Patna High Court
Damodar Singh And Ors. vs State Of Bihar And Ors. on 21 May, 1997
Equivalent citations: 1997(2)BLJR1639
ORDER
R.M. Prasad and N.K. Sinha, JJ.
1. The appellants have filed this appeal against the order dated 22-3-1996 passed in Cr. W.J.C No. 84 of 1996 by the learned single Judge of this Court .dismissing the said writ petition.
2. The said writ petition was filed for quashing the entire proceeding of Case No. 844 M/94 initiated under Section 147, Cr.P.C. vide order dated 27-5- 1994, by the Sub-divisional Officer, Manjaul, Begusarai yicspondent No. 2).
3. The Stamp Reporter in the report dated 6-3-1997 has reported that no L.P.A. lies against an order passed by the learned single Judge in Cr.W.J.C. Hence, according to him this L.P.A. is not maintainable.
4. On the question of maintainability, we heard learned Counsel for the appellants, in detail, on 1-5.1997 and reserved the order.
5 learned Counsel for the appellants assailed the correctness of the aforementioned stamp report on the ground that clause 10 of the Letters Patent constituting this Court does not preclude this Court from entertaining appeal against an order passed by the learned single Judge of this Court in its criminal writ jurisdiction. According to him, under Rule 3 of Chapter XXI-C of the Patna High Court Rules (in short 'the Rules'), an application under Article 226 of the Constitution is to be registered either as civil writ jurisdiction cases (Cr.W.J.C.) or criminal writ jurisdiction cases (Cr.W.J.C.)/ as the case may be. As such, there is no difference in maintaining a letters patent appeal against an order passed by the learned single Judge in the writ jurisdiction of this Court. In fact, the jurisdiction is with respect to the writ application under Article 226 of the Constitution and there cannot be any distinction made between the civil writ jurisdiction cases and criminal writ jurisdiction cases for the purpose of filing appeal under clause 10 of the Letters Patent constituting this Court contained in Appendix E of the Rules. In this regard, he referred to a Divisional Bench judgment of this Court in the case of M/s. Ashoka & Company v. The State of Bihar, reported in Pat. LR 1996 Patna 106, in which it has been held that writ under Article 226 of the Constitution is an extraordinary jurisdiction of this Court to issue high prerogative writs for grant of relief in special cases, to persons aggrieved by an action of authorities statutory or public officers.
6. It is true that in the said case it has also been held that the jurisdiction is undoubtedly special and exclusive, but on that account the nature of the proceeding in which it is exercised is not altered. It is also true that in the said case the Divisional Bench has held that criminal writ will be maintainable mostly in those cases, in which the order can be challenged in revisional jurisdiction of the High Court or under Section 482 of the Cr.P.C. or preventive detention cases. But from the decision of the Supreme Court in the case of Narayan Roy v. Ishwar Lai, quoted in paragraph 10 of the said judgment, the distinction between civil, criminal and revenue has been made the Supreme Court. The Supreme Court has held that the character of the proceeding depends not upon the nature of the tribunal which is invested with authority to grant relief, but upon the nature of the right violated and the appropriate relief which may be claimed.
7. Thus, in our opinion, the contention of the learned Counsel for the appellants that no distinction can be made in this Court dealing with a matter in its writ jurisdiction either civil or criminal has got no substance.
8. Clause 10 of the Letters Patent provides that an appeal shall lie to this Court from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order) made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of the revisional jurisdiction, and not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act, in the exercise of criminal jurisdiction of one Judge of this Court or one Judge of any division Court, pursuant to Section 108 of the Government of India Act. In this regard it is also pertinent to quote clause 18 of the Letters Patent which runs as follows;
18. and we do further order in that there shall be no appeal to the High Court of Judicature at Patna from any sentence or order passed or made by the Courts of original criminal jurisdiction which may be constituted by one or more Judges of the said High Court. But it shall be at the discretion of any such Court to reserve any point or points of law for the opinion of the said High Court.
9. Said clause 18 clearly bars from maintaining an appeal in the High Court from any sentence or order passed jurisdiction which may be constituted by one or more Judges of the High Court. It only gives discretion to any such Court to reserve any point or points of law for the opinion of any High Court.
There cannot be any doubt that the impugned order has been passed by the learned single Judge while exercising the original criminal jurisdiction vested in him under Article 226 of the Constitution and, as such, appeal against the said order cannot be held to be maintainable.
10. This appeal is, thus, dismissed as not maintainable.