Karnataka High Court
Nijaguni Sitaram Badiger vs Taluka Executive Magistrate on 23 July, 2018
Bench: G.Narendar, B.M.Shyam Prasad
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 23RD DAY OF JULY, 2018
PRESENT
THE HON'BLE MR. JUSTICE G. NARENDAR
AND
THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD
WRIT APPEAL NO.100643/2017 (GM-POLICE)
BETWEEN
NIJAGUNI SITARAM BADIGER,
AGE: 42 YEARS, OCC: MRF TYRE DEALERS,
ORDINARY R/O ADHYAPAK NAGAR,
NEAR HANUMAN TEMPLE NARAGUND,
PERMANENT R/O H.NO.1996,
JADIGERI ONI, AT & POST MUNAVALLI,
TQ: SAVANDATTI, DIST: BELAGAVI.
... APPELLANT
(BY SRI.NAMADEV SEETARAM BADIGER, ADVOCATE)
AND
1. TALUKA EXECUTIVE MAGISTRATE,
MINI VIDHANAN SOUDHA,
SOUNDATTI, DIST: BELAGAVI.
2. SUB-DIVISIONAL MAGISTRATE,
BAILHONGAL, DIST: BELAGAVI.
3. THE STATE OF KARNATAKA,
R/BY THE SECRETARY MINISTRY OF
HOME AFFAIRS, VIKAS SOUDHA, BENGALURU.
4. THE SUPERINTENDENT OF POLICE,
BELAGAVI DISTRICT, BELAGAVI.
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5. THE DIVISIONAL SUPERINTENDENT OF POLICE,
RAMDURGA, DIST: BELAGAVI.
6. THE SUB INSPECTOR OF POLICE,
SAVANDATTI POLICE STATION,
SAVANDATTI, DIST: BELAGAVI.
... RESPONDENTS
THIS APPEAL IS FILED UNDER SECTION 4 OF
KARNATAKA HIGH COURT ACT, 1961, PRAYING TO SET
ASIDE THE ORDER DATED 08.08.2017 PASSED BY THE
LEARNED SINGLE JUDGE DHARWAD, THE PRAYER FOR
QUASHING THE IMPUGNED NOTICE DATED 07.09.2016 AS
PER ANNEXURE-E IS REJEJCTED IN WRIT PETITION
NO.108129/2016, IN THE ENDS OF JUSTICE.
THIS APPEAL COMING ON FOR ORDERS, THIS DAY,
G. NARENDAR J., DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel appearing for the appellant.
2. The appellant in this intra-court appeal is aggrieved by the order passed by the learned Single Judge partly allowing the writ petition and rejecting the relief sought for setting aside Annexure-E to the writ petition-a show cause notice under Section 58 of the Karnataka Police Act, 1963 (for short, 'Act'). 3
3. The office has raised objections that no intra-court appeal is maintainable in the light of the judgment of the Division Bench of this Court rendered in Writ Appeal No.2843/2014 (GM-RES) disposed of on 09.02.2015 reported in ILR 2015 KAR 842 and the judgment of the Division Bench of this Court rendered in Writ Appeal No.100012/2018 (GM-RES).
4. The learned counsel for the appellant would submit that what is sought in the writ petition is basically protection of civil rights involving the liberty of the petitioner, which is being threatened by externment proceedings and hence the said rulings are inapplicable. He would place reliance on the judgment of the Hon'ble Apex Court rendered in the case of Ram Kishan Fauji Vs. State of Haryana and Others reported in AIR 2017 SC 1535.
5. To adjudicate upon the correctness of the office objections, it is necessary to refer to the relief 4 sought for in the writ petition. The prayer sought for in the writ petition is as follows:
a) Quash the FIR filed on 27.08.2016 in Crime No.325/2016 of Savandatti Police Station registered Under 107 of Cr.P.C. marked as Annexure-B, and the subsequent proceedings thereon culminating in the order passed by the Taluka Executive Magistrate in MAG.Cr.P.C.107/Cr.35/16-17 marked as Annexure-A with respect to petitioner.
b) Quash the impugned notice dated 07.09.2016 MAG/Cr.M/Cr.14/2016-17, marked as Annexure-E issued U/S. 58 of Karnataka Police Act 1963 by Sub Divisional Magistrate Bailhongal with respect to petitioner and proposed action and proceedings to be taken following thereon.
c) Call for the records and issue the writ of mandamus or other appropriate writ or order or direction to respondent No.3 to 6 to remove the name of the petitioner in register of rowdies, maintained by the respondent No.3 to 6. Under prayer-a, the petitioner has sought for quashing of the FIR registered as Crime No.325/2016; and prayer-b is sought for quashing of the proceedings initiated by the Sub Divisional Magistrate, Bailhongal exercising power under the Act; and thirdly, for a 5 direction to remove the name of the petitioner from the rowdies list maintained by respondents No.3 to 6.
6. From a reading of the relief sought for, it is apparent that the relief is sought against a criminal action initiated against the petitioner by way of registration of an FIR and also for removing the name of the petitioner from the rowdies list, which would necessarily result in proceedings and consequences under the criminal law.
7. The contention canvassed by the learned counsel for the appellant that the liberty of a person is a civil right and hence, the writ petition is not be construed as one invoking the inherent jurisdiction of this Court vested under Section 482 of Cr.P.C. is to be rejected as being fallacious. The observations of the Hon'ble Apex Court in this regard would obviate any further discussion with regard to the interpretation that the Courts are required to place in matters involving 6 invocation of the writ jurisdiction in respect of matters of criminal jurisprudence. The Hon'ble Apex Court in the case of Ram Kishan Fauji (supra) at para 61 has been pleased to observe as under:
"As we find from the decisions of the aforesaid three High Courts, it is evident that there is no disagreement or conflict on the principle that if an appeal is barred under Clause 10 or Clause 15 of the Letters Patent, as the case may be, no appeal will lie. The High Court of Andhra Pradesh, however, has held that when the power is exercised under Article 226 of the Constitution for quashing of a criminal proceeding, there is no exercise of criminal jurisdiction. It has distinguished the proceeding for quashing of FIR under Section 482 CrPC and, in that context, has opined that from such an order, no appeal would lie. On the contrary, the High Courts of Gujarat and Delhi, on the basis of the law laid down by this Court in Ishwarlal Bhagwandas (AIR 1965 SC 1818) (supra), have laid emphasis on the seed of initiation of criminal proceeding, the consequence of a criminal proceeding and also the nature of relief sought before the Single Judge under Article 226 of the Constitution. The conception of 'criminal jurisdiction' as used in Clause 10 of the Letters Patent is not to be construed in the narrow sense.
It encompasses in its gamut the inception and the consequence. It is the field in respect of which the jurisdiction is exercised, is relevant. The contention that solely because a writ petition is filed to quash an investigation, it would have room for intra-court appeal and if a petition is filed under inherent jurisdiction under Section 482 CrPC, there would be no space for an intra-court appeal, would create 7 an anomalous, unacceptable and inconceivable situation. The provision contained in the Letters Patent does not allow or permit such an interpretation. When we are required to consider a bar or non-permissibility, we have to appreciate the same in true letter and spirit. It confers jurisdiction as regards the subject of controversy or nature of proceeding and that subject is exercise of jurisdiction in criminal matters. It has nothing to do whether the order has been passed in exercise of extraordinary jurisdiction under Article 226 of the Constitution or inherent jurisdiction under Section 482 CrPC. In this regard, an example can be cited. In the State of Uttar Pradesh, Section 438 CrPC has been deleted by the State amendment and the said deletion has been treated to be constitutionally valid by this Court in Kartar Singh v. State of Punjab. However, that has not curtailed the extraordinary power of the High Court to entertain a plea of anticipatory bail as has been held in Lal Kamlendra Pratap Singh v. State of Uttar Pradesh and others and Hema Mishra v. State of Uttar Pradesh and others. But that does not mean that an order passed by the Single Judge in exercise of Article 226 of the Constitution relating to criminal jurisdiction, can be made the subject matter of intra-court appeal. It is not provided for and it would be legally inappropriate to think so."
8. In the light of the observations as noted supra and in the light of the observations at paragraphs 64, 65 and 66 of the said judgment, we are of the opinion that the interpretation placed by the learned counsel for the appellant to conceptualize the 8 proceedings as one under Article 226 of the Constitution of India and not amounting to invoking the inherent jurisdiction under Section 482 of Cr.P.C. requires to be rejected. Consequently, the office objections are upheld and the writ appeal is rejected as not maintainable.
Sd/-
JUDGE Sd/-
JUDGE Sh