Calcutta High Court (Appellete Side)
Indrani Chakraborty vs State Of West Bengal & Ors on 8 September, 2014
Author: Dipankar Datta
Bench: Dipankar Datta
1
08.09.2014 W.P. No.7378 (W) of 2014
Indrani Chakraborty
vs.
State of West Bengal & ors.
Mr. Kishore Datta
Ms. Sumita Shaw
....for the petitioner.
Mr. Amitesh Banerjee
Ms. Munmun Tiwary
....for the respondents 1 to 3
Mr. Debabrata Saha Roy
Mr. Rajesh Upadhyay
....for the respondent 6
Mr. Sandipan Ganguly
Mr. Arijit Ghosh
....for the respondent 7
CHALLENGE:
1. This writ petition is directed against an order dated
December 6, 2013 passed by the Chief Judicial
Magistrate, Barasat (hereafter the CJM) whereby he
discharged the respondents 6 and 7 from G.R. 2116 of
2013, arising out of Baguiati Police Station FIR No.
258/13 dated June 1, 2013 under Sections
447/323/354/506, Indian Penal Code (hereafter the
IPC), upon considering a supplementary charge-sheet
filed by the respondent 5, the investigating officer.
2
ISSUES:
2. The two preliminary related issues that arise for a
decision here are, (i) whether a writ petition that is
directed against an order passed by a judicial magistrate
in exercise of judicial functions, would be maintainable
and (ii) whether in view of the remedies available to the
petitioner under the provisions of the Code of Criminal
Procedure (hereafter the Cr.P.C.), the writ petition
should at all be entertained.
FACTS
3. A written complaint dated May 31, 2013 was lodged by the petitioner before the Officer-in-Charge, Baguiati Police Station giving rise to the aforesaid FIR. Bare perusal of the complaint would reveal an allegation that the respondents 6 and 7, who are attached to the State Police Force, by exerting influence as police officers and threatening to implicate the petitioner in false cases had forced her to sign a development agreement for benefiting the respondent 8 and in course thereof assaulted and molested her. On surrender before the CJM, the respondents 6 to 8 were taken in custody and subsequently released on bail. The FIR was investigated by the respondent 5, and on completion of investigation police report under Section 173(2) of the Cr.P.C. was filed before the CJM against the respondents 6 to 8 vide charge-sheet bearing no. 334/13 for commission of offences under Sections 447/325/354/506/34, IPC. By an order dated September 9, 2013, the CJM took 3 cognizance of the offence pertaining to GR 2116/2013. However, all on a sudden, November 30, 2013 to be precise, the respondent 5 filed a second charge-sheet under Section 173 Cr.P.C. (bearing no. 524/13) before the CJM seeking to implicate only the respondent 8 and purporting to discharge respondents 6 and 7 of the alleged offence. The second charge-sheet records, inter alia, as follows:
"As per order of my superior and from the statement of available witnesses and other relevant facts collected during the subsequent phase of investigation that a prima facie charge as revealed against R. Vinod Kumar and Papindar Singh Randhawa no way stands as such no prima facie charge has yet been established so that both the accd. persons can be sent up for trial. Therefore, under the present circumstances just to avoiding miscarriage of justice may happened. I do not have any other option but to sent only Debobrata Baidya as shown accused of this case for trial and consequently, I do not sent the accd. R. Vinod Kumar and Papinder Singh Randhawa up for trial as no prima facie charge established against them. They may kindly be discharged from the case."
The order dated December 6, 2013 passed by the CJM, which is impugned in this writ petition, is reproduced below:
"Accd: (1) R. Vinod Kumar is on C.B. Accd: (1) Papinder Singh (2) Debabrata Baidya are on .....Bail.
to 13.02.2014 for appearance and copy.
Later - Received Supplementary CS - No: 524/13 dt. 30.11.2013 u/s - 447/323/354/506 I.P.C. Considering all the materials as sent by I/O u/s - 173 (5) Cr.P.C.
Let it be kept with the record.
Seen the supplimentary CS. Hd. Ld. A.P.P. who has submitted that 02 (two) accd: persons namely (1) Binod Kr. Nayer @ R. Vinod Kumar and (2) Papinder Singh 4 Randhawa may be discharged from this case. Considered.
Let the above named two accused persons be discharged.
***."
ARGUMENTS FOR THE PETITIONER
4. On the question of maintainability of the writ petition, Mr. Kishore Datta, learned advocate (now senior advocate) argued that (a) this is a case of improper exercise of power of investigation, since (b) Section 173 of the Cr.P.C. does not permit investigation after submission of a charge-sheet, unless the relevant magistrate permits so in terms of sub-section (8) thereof, as a result which (c) the present complainant has become a victim covered by Article 21 of the Constitution, and (d) that since a writ of certiorari could be issued if an inferior Court acts without or in excess of jurisdiction, (e) the revisional and inherent powers of the High Court under Sections 401 and 482, Cr.P.C. respectively cannot be construed as a fetter for exercise of Article 226 jurisdiction by the High Court. He, accordingly, submitted that the High Court under Article 226 can most certainly intervene in a matter of this kind.
4.1. Reliance was placed by Mr. Datta on T.T Antony v. State of Kerala, (2001) 6 SCC 181. There, two FIRs had been lodged. Upon whether there can be a 2nd FIR, the Court citing Emperor v. Khwaja Nazir Ahmad, AIR 1945 PC 18, held:
"Where the police transgresses its statutory power of investigation the High Court under Section 482 CrPC or Article 226/227 of the Constitution and this Court in 5 an appropriate case can interdict the investigation to prevent abuse of the process of the court or otherwise to secure the ends of justice."
4.2. Referring to Section 173(8), Cr.P.C. providing the power to the police to conduct 'further investigation', the following passage from T.T Antony (supra) was cited:
"The scheme of CrPC is that an officer in charge of a police station has to commence investigation as provided in Section 156 or 157 of CrPC ... and forward his report to the Magistrate concerned under Section 173(2) of CrPC. However, even after filing such a report, if he comes into possession of further information or material, he need not register a fresh FIR; he is empowered to make further investigation, normally with the leave of the court, and where during further investigation he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports; this is the import of sub-section (8) of Section 173 CrPC".
4.3. It was further contended, relying on Babubhai v. State of Gujarat, (2010) 12 SCC 254, that if the investigation is tainted, then the charge-sheet is inconsequential. 4.4. Relying on Dwarka Nath v. Income-Tax Officer, AIR 1966 SC 81, Mr. Datta urged that a writ of certiorari can be issued only to quash a judicial or a quasi-judicial act and not an administrative act and hence improper exercise of jurisdiction by the magistrate would be covered and the order may be quashed in exercise of writ powers.
4.5. Mr. Datta further submitted that the Fundamental Rights (here Art. 21) are at the highest pedestal and even the High Court cannot ask the litigant to approach under Section 482, Cr.P.C. when an approach under Article 226 is made.
64.6. The decision of this Court in K.L. (P) Ltd and ors. v. The Municipal Commissioners of Kamarhati Muncipality & ors, (1985) Cr.L.J. 26 (Cal) was then cited for the proposition that though the Cr.P.C. provided alternate reliefs, it would defeat the ends of justice to dispose of the writ petition in favour of the respondents herein, given the facts and circumstances.
4.7. Nirmal Singh Kahlon v. State of Punjab, (2009) 1 SCC 441 was the decision placed next, where the Supreme Court observed that even the victim has a right to fair trial. According to Mr. Datta, "right to fair trial" has now been extended to "right to fair investigation"; earlier, it was in the context of the accused, but now it has been extended ('equally applicable') to the victim as well. 4.8. Referring to the supplementary charge-sheet, Mr. Datta argued that a clean chit was given by the respondent 5 to two accused persons i.e. respondents 6 and 7, although earlier a charge-sheet (bearing no. 334/13) was filed against them and the CJM had taken cognizance of the offence. Relying on the decision in Hardeep Singh v. State of Punjab, (2009) 16 SCC 785, it was vehemently contended that the respondent 5 in his capacity as investigating officer had transgressed his limits by giving a clean chit, which is the power of a Court or a judicial magistrate and since the subsequent charge-sheet is not in consonance with law, the CJM committed gross errors of jurisdiction in discharging respondents 6 and 7 from the case.
4.9. Umaji Keshao Meshram vs. Radhikabai, (1986) Supp. SCC 401, was then referred to for the proposition that 7 jurisdiction conferred by Articles 226-227 cannot be curtailed by ordinary legislation.
4.10. The "Conclusions" in State of West Bengal vs. The Committee for Protection of Democratic Rights, West Bengal & ors., (2010) 3 SCC 571, were also referred to by Mr. Datta on the scope of fundamental rights in the constitutional scheme.
4.11. The Constitution Bench decision in Naresh Shridhar Mirajkar v. State of Maharshtra, AIR 1967 SC 1, was sought to be distinguished by Mr. Datta. He submitted that the Supreme Court was seized of the question as to whether an order passed by the Bombay High Court in exercise of ordinary original civil jurisdiction could be challenged by a writ petition under Article 32 of the Constitution by a stranger to the proceeding on the ground that his right guaranteed by Article 19 was invaded by the impugned order. The Supreme Court considered the High Court as a superior court and not as an inferior court and held that it had no supervisory jurisdiction over the High Court, which itself had the power to issue certiorari and power to issue such writ includes the power to supervise. In paragraph 53 of the report, the Supreme Court approved that certiorari is generally granted when a court has acted without or in excess of jurisdiction and that in paragraphs 108 and 111 it was accepted that certiorari always lies to courts. It was, accordingly, submitted that no principle of law was laid down in Naresh Shridhar Mirajkar (supra), which would stand as an impediment to entertain this writ petition where relief is sought for under article 226 8 of the Constitution against an order of the CJM passed without jurisdiction.
4.12. Reference was lastly made to Surya Dev Rai v. Ram Chander Rai, AIR 2003 SC 3044, in support of the contention that even a judicial order of a civil court was held to be amenable to the certiorari jurisdiction of a High Court if the same was passed without jurisdiction. 4.13. Mr. Datta concluded by submitting that this being a fit case for interference, the same may be entertained to prevent gross miscarriage of justice.
ARGUMENTS FOR THE STATE
5. This writ petition was heard along with W.P. 7596 (W) of 2014, which was opposed by Mr. Abhratosh Majumdar, learned Junior Standing Counsel (now the Government Pleader). There also, the issue as to whether an order passed by a magistrate in exercise of judicial powers could be challenged in a writ petition came up for consideration. Mr. Majumdar's submissions, based on thorough research undertaken by him regarding the genesis of Articles 226 and 227, are recorded hereunder.
5.1. The first submission of Mr. Majumdar was that the power of superintendence of the High Court under Article 227 and the power of the High Court to issue a writ in the nature of certiorari under Article 226 are well-defined, distinct and separate.
5.2. It was submitted that recourse may be had to the statutory remedy available under the Cr.P.C. or in extraordinary cases recourse may be taken under Article 227, given the facts of the case at hand. However, the 9 remedy under Article 226 is only available for issuance of a writ of certiorari when any order has been passed by administrative quasi-judicial bodies, including tribunals, and not otherwise.
5.3. Endeavouring to show that the founding fathers created a distinction between the powers of the High Courts under Articles 226 and 227, Mr. Majumdar referred to two relevant provisions of the Government of India Act, 1935, which are Sections 224 and 226. Section 224 provided for the administrative functions of the High Courts, and Section 224(1) in a modified form, is the present day Article 227. Reading Section 224 with Section 226, it would appear that the jurisdiction of a High Court insofar as revenue matters were concerned was barred. Concerning the evolution of provincial judiciary with regard to the High Courts in particular, 3 (three) proposals had been forwarded by Sri Alladi Krishnaswami Ayyar during the Constituent Assembly of India Debates with the object of removing certain patent and glaring defects in the jurisdiction of the High Courts and to get rid of the anomalies and to provide an adequate and effective machinery for the enforcement of the fundamental rights, viz.
"(a) all the High Courts in the Union of India shall have the right to issue prerogative writs or any substituted remedies therefore throughout the area subject to their appellate jurisdiction;
(b) the restriction as to jurisdiction in revenue matters referred to in Section 226 of the Government of India Act, 1935, shall no longer apply to the High Courts; and
(c) in addition to the powers enumerated in section 224 of the Government of India Act, 1935 the High Courts shall have powers of superintendence over 10 subordinate courts as under section 107 of the Government of India Act, 1915."
5.4. The following passage from "The Framing of India's Constitution, A Study" by B. Shiva Rao (second edition) was next placed:
"Both Alladi Krishnaswami Ayyar and K. M. Munshi gave an explanation of the somewhat technical implications of these proposals. It was urged that, under the law as it stood, only the High Courts of Madras, Bombay and Bengal had the right to issue prerogative writs within the limits of their ordinary original jurisdiction. Other High Courts did not have this power, nor did the power of the three high Courts extend beyond the three towns of Madras, Bombay and Calcutta, where they exercised original jurisdiction. The new Constitution for a free India would be a kind of charter, containing the fundamental rights of citizens, and the intention of the first proposal of Alladi Krishnaswamin Ayyar was that all the High Courts should for this purpose have within their jurisdiction powers to issue writs.
The second proposal was intended to remove the restriction contained in section 226(1) of the Act of 1935, which laid down that until otherwise provided by Act of the appropriate Legislature, no High Court would have any original jurisdiction in any matter concerning the revenue, or concerning any act "ordered or done in the collection thereof according to the usage and practice of the country or the law for the time being in force". Munshi made it clear that this was being done only "as a matter of history" and that even in revenue matters the jurisdiction of the High Courts would be exercised in accordance with the law. The third proposal was apparently meant to remove the restriction contained in section 224 of the Government of India Act, 1935, which laid down:
Nothing in this section shall be construed as giving to a High Court any jurisdiction to question any judgment of any inferior court which is not otherwise subject to appeal of revision.
These three proposals were readily accepted by Vallabhbhai Patel, the Chairman of the Provisional 11 Constitution Committee, and adopted by the Assembly."
5.5. Mr. Majumdar contended that Article 226(1) when compared with the language of Article 227 would show that under the former provision, the power to issue writs is confined to any person or authority, including in appropriate cases to any Government, whereas under
the latter provision, it is a power of superintendence that is exercisable by the High Court over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. It was submitted that while proposal (a) gave birth to Article 226, clause (1) of Article 227 was acceptance of proposal (c) moved by Sri Ayyar and Article 227(2) was framed on the lines of Section 224 afore-mentioned.
5.6. The second submission was that the 'courts' and 'tribunals' against whom a writ would lie, as held in the decisions of the Supreme Court in the fifties and the early sixties of the last century, stricto sensu would not include civil or criminal courts but would include tribunals -
statutory tribunals or administrative tribunals - discharging basically judicial functions. 5.7. It was submitted that some confusion regarding issuance of certiorari arose as in several High Courts a composite writ petition could be filed under Article 226 read with Article 227. In Manmohan Singh Jaitla v. Commissioner, Union Territory of Chandigarh, 1984 Supp. SCC 540, the Court held that :
"Obviously, therefore, the decision of the statutory quasi-judicial authorities which can be appropriately described as tribunal will be subject to judicial review 12 namely a writ of certiorari by the High Court under Article 227 of the Constitution."
5.8. According to him, this is where the confusion crept into the judicial process. However, it was submitted that under Article 226, a writ of certiorari can be issued against only tribunals and administrative authorities or quasi-judicial authorities discharging some kind of judicial or quasi-judicial functions i.e. determining some kind of a dispute and the test being whether the order passed entails adverse civil consequences or not. 5.9. Reference was then made to Radhey Shyam v. Chhabi Nath, (2009) 5 SCC 616, where the Court held -
"Under Article 227 of the Constitution, the High Court does not issue a writ of certiorari. Article 227 of the Constitution vests the High Courts with a power of superintendence which is bound to be very sparingly exercised to keep tribunals and courts within the bounds of their authority. Under Article 227, orders of both civil and criminal courts can be examined only in very exceptional cases when manifest miscarriage of justice has been occasioned."
5.10. Shalini Shyam Shetty v. Rajendra Shankar Patil, 2010 (8) SCC 329 was placed next where following inter alia Surya Dev Rai (supra), the points of distinction between Articles 226 and 227 were noticed and certain principles were formulated on the exercise of the High Court's jurisdiction under Article 227.
5.11. It was submitted by Mr. Majumdar that following the rationale therein, a writ of certiorari under Article 226 could be issued to correct any order passed by an authority or a tribunal discharging quasi-judicial or judicial functions. However, the writ of certiorari cannot be invoked or pressed into service to sit in appeal or sit 13 in a kind of revision or review over an order passed by a court stricto sensu, which means the civil or the criminal courts.
5.12. The third submission was that the corrective power given to the High Courts under Article 226 is to sanitize administrative and quasi-judicial decisions from errors apparent on the face of the record. Such error should be patent and obtrusive like jurisdictional error, or quasi- judicial and administrative decisions vitiated by violation of the principles of natural justice.
5.13. The Bharat Bank Ltd., Delhi v. The Employees of Bharat Bank Ltd., Delhi, AIR 1950 SC 188, was the next decision that was cited. It was held by the Supreme Court that it is no longer res integra that the power of certiorari was confined to orders passed by tribunals. The separate opinion of Justice Fazl Ali, which was a part of the majority judgment was placed, reading as follows:
"It is well known that a writ of certiorari can issue only against an order of a judicial or quasi-judicial tribunal and if it is permissible for the High Court to issue a writ of certiorari against an industrial tribunal, which fact was not seriously disputed before us, I find it difficult to hold that the tribunal does not come within the purview of Art. 136. If a sub-ordinate Court acts in excess of its jurisdiction which it does not possess, the appellate Court can always interfere and do what is contemplated to be done by a writ of certiorari."
5.14. G. Veerappa Pillai v. Raman and Raman Ltd, AIR 1952 SC 192, was next placed where the Apex Court held:
"Such writs as are referred to in Art. 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess 14 of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error, or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide or large as to enable the High Court to convert itself into a Court of appeal and examine for itself the correctness of the decisions impugned and decide what is the proper view to be taken or the order to be made."
5.15. It was once again submitted that a writ of certiorari would lie only against tribunals and authorities provided for under Article 226 and not civil or criminal courts. 5.16. The fourth submission was that a writ of certiorari lies against the authorities and quasi-judicial tribunals which are not courts stricto senso but have trappings of civil court. In this regard paragraphs 23, 28 and 29 of Bharat Bank (supra) were placed. At paragraph 23, the meaning of the word 'Court' was discussed. At paragraph 28, a tribunal was deemed to be a civil court for certain purposes.
5.17. It was also submitted that it becomes necessary in most of the cases to issue mandamus as an adjunct to certiorari. For example, if an order of an authority deciding the rights of a party that is impugned before a High Court in a writ petition is quashed, a consequential direction may be required to be given to the authority to take a decision afresh in accordance with law and in the process to discharge its public duty.
5.18. From the decision in Chingleput Bottlers v. Majestic Bottling Co., (1984) 3 SCC 258, the following passage was cited:
"It is true that sometimes it is prudent to couple a writ of certiorari with a writ of mandamus to control the 15 exercise of discretionary power... Professor H.W.R. Wade...defines the purpose of a writ of mandamus...Mandamus is often used as adjunct to certiorari. If a tribunal or authority acts in a manner where it has no power to act at all, certiorari will quash the decision and prohibition will prevent further unlawful proceedings ... If there is a power to act, but the power is abused (as by breach of natural justice or error on the face of record), certiorari will quash and mandamus may issue simultaneously to require a proper rehearing..."
5.19. Mr. Majumdar submitted that writ remedy is basically a composite redressal mode and it cannot be pressed into service where orders passed by courts stricto sensu are challenged, against which appellate or revisional remedy is available before a superior Court. Therefore, certiorari is associated with mandamus unlike Article 227 or unlike any statutory remedy that is available. 5.20. The next submission was that when the exercise of powers could be under Article 227 or Section 482, the Cr.P.C. (or even under Sections 397 or 401 of the Cr.P.C.), it may not always be necessary to invoke the provisions of Article 226.
5.21. In Pepsi Foods Ltd v. Special Judicial Magistrate and ors., (1998) 5 SCC 749, discussing State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, the Supreme Court observed :
"Under Article 227 the power of superintendence by the High Court is not only of administrative nature but is also of judicial nature. This article confers vast powers on the High Court to prevent abuse of the process of law by the inferior courts and to see that the stream of administration of justice remains clean and pure. The power conferred on the High Court under Articles 226 and 227 of the Constitution and under section 482 of the Code have no limits but more the 16 power more due care and caution is to be exercised while invoking these powers. When the exercise of powers could be under Article 227 or s. 482 of the Code it may not always be necessary to invoke the provisions of Article 226."
5.22. Mr. Majumdar proceeded to argue that here, it cannot be contended that the remedies available under Sections 397 or 401, Cr.P.C. are not adequate and efficacious remedies. They must be exhausted because one is knocking the doors of the High Court in another jurisdiction. It is a remedy to itself and it is well settled that any judgment of court cannot be challenged on the grounds of violation of Articles 14 and 21 as was held in Naresh Shridhar Mirajkar (supra) and followed in Triveniben vs. State of Gujarat, (1989) 1 SCC 678. However, the subsequent events may be challenged, like where mercy petition has been kept pending for years but not the order of the court.
5.23. Commissioner of Income Tax & Ors. v. Chhabil Dass Agarwal, (2014) 1 SCC 603, was cited for buttressing the submission that when effective statutory remedy under Sections 397, 401 and 482, Cr.PC as the case may be, is available, a writ of certiorari may not be issued. The Court therein noted that earlier in Nivedita Sharma vs. Cellular Operators Assn. of India, (2011) 14 SCC 337, it had been held that where hierarchy of appeals was provided by the statute, a party must exhaust the statutory remedies before resorting to writ jurisdiction for relief and that in Thansingh Nathmal v. Superintendent of Taxes, AIR 1964 SC 1419, the Court had adverted to the rule of self-imposed restraint that 17 the writ petition will not be entertained if an effective remedy is available to the aggrieved person. The Court also noted paragraph 7 of Thansingh Nathmal (supra) where it was held:
"7. ......... the jurisdiction of the High Court was bypassed, the appellants moved the High Court challenging the competence of the Provincial Legislature to extend the concept of sale, and invoked the extra-ordinary jurisdiction of the High Court under Art. 226 and sought to re-open the decision of the taxing authorities on question of fact. The jurisdiction of the High Court under Art. 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of the jurisdiction is discretionary: it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Art. 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Art. 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Art. 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up."18
5.24. It was submitted that the present case falls within the purview of the 'even itself' classification discussed above. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.
5.25. Based on the aforesaid submissions, a prayer for dismissal of this writ petition too was made by Mr. Majumdar.
Arguments for the Respondent No. 66. Mr. Saha Roy, learned advocate representing the respondent 6 submitted that the writ petition not being maintainable deserves outright rejection. Regarding the non-maintainability of the writ petition, an example of a service matter was given by him. A disciplinary proceeding has been initiated and service is threatened to be terminated without an opportunity of hearing. Provision in the relevant discipline and appeal rules allows 90 days' time for preferring an appeal against an order of termination, but there is no provision empowering the appellate authority to stay the order of termination. In such a case, if the factors for entertaining a writ petition despite availability of an alternative statutory remedy are fulfilled, the concerned employee may file a writ petition and seek an order of stay without waiting for 90 days to expire and without being under a disability to pray for stay in the absence of any such provision in the rules. Insofar as this case is concerned, the petitioner may approach the High Court 19 in a different jurisdiction (criminal revisional jurisdiction) and there is a scope to pray for stay ex parte. The learned judge empowered to hear a writ petition normally does not allow moving it ex parte until and unless there is extreme urgency, but so far as a criminal revision is concerned, the same can be moved ex parte, and an interim order may also be obtained if the circumstances so warrant. Hence, when such an alternative efficacious remedy is available, which is none other than the High Court itself, a writ petition instead of approaching the revisional court for substantially the same relief that could be granted by such court ought not to be entertained. There is no good reason as to why the writ court should interfere, for, even if there is violation of principles of natural justice or other provisions, the petitioner has the right to invoke this Court's jurisdiction under the general law i.e. the Cr.P.C. and even under the Constitution and can immediately pray for stay of further proceedings on the self same cause of action. Since an efficacious remedy before the High Court is available, the writ Court ought to throw out this writ petition at the threshold.
Arguments for the Respondent 7
7. Mr. Ganguly submitted that under Section 397(1), Cr.P.C.
the powers of revision are very specific. It permits the High Court to look into the correctness, legality and propriety of any order which has been recorded by a sub-ordinate court. In this case, the contentious issue is whether the CJM was justified in accepting, first of all, the final report which was submitted by the respondent 5 and secondly, 20 whether he was justified in discharging the respondents 6 and 7 without giving any reasons and putting the petitioner, the de facto complainant on notice. 7.1. Upon whether there was application of mind by the CJM, Mr. Ganguly contended that the impugned order recorded, first, the CJM's consideration of the documents which were the result of the further investigation; secondly, he had heard the learned Additional Public Prosecutor; and thirdly, his satisfaction that the respondents 6 and 7 required to be discharged. It could be contended that the CJM should have given a further notice to the de facto complainant before discharging two of the accused but it was further contended that the revisional Court, if approached, could also look into this issue and decide the correctness or legality of the said order.
7.2. It was also submitted that since there is an objection as to whether this writ petition should at all be entertained when there is an alternative and definitely an efficacious remedy open to the petitioner, it cannot be contended by any stretch of conviction before this bench that before another constituted bench, the petitioner would not receive justice.
7.3. The judgments relied upon by Mr. Datta, according to Mr. Ganguly, have not met the question effectively and it was finally submitted that Mr. Datta has not risen over the first hurdle of argument and therefore further arguments on merits cannot be entered into at this stage. 7.4. Regarding whether the investigating agency can carry out further investigation without permission of the 21 magistrate, the decision in State of A.P. v. A.S. Peter, (2008) 2 SCC 383 was cited where it was held as under:
"Indisputably, the law does not mandate taking of prior permission from Magistrate for further investigation. Carrying out of a further investigation even after filing of the charge-sheet is a statutory right of the police. A distinction also exists between further investigation and reinvestigation. Whereas reinvestigation without prior permission is necessarily forbidden, further investigation is not."
7.5. It was submitted that for paying regard to a judicial authority, permission could have been taken but it is not a mandatory requirement that further investigation may not be undertaken by the police authorities without obtaining the permission of the magistrate. 7.6. Mr. Ganguly further contended that with regard to the different steps that could be available to a magistrate upon receipt of a report under Section 173, Cr.P.C., the leading judgment is Abhinandan Jha v. Dinesh Mishra, AIR 1968 SC 117. This judgment shows that there are 3 (three) options available to a magistrate upon filing of a final report which means asking for discharge of certain accused. He may accept the final report or he may discard the final report and ask the police to investigate further or he may discard the final report and take cognizance under Section 190 notwithstanding the contrary report of the police.
7.7. It was submitted that there is no apparent error of jurisdiction on the face of the records in the option adopted by the CJM. It was further submitted that the question as to whether the CJM acted completely in consonance with legal principles is a matter that would necessarily arise for consideration if the legality of the 22 order is impugned before the revisional Court under Sections 397 and 401, Cr.P.C.
REPLY
8. In reply, Mr. Datta raised the following points:
a. None of the judgments cited on behalf of the petitioner has been distinguished.
b. No judgment has been placed to show that Section 482, Cr.P.C. is an absolute bar to entertain a writ petition under Article 226. Regarding the judgments cited by Mr. Mazumdar, Mr. Datta submitted that the Court has discretion not to entertain a writ petition but there is no absolute bar.
c. The submissions of the respondents have been made on the basis that this is a case of 'further investigation'. Mr. Datta contended that at least two cases have been relied on by him to show that this is not a case of 'further investigation' as there is no scope for supplementary charge-sheet, and that this is in the nature of 're-investigation'. Therefore, the principles that follow on the basis of a 'further charge-sheet' or a 'further investigation' will not apply in this case. Further, it is submitted that when it is a 'further investigation'/'re-investigation', what is a 'supplementary charge-sheet' has not been explained. d. According to Mr. Datta, A.S. Peters (supra) is an authority on no permission being required for 'further investigation' and Abhinandan Jha (supra) discusses a magistrate's powers upon receipt of a charge-sheet. The magistrate has no involvement over here in respect of 'further investigation'/'re-investigation'. It 23 was contended that these cases are beyond the scope of the present case.
e. Referring to Mr. Ganguly's submission that the CJM's order is a 'well-considered order', it was doubted as to whether the expression 'considered' is sufficient to portray a picture that it is a 'well-considered' order. Mere recording of the word 'considered' does not show application of mind and law on the subject is well known that the 'why' must be indicated for the 'what' to stand on.
f. Mr. Datta further submitted that in view of sub- section (2) of Section 397, Cr.P.C., interlocutory orders are not revisable. The impugned order being in the nature of an interlocutory order, it is not revisable. A revision under Section 397 would lie against a final order only and, therefore, Section 397 does not stand in the way of entertainment of this writ petition.
g. Finally, Mr. Datta submitted that the principal question that remains is whether the conducting of this alleged subsequent investigation is permissible in law. No law permits this kind of investigation. Rather in K. Chandrasekhar v. The State Of Kerala, AIR 1998 SC 2001, the Supreme Court held that sub-section (8) of Section 173, Cr.P.C. does not permit 're- investigation' or 'fresh investigation'. There is nothing called 're-investigation' or 'supplementary charge- sheet'. If that be so, then the exercise of power is itself bad. It is not a question of irregularity in the process but this kind of process is prohibited/not permitted. Section 482, Cr.P.C. no doubt could set right an 24 abuse of process, or give effect to an order of the court, etc. but its existence and availability of a remedy thereunder cannot curtail a constitutional right.
He, accordingly, appealed to the Court to entertain the writ petition for setting things right.
DECISION
9. I have heard the learned advocates for the parties at some length. The first issue that falls for an answer is, whether a writ petition would be maintainable in the peculiar facts and circumstances where allegedly a police officer conducts investigation in a manner contrary to law and submits a supplementary police report under Section 173(2), Cr.P.C., which has been accepted by the CJM and the respondents 6 and 7 discharged from the case based on the clean chit given by the police officer.
10. It cannot be doubted that investigation by a police officer, undertaken in terms of the provisions of Chapter XII of the Cr.P.C., is an executive act. Although a High Court cannot direct investigation to be conducted in a particular direction, the Court most certainly can direct investigation to be conducted in a manner ordained by the statute. As and by way of an example, Section 164(5A) of the Cr.P.C. may be referred to. In a given case where a complaint is lodged by a woman alleging commission of offence(s) punishable under the sections of the IPC referred to in sub-section (5A), it is the duty of 25 the judicial magistrate to record the statement of the victim in a manner provided therein subject of course to production of the victim before him. Should the judicial magistrate direct the investigating officer to produce the victim for recording of her statement and such officer does not produce the victim it is open to the judicial magistrate to enforce his order in a manner known to law. However, if a writ petition is filed alleging that the investigating officer has been remiss in the discharge of his statutory duty to investigate by not producing the victim before the judicial magistrate, would such writ petition alleging police inaction be not maintainable? Obviously it would, upon applying the law laid down by the Supreme Court to the effect that writ remedy shall not be available except where violation of some statutory duty on the part of a statutory authority is alleged. If any authority is needed, one may refer to the decision reported in AIR 1993 SC 1225 (Mohan Pandey v. Smt. Usha Rani Raj Garia). There is thus no reason as to why in a case resembling the cited example, the police officer may not be directed to perform his statutory duty.
11. However, different considerations arise in the present case since the investigation into the complaint lodged by the petitioner against the respondents 6 and 7 stands closed with the filing of the supplementary charge-sheet. Such supplementary charge-sheet, rightly or wrongly, has been looked into by the CJM and an order has been passed discharging the respondents 6 and 7 from the case. There cannot be any doubt that the order of discharge is a judicial order. As and when the Magistrate before whom a police report under Section 173(2), 26 Cr.P.C. is placed passes an order under Section 190 thereof taking cognizance of the offence, or passes an order accepting such report (read: a final report) and discharges the accused, the investigation conducted by the police officer receives a stamp of approval of the judiciary that investigation has been conducted in a manner required by law. Once this stamp of approval is given, normally it would not be open to the complainant to approach a writ court for the purpose of obtaining an order for quashing of the police report and the aggrieved complainant may seek remedy under the general laws i.e. the Cr.P.C. One of the reasons for declining relief under Article 226 would be that a writ petition would not lie against a judicial order passed by a Judge/Magistrate exercising judicial functions. The position may altogether be different if despite pendency of a writ petition challenging an investigation of a complaint disclosing cognizable offence by the State's investigating agency as tardy and inept with a view to favour the accused, and praying for transfer of the investigation to some other neutral agency, a police report is filed on perceived completion of investigation and receives the stamp of approval of the magistrate. The writ court having been approached before the filing of the police report, it would be entirely within the discretion of such court whether to allow or not to allow the matter to progress further. That is, however, not the case here.
12. I had the occasion to consider whether a judicial order passed by a learned district judge under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 could be subjected to challenge in a writ 27 petition, while deciding W.P. No. 14592(W) of 2012 (Scottlane Poverty Eradication Centre v. State of West Bengal). Upon consideration of the decisions of the Supreme Court in G. Veerappa Pillai (supra), T.C. Basappa v. T. Nagappa, AIR 1954 SC 440, Hari Vishnu Kamath v. Ahmed Ishaque, AIR 1955 SC 233 and Syed Yakoob v. K. S. Radhakrishnan, AIR 1964 SC 477, I had held that those decisions holding that orders of inferior courts or tribunals could be subjected to certiorari jurisdiction have to be understood in the light of the orders that were under challenge in the respective proceedings, which the Supreme Court ultimately had the occasion to examine, as well as consideration of law relating to exercise of certiorari jurisdiction in the country of its origin and that such decisions do not go so far to lay down a principle of law that the 'inferior courts' referred to therein would include the courts of civil judicature or the criminal courts and orders passed by such courts in the exercise of their respective jurisdiction would be amenable to the writ jurisdiction under Article 226 of the Constitution, a fortiori to certiorari jurisdiction. Dwarka Nath (supra) was also considered and distinguished having regard to the development of law in the field of challenge to administrative orders having civil consequences. It was further held therein as follows:
22. ............"Courts" referred to therein, in my reading, refers to a forum constituted by law to discharge functions akin to a tribunal constituted by a special law to deal with issues arising out of the statute creating such tribunal, for example, court within the meaning of Section 2(f) of the Industrial Disputes Act, 1947 and constituted under Section 6 thereof, or 28 Employees Insurance Court constituted under Section 74 of the Employees State Insurance Act, 1948, ****"
Referring to Naresh Sridhar Mirajkar (supra), it was observed as follows:
"26. There is no reason as to why the observations made by the Supreme Court in paragraph 38 extracted supra would not hold good for judges of civil courts who in the discharge of their judicial duties pass judicial orders, which in the present dispensation, are open to challenge either in appeal or revision (may not always be under Section 115 of the Code of Civil Procedure but definitely under Article 227 of the Constitution). Discharge of judicial duties and passing orders that are judicial by civil courts, as distinguished from orders passed by tribunals acting judicially, cannot be the subject matter of proceedings under Article 226 of the Constitution on the same analogy that when a judge of a civil court is in seisin of a matter that arises for his decision, he first decides questions of fact on which the parties are at issue, and then applies the relevant law to the said facts. A judge may decide rightly; he may also decide wrongly. Whether the decision is right or wrong can be considered and decided by the appellate or revisional Court, if the party aggrieved by the decision of the judge carries it higher up. A judicial order passed by a civil court subordinate to the High Court, which is competent to try the lis, on facts presented before it might be right for a party or wrong for the other party but irrespective of whether it is right or wrong, the same cannot be branded as contravening either the fundamental rights guaranteed to the citizens or other rights that are legally protected and judicially enforceable. An order passed by a civil court that does not satisfy a party to the proceedings or one who is not a party thereto has to be questioned either in appeal or revision that the law prescribes, if such aggrieved party wishes it to be wiped out of existence, but not in writ proceedings."
13. It was also noted there that the Supreme Court in its decision reported in Surya Dev Rai (supra) had interfered 29 in exercise of writ jurisdiction with an order passed by the civil court and that subsequently the Supreme Court in its decision in Radhey Shyam (supra) disagreed with the view expressed in Surya Dev Rai (supra), whereupon a reference to a larger bench was made. I have not come across a decision on the reference till date. The position that emerges is Surya Dev Rai (supra) cannot yet be accepted as an authority laying down a law that is binding on me as a precedent in view of the observations made in Radhey Shyam (supra) to the effect that the ratio decidendi of the larger bench decisions noticed therein still hold the field. In fact, before Surya Dev Rai (supra), there seems to be no reported decision of the Supreme Court where in exercise of writ powers, an order of the civil court was made the subject of judicial review. The confusion seems to have surfaced because of reading of the decisions of the Supreme Court in the fifties and the sixties of the earlier century in Surya Dev Rai (supra), as if certiorari jurisdiction could be exercised against orders passed by civil courts. I doubt whether the Supreme Court at all meant 'courts' as inclusive of 'civil courts' and observe that 'courts' as referred to in those decisions were not meant to include civil courts and criminal courts discharging the judicial powers of the State. It is settled law that although all civil courts and criminal courts are courts but all courts are not necessarily civil courts and criminal courts.
14. Existence of 'courts' created under different statutes, which are not 'courts' stricto sensu is not unknown. The writ powers are available to be exercised by a High Court for the enforcement of any of the rights conferred by Part 30 III of the Constitution or any other purpose i.e. for the enforcement of legal rights, which could be non- fundamental constitutional rights or statutory rights, is well known. Orders passed by courts, other than civil or criminal courts, could be challenged in writ proceedings. However, an order of a civil court passed in respect of a dispute between two parties or an order passed by a criminal court regarding complaints, investigations, search and seizure, trials, etc. in exercise of judicial functions although might affect the right of a party, enforcement thereof cannot be asked for taking recourse to Article 226. If such order could be questioned in appeal or revision by the aggrieved party in terms of the relevant general law i.e. the Civil Procedure Code, or the Cr.P.C., the writ court ought to stay at a distance and grant liberty to the party aggrieved to pursue his remedy in terms thereof or to seek other constitutional remedy, if available, meaning thereby the High Court's superintending jurisdiction under Article 227.
15. The submission of Mr. Majumder tracing the genesis of Articles 226 and 227 in the Constitution is indeed highly instructive and I am inclined to repeat, on acceptance of his contentions, that a writ petition is not maintainable against a judicial order passed either by a civil court or a criminal court, based on the view expressed in Surya Dev Rai (supra).
16. It is placed on record that Mr. Dutta was given opportunity to look into the unreported decision in Scottlane Poverty Eradication Centre (supra) but no worthy submission was advanced that would incline me to take a different view for holding that this writ petition 31 challenging the judicial order of the CJM is maintainable.
17. Assuming that Surya Dev Rai (supra) lays down correct law, the petitioner is still not entitled to an order for admission of the writ petition. The order of the CJM impugned in this writ petition does not suffer from absence of jurisdiction although it could be challenged on the ground that the CJM in the exercise of his jurisdiction has committed an error. One might in this connection profitably refer to the decision of the Supreme Court in Official Trustee, West Bengal v. Sachindranath Chatterjee, AIR 1969 SC 823. The Supreme Court was considering what is meant by "jurisdiction" and observed that it could do no better than quote the words of Hon'ble Asutosh Mookerjee, ACJ (as His Lordship then was) speaking for the Full Bench of this Court, in Hirday Nath Roy v. Ram Chandra Barna Sharma, AIR 1921 Cal 34. The guiding principle to bear in mind is the distinction between existence of jurisdiction and exercise of jurisdiction; the former relating to assumption of jurisdiction, when there is none, is different from the latter where, despite being conferred with jurisdiction, an error or a defect is committed.
18. I could have ended my judgment here but since Mr. Datta has argued that the order passed by the CJM is not revisable under Section 397, Cr.P.C., the contention needs to be dealt with. The words "interlocutory order passed in ......... or other proceeding" appearing in sub- section (2) of Section 397, Cr.P.C. have been referred to in support of the contention that the impugned order is not open to revision. I am afraid, the submission 32 proceeds on a total misconception. Although the order impugned may appear to be an interlocutory order, it has the element of finality attached to it since the respondents 6 and 7 would stand discharged from the case should the impugned order be not touched. In Amar Nath v. State of Haryana, AIR 1977 SC 2185, the Supreme Court had the occasion to observe as follows:
"6. *** The main question which falls for determination in this appeal is as to what is the connotation of the term "interlocutory order" as appearing in sub-section (2) of Section 397 which bars any revision of such an order by the High Court. The term "interlocutory order"
is a term of well-known legal significance and does not present any serious difficulty. It has been used in various statutes including the Code of Civil Procedure, Letters Patent of the High Courts and other like statutes. In Webster's New World Dictionary "interlocutory" has been defined as an order other than final decision. Decided cases have laid down that interlocutory orders to be appealable must be those which decide the rights and liabilities of the parties concerning a particular aspect. It seems to us that the term "interlocutory order" in Section 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397(2) of the 1973 Code. But orders which are matters of moment and 33 which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court."
19. There are subsequent decisions of the Supreme Court to the same effect and it is no use referring to the same when the law laid down in Amar Nath (supra) is holding the field.
20. In Mohan Pandey (supra), the Supreme Court had the occasion to observe that:
"the High Court cannot allow the constitutional jurisdiction to be used for deciding disputes, for which remedies, under the general law, civil or criminal, are available. It is not intended to replace the ordinary remedies by way of a suit or application available to a litigant. The jurisdiction is special and extraordinary and should not be exercised casually or lightly."
21. The aforesaid view is the echo of the view expressed by the Supreme Court in its decision in Thansingh Nathmal (supra), referred to by Mr. Majumdar.
22. On facts and in the circumstances of the present case, it would appear that the petitioner has remedies under Section 397 Cr.P.C. She may could also invoke the jurisdiction of this Court under Section 482, Cr.P.C. or even under a constitutional provision, i.e. Article 227. Regard being had to the decisions reported in State of H.P. v. Pirthi Chand, (1996) 2 SCC 37, Pepsi Foods (supra) and Chhabil Dass Agarwal (supra), I hold that the petitioner must seek her remedy by invoking the other jurisdiction.
CONCLUSION:
3423. In the result, the writ petition stands dismissed, without order for costs. This order shall, however, not preclude the petitioner to espouse her grievance in respect of the self-same cause of action before any other appropriate forum in accordance with law, if so advised, and all points not expressly decided by this judgment are left open.
Urgent photostat certified copy of this order, if applied for, shall be furnished to the applicant at an early date.
(DIPANKAR DATTA, J.) 35