed the FIRs. The order passed by the learned Single Judge was assailed by the seventh respondent in intra-court appeal. The Full Bench posed the following question: (Gangaram case [Gangaram Kandaram v. Sunder Chikha Amin, 2000 SCC OnLine AP 119 : (2000) 2 An LT 448] , SCC OnLine AP para 2) "2. ... '... (ii) Whether appeal under Clause 15 of the Letters Patent of the Court lies against the judgment in such a case. In other words, whether a proceeding for quashing of investigation in a criminal case under Article 226 of the Constitution of India is a civil proceeding and the judgment as above is a judgment in a civil proceeding in exercise of the original jurisdiction of the Court for the purposes of appeal under Clause 15 of the Letters Patent.'"
9. Further it has been mentioned by the Hon'ble Supreme Court in paragraph 61 of the aforesaid decision thereof that the deciding factor as to whether an appeal should lie or not would depend on the nature of the proceeding out of which the appeal has arisen, which is reproduced hereinbelow:-
"61. In the case at hand, the writ petition was filed under Article 226 of the Constitution for quashing of the recommendation of the Lokayukta. The said recommendation would have led to launching of criminal prosecution, and, as the factual matrix reveals, FIR was registered and criminal investigation was initiated. The learned Single Judge analysed the report and the ultimate recommendation of the statutory authority and thought it seemly to quash the same and after quashing the same, as he found that FIR had been registered, he annulled it treating the same as a natural consequence. Thus, the effort of the writ petitioner was to avoid a criminal investigation and the final order of the writ court is quashment of the registration of FIR and the subsequent investigation. In such a situation, to hold that the learned Single Judge, in exercise of jurisdiction under Article 226 of the Constitution, has passed an order in a civil proceeding as the order that was challenged was that of the quasi-judicial authority, that is, the Lokayukta, would be conceptually fallacious. It is because what matters is the nature of the proceeding, and that is the litmus test."
Page No.# 5/5
10. This writ appeal arises out of an order passed by the learned Single Judge in a matter relating to custody of a minor child which the appellant (mother of the child) is seeking and the child is apparently in the custody of the father (respondent No.3) of the child living with his grandmother (mother-in-law of the appellant), elder brothers and sister-in-laws of the respondent No.3. Thus, the dispuste appears to be more of a civil in nature rather than criminal.
11. Accordingly, we are also of the tentative view that the present appeal will lie.
12. As such, we admit this appeal and issue notice upon the respondents.
13. This Court proposes to settle this jurisdictional issue finally upon hearing the respondent No.3 on his appearance on the next date.
14. Since the learned Senior counsel for the appellant has prayed for access to the child of 6 years during the pendency of this proceeding, we are of the view that this issue can be considered on the next returnable date.
15. List accordingly on 12.10.2020.
Sd/- Manish Choudhury Sd/- N. Kotiswar Singh
JUDGE CHIEF JUSTICE (ACTING)
Comparing Assistant