Andhra HC (Pre-Telangana)
Mohd. Rasool Khan vs State Of A.P., Home Department on 24 November, 2003
Equivalent citations: 2004(2)ALT57
ORDER V.V.S. Rao, J.
1. The petitioner is a resident of Hyderabad. He filed the writ petition seeking the following relief:
...........................This Hon'ble Court may be pleased to issue notice and call for records and set aside conviction an sentence of six months R.I. and fine of Rs. 1,000/- for the offence under Section 304-A IPC and fine of Rs. 500/- for the offence under Section 337 IPC in the C.C.No. 276 of 1999 of the file of II Metropolitan Magistrate, Hyderabad, ultimately Confirmed in Crl.R.C.No. 207 of 2001 vide Order dated 15-12-2002 on the file of this Hon'ble Court by issuing a writ certiorari or any other appropriate writ or order or direction as the Hon'ble Court deems fit and proper...............
2. In a nutshell, the fact of the matter is that the petitioner was charged with an offence under Section 304-A and 337 of the Indian Penal Code, 1960 (IPC). He was convicted and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/- for the offence under Section 304-A IPC and sentenced to pay a fine of Rs. 500/- for the offence under Section 337 IPC. The judgment of the learned II Additional Magistrate who tried the petitioner was assailed before the learned III Additional Metropolitan Sessions Judge-cum-Special Judge for the trial of cases under the Essential commodities Act in Criminal Appeal No. 209 of 2000. The appellate Court confirmed the conviction, but reduced the sentence to six months imprisonment. The petitioner's Criminal Revision Case No. 207 of 2001 before this Court was dismissed confirming the judgment of the appellate Court. But still the petitioner filed the writ petition raising the ground that all the Courts have not dealt with the petitioner's case properly and did not appreciate the evidence on record.
3. When the writ petition was presented in the Registry on 28-10-2003, the Registry raised the following objection:
..............................The above WPSR sought to be filed, praying this Hon'ble Court to issue notice and call for records and set aside conviction and sentence of six months R.I. and fine of Rs. 1,000/- for the offence under Section 304-A IPC and fine of Rs. 500/- for the offence under Section 337 IPC in C.C.No. 276 of 1999 on the file of II Metropolitan Magistrate, Hyderabad ultimately confirmed in Crl.R.C.No. 207 of 2001 vide Order dated 15-12-2002 on the file of this Hon'ble Court by issuing a writ of certiorari or any other appropriate writ or order of direction as the Hon'ble Court deems fit and proper in the circumstances of the case and to allow the writ petition with costs.
The office returned the case with the following objection:
"Please clarify as to the maintainability of writ when there is an alternative remedy available in Criminal Procedure Code".
The learned counsel for the petition has represented the case with the following endorsement.
'The Criminal Courts have no power to review its own orders under Crl.R.C. As substantial justice is denied to the petitioner, petition under Article 226 of Constitution of India gives powers to adjudicate".
Submitted for orders as to the maintainability of the writ petition.
4. The matter was listed before this Court on 7-11-2003, 10-11-2003 and 11-11-2003. Learned counsel for the petitioner, Sri A. Bichaiah submits that the writ petition is maintainable to agitate the correctness of the judgment of the trial Court, appellate Court as well as High Court in exercise of revisional jurisdiction. He also placed reliance on the judgments in 1937 Calcutta Law Times 925 and Pranakrushna v. Harekrishna, .
5. In exercise of its certiorari jurisdiction, it is always possible for this Court to quash a criminal case pending at the stage of trial. Also it is possible to set aside any judgment of the competent Judicial magistrate of I Class or competent Sessions Court if such judgment is passed without jurisdiction or is in violation of principles of natural justice (See State of M.P. v. Babu Lal, AIR 1977 SC 1718, P.V. Somaraju v. Munsif Magistrate, Bhimavaram, and D. Sambamurthy v. Collector, E.G. Dist., 1979 (2) ALT 105). and paragraph 28 of Vol.1 of Halsbury's Law 4th Edn.).
6. Insofar as challenge to a judgment/ order passed by this Court in exercise of its jurisdiction under Section 397 and 401 of the Code of Criminal Procedure, 1973 is concerned, a writ petition would not lie. The petitioner has a constitutional remedy of approaching the Hon'ble Supreme Court by filing an application under Article 136 of the Constitution of India. Though the power vested in High Court under Article 226 of the Constitution is broad and pervading, while exercising such power, however, the judgment of the High Court in exercise of its constitutional power of statutory power or power rested in the procedural law or special law of inherent power cannot be challenged in a writ petition under Article 226 of the Constitution. It is, however, subject to Clause 15 of the Letters Patent which provides an intra-court appeal against the judgments/orders passed by the learned single judge.
7. In a recent judgment in Rupa Ashok Hurra v. Ashok Hurra, a constitutional Bench of the Supreme Court considered the scope and power under Articles 32, 132, 133,134,136 and 226 of the Constitution to entertain a "curative petition" filed by an aggrieved person seeking, in effect, a rehearing of a case which was already decided. The ratio laid down by the Supreme Court is as follows:
Therefore, on principle, a writ of certiorari cannot be issued to co ordinate courts and a fortiorari to superior courts. Thus a High Court cannot issue a writ to another High Court, nor can one Bench of High Court issue a writ to a different Bench of the same High Court; much less to the Supreme Court. Though, the judgments/orders of High Courts are liable to be corrected by the Supreme Court in its appellate jurisdiction under Articles 132, 133 and 134 as well as under Article 136 of the Constitution, the High Courts are not constituted as inferior courts in our constitutional scheme. Therefore, the Supreme Court would not issue as writ under Article 32 to a High Court Further neither a larger bench of the Supreme Court can issue a writ under. Article 32 of the Constitution to any other Bench of the Supreme Court. Moreover, Article 32 can be invoked only for the purpose of enforcing the fundamental rights conferred in Part III and it is a settled position in law that no judicial order passed by any superior court in judicial proceedings can be said to violate any of the fundamental rights enshrined in Part III. Furthermore, the superior courts of justice do not also fall within the ambit of State or other authorities under Article 12 of the Constitution.
8. In view of the same, it must be held that office objection is correct and the Registry is directed to return the writ petition to the petitioner's counsel.
9. Office objection is answered accordingly.