Jharkhand High Court
Yogendra Mahto @ Yogendra Prasad Son Of ... vs The State Of Jharkhand on 10 May, 2018
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W. P. (Cr.) No. 61 of 2018
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Yogendra Mahto @ Yogendra Prasad son of Vishwanath Mahto, resident of Murubanda, PO & PS Rajrappa, Dist. Ramgarh, Jharkhand ... ... Petitioner Versus The State of Jharkhand ... ... Respondent
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CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
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For the Petitioner : M/s. R. S. Mazumdar, Senior Advocate &
Kumar Vaihbav, Advocate
For the Respondent : M/s. Ajit Kumar, A.G. &
Raunak Sahay, J.C. to S.C. (Mines)
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6/10.05.2018 Heard Mr. R. S. Mazumdar, learned senior counsel for the
petitioner and Mr. Ajit Kumar, learned Advocate General.
2. In this writ application, the petitioner has prayed for quashing of the order dated 19.02.2018 passed by the learned Additional Sessions Judge I, Ramgarh in Criminal Appeal No. 6 of 2018 whereby and whereunder the prayer of the petitioner for stay of order of conviction has been rejected.
3. A further prayer has been made for quashing of the order dated 23.02.2018 passed by the learned Additional Sessions Judge I, Ramgarh in which on the clarification sought for by the petitioner on the order dated 19.02.2018, it has been held that the appellate court has the power to suspend only the execution of the sentence during the pendency of the appeal. The petitioner has further prayed upon quashing of the impugned orders for stay of the conviction of the petitioner in terms of the judgment dated 31.01.2018 passed by the learned S.D.J.M., Ramgarh in connection with Rajrappa P. S. Case No. 53 of 2010 corresponding to G. R. No. 2478 of 2010.
4. It has been stated by the learned senior counsel for the petitioner that the impugned orders dated 19.02.2018 and 23.02.2018 is bad in law in view of the fact that the learned appellate court had placed reliance in the case of "B. R. Kapur Vs. State of Tamil Nadu & another" reported in (2001) 7 SCC 231. It has been stated that the said judgment is confined only with respect to the suspension of sentence and the same being not -2- applicable to the facts and circumstances of the case, no reliance could have been placed by the learned appellate court while rejecting the plea of the petitioner for suspending the order of conviction. Learned senior counsel further submits that the petitioner was a Member of Legislative Assembly and on account of his conviction, he has been disqualified in terms of Section 8 (3) of the Representation of People Act. Learned senior counsel further submits that the petitioner has been removed as a Member of Jharkhand Legislative Assembly vide notification dated 10.02.2018 by the Speaker which has been challenged by the petitioner in W.P.(C) No. 819 of 2018 which is pending before this Court.
5. Submission has also been advanced that in the criminal case instituted against the petitioner, the prosecution has miserably failed to prove its case that the petitioner was running Shubham Shivam Coke Private Ltd. It has been stated that most of the allegation have been found to be false and the petitioner has been acquitted from all the charges save and except Section 414 and 120(B) I.P.C. It has also been stated that majority of the witnesses have not implicated the petitioner and the finding has also been given by the learned trial court that no material fact has come in course of examination of the said witnesses. Learned senior counsel further submits that if the conviction of the petitioner is not stayed, the same will lead to an irreversible loss to the petitioner. It has further been stated that the order of conviction if stayed will be inoperative and the same will not tantamount to setting aside the order of conviction and in the background facts and circumstances of the case, the impugned orders deserve to be set aside. In support of his contention, learned counsel has referred to the judgments in the cases of -
"Rama Narang Vs. Naresh Narang" reported in (1995) 2 SCC 513, "Lalsai Khunte Vs. Nirmal Sinha" reported in (2007) 9 SCC 530, "Ravikant S. Patil Vs. Sarvabhouma S. Bagali" reported in (2007) 1 SCC 673, "Lily Thomas Vs Union of India & Others" reported in (2013) 7 SCC 653, "Lok Prahari, through its General Secretary Satya Narayan Shukla Vs. State of U.P. Through Chief Secretary and Secretary of Cabinet and Others" in Misc. Bench No. 3146 of 2015 and "Prabhu Narayan Tiwari Vs. U. P.& 4 Others" in P.I.L. No. 15249 of 2015.-3-
6. Mr. Ajit Kumar, learned A.G. has made a preliminary objection on the prayer made by the petitioner by submitting that the writ application itself is not maintainable. It has been stated that the petitioner had a remedy of filing an application under Section 397 of Cr.P.C., but instead, the petitioner has chosen to invoke the writ jurisdiction of this Court under article 226 of the Constitution of India. Learned A. G. further submits that what cannot be done directly cannot also be done indirectly. In support of his contention that the writ application itself is not maintainable, reference has been made to the case of "Girish Kumar Suneja Vs. CBI" reported in (2017) 14 SCC 809. An alternative argument has been put forward by the learned A.G. that if it is held that the writ application is maintainable, but even then the prayer made by the petitioner cannot be acceded to.
Mr. Ajit Kumar, learned A.G. has controverted the submissions advanced by the learned senior counsel for the petitioner by stating that in exceptional circumstances, the conviction can be stayed, but the petitioner had failed to show any such exceptional circumstance which would entail stay of the conviction. It has further been stated that the learned court below while passing the impugned order dated 19.02.2018 had rejected the plea of the petitioner and in the clarificatory order dated 23.02.2018, the earlier order passed by the learned trial court was reiterated. It has been stated that the provisional bail granted to the petitioner was already confirmed and the petitioner having been disqualified from being a Member of the Legislative Assembly on account of his conviction which involves illegal stocking of coal in the factory premises, the petitioner does not deserve stay of the order of conviction.
7. Learned A.G. in support of his contention has referred to the judgment in the case of "Central Bureau of Investigation Vs. M. N. Sharma" reported in (2008) 8 SCC 549, in the case of "State of Maharashtra through CBI Vs. Balakrishna Dattatrya Kumbhar"
reported in (2012) 12 SCC 384 and in the case of "Central Bureau of Investigation Vs. Roshan Lal Saini" reported in (2012) 12 SCC 390.
8. On being confronted with the question of maintainability raised by the learned A.G., Mr. R. S. Mazumdar, learned senior counsel for the -4- petitioner has stated that the judgment passed in the case of "Surya Dev Rai Vs. Ram Chander Rai" reported in (2003) 6 SCC 675 has already been overruled in the case of "Radhey Shyam v. Chhabi Nath" reported in (2015) 5 SCC 423. Learned senior counsel has also referred to the judgment in the case of "Pepsi Foods Ltd. v. Special Judicial Magistrate"
reported in (1998) 5 SCC 749 which according to him has been followed in the case of "Varala Bharath Kumar Vs. State of Telangana" reported in (2017) 9 SCC 413. It has been stated that although the present writ application has been filed under the aegis of Article 226 of the Constitution of India, but mere nomenclature will not prevent the petitioner to get access to justice for which reference has been made to the case of "Anita Kushwaha Vs. Pushap Sudan" reported in (2016) 8 SCC 509. He has submitted that access to justice also makes the grievance of the petitioner amenable to writ jurisdiction.
9. Mr. Ajit Kumar, learned A.G. has contended that the petitioner was convicted for the offence under Sections 414 and 120(B) of the I.P.C. and the petitioner being a sitting M.L.A. was rightly disqualified from being a Member of the Legislative Assembly. It has been stated that there is strong circumstantial evidence which has been considered by the learned trial court suggesting the involvement of the petitioner in the offence as alleged and therefore, the prayer for stay of conviction in the backdrop of plethora of judgments of the Hon'ble Supreme Court that only in exceptional circumstance, a judgment of conviction can be stayed and the petitioner having failed to propagate such circumstance, the present application is liable to be dismissed and the order passed by the learned appellate court be affirmed.
10. Upon consideration of the arguments advanced by the learned senior counsel for the respective parties, this Court shall delve into the preliminary objection raised by the learned A.G. with respect to the non- maintainability of the present writ application. In the case of "Girish Kumar Suneja" (supra) while considering the expanse of Article 227, Article 226 and Section 482 of Cr.P.C. , it was held as follows:
"37. There is no doubt that the power of superintendence available to the High Court under Article 227 is extremely vast but at the same time as held in Shalini Shyam Shetty19 the High Court cannot exercise that power of superintendence at the drop of a hat. In addition, in exercise of its power of superintendence -5- the High Court cannot correct mere errors of law or fact only because another view is possible. What is more important is the following principle that has been culled out: (SCC p. 349, para
49) "49. ... (n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 of the Constitution is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above."
38. The Criminal Procedure Code is undoubtedly a complete code in itself. As has already been discussed by us, the discretionary jurisdiction under Section 397(2) CrPC is to be exercised only in respect of final orders and intermediate orders. The power under Section 482 CrPC is to be exercised only in respect of interlocutory orders to give effect to an order passed under the Criminal Procedure Code or to prevent abuse of the process of any court or otherwise to serve the ends of justice. As indicated above, this power has to be exercised only in the rarest of rare cases and not otherwise. If that is the position, and we are of the view that it is so, resort to Articles 226 and 227 of the Constitution would be permissible perhaps only in the most extraordinary case. To invoke the constitutional jurisdiction of the High Court when the Criminal Procedure Code restricts it in the interest of a fair and expeditious trial for the benefit of the accused person, we find it difficult to accept the proposition that since Articles 226 and 227 of the Constitution are available to an accused person, these provisions should be resorted to in cases that are not the rarest of rare but for trifling issues."
11. In the aforesaid pronouncement, it has been indicated that only in most extraordinary cases, an aggrieved person can resort to Article 226 and 227 of the Constitution of India. It be noted herein that the present writ application has been preferred under Section 226 of the Constitution of India and not under Article 227 of the Constitution of India which is the power of superintendence of the High Court. The primary objection as has been noted above by the learned A.G. is that the petitioner could have resorted to an application under the provisions of the Code of Criminal Procedure, but instead has chosen an inappropriate provision in the facts and circumstances of the case as the petitioner has challenged an inter-locutory order by which the prayer for stay of conviction has been rejected. Whether it is an extraordinary situation, which would entail the petitioner to invoke Article 226 of the Constitution of India for redressal of his grievance has therefore to be seen in the background of -6- the circumstances emanating and whether the same can be termed to be an exceptional circumstance.
12. Mr. R. S. Mazumdar, learned senior counsel as has been indicated above has referred to a number of judicial pronouncements to bolster his argument regarding the maintainability of the writ application.
13. In the case of "Surya Dev Rai Vs. Ram Chander Rai" while considering the contents between a writ of Certiorari under Article 226 of the Consititution of India and the supervisory jurisdiction of the High Court under Article 227 of the Constitution of India, it has been held as follows:
"23. The history of supervisory jurisdiction exercised by the High Court, and how the jurisdiction has culminated into its present shape under Article 227 of the Constitution, was traced in Waryam Singh v. Amarnath. The jurisdiction can be traced back to Section 15 of the High Courts Act, 1861 which gave a power of judicial superintendence to the High Court apart from and independently of the provisions of other laws conferring revisional jurisdiction on the High Court. Section 107 of the Government of India Act, 1915 and then Section 224 of the Government of India Act, 1935, were similarly worded and reproduced the predecessor provision. However, sub-section (2) was added in Section 224 which confined the jurisdiction of the High Court to such judgments of the inferior courts which were not otherwise subject to appeal or revision. That restriction has not been carried forward in Article 227 of the Constitution. In that sense Article 227 of the Constitution has width and vigour unprecedented. Difference between a writ of certiorari under Article 226 and supervisory jurisdiction under Article 227.
24. The difference between Articles 226 and 227 of the Constitution was well brought out in Umaji Keshao Meshram v. Radhikabai12. Proceedings under Article 226 are in exercise of the original jurisdiction of the High Court while proceedings under Article 227 of the Constitution are not original but only supervisory. Article 227 substantially reproduces the provisions of Section 107 of the Government of India Act, 1915 excepting that the power of superintendence has been extended by this article to tribunals as well. Though the power is akin to that of an ordinary court of appeal, yet the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. The power may be exercised in cases occasioning grave injustice or failure of justice such as when (i) the court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though -7- available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction."
14. To consider the correctness of the law laid down in the case of "Surya Dev Rai Vs. Ram Chander Rai" (supra), the matter was referred to a Bench of 3 judges in the case of "Radhey Shyam Vs. Chhabi Nath"
reported in (2015) 5 SCC 423, on the following points:
1. ...........
"30. ... Therefore, this Court unfortunately is in disagreement with the view which has been expressed in Surya Dev Rai insofar as correction of or any interference with judicial orders of civil court by a writ of certiorari is concerned.
31. 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 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. Such power, however, is not to be exercised to correct a mistake of fact and of law.
32. The essential distinctions in the exercise of power between Articles 226 and 227 are well known and pointed out in Surya Dev Rai and with that we have no disagreement. But we are unable to agree with the legal proposition laid down in Surya Dev Rai that judicial orders passed by a civil court can be examined and then corrected/reversed by the writ court under Article 226 in exercise of its power under a writ of certiorari. We are of the view that the aforesaid proposition laid down in Surya Dev Rai, is contrary to the ratio in Mirajkar and the ratio in Mirajkar has not been overruled in Rupa Ashok Hurra.
33. In view of our difference of opinion with the views expressed in Surya Dev Rai, matter may be placed before His Lordship the Hon'ble the Chief Justice of India for constituting a larger Bench, to consider the correctness or otherwise of the law laid down in Surya Dev Rai on the question discussed above."
15. The reference was answered in the following paragraphs in the case of "Radhey Shyam Vs. Chhabi Nath" (supra):
"27. Thus, we are of the view that judicial orders of civil courts are not amenable to a writ of certiorari under Article 226. We are also in agreement with the view1 of the referring Bench that a writ of mandamus does not lie against a private person not discharging any public duty. Scope of Article 227 is different from Article 226.
28. We may also deal with the submission made on behalf of the respondent that the view in Surya Dev Rai2 stands approved by larger Benches in Shail6, Mahendra Saree Emporium (2)7 and Salem Advocate Bar Assn. (2)8 and on that ground correctness of -8- the said view cannot be gone into by this Bench. In Shail6, though reference has been made to Surya Dev Rai2, the same is only for the purpose of scope of power under Article 227 as is clear from para 3 of the said judgment. There is no discussion on the issue of maintainability of a petition under Article 226. In Mahendra Saree Emporium (2)7, reference to Surya Dev Rai2 is made in para 9 of the judgment only for the proposition that no subordinate legislation can whittle down the jurisdiction conferred by the Constitution. Similarly, in Salem Advocate Bar Assn. (2)8 in para 40, reference to Surya Dev Rai is for the same purpose. We are, thus, unable to accept the submission of the learned counsel for the respondent.
29. Accordingly, we answer the question referred as follows:
29.1. Judicial orders of the civil court are not amenable to writ jurisdiction under Article 226 of the Constitution. 29.2. Jurisdiction under Article 227 is distinct from jurisdiction under Article 226.
29.3. Contrary view in Surya Dev Rai is overruled."
16. It was therefore, held in the aforesaid judgment that the judicial order of Civil Court are not amenable to the writ jurisdiction under Article 226 of the Constitution of India. In the case of "Ram Kishan Fauji Vs. State of Haryana" (supra), it was held as follows:
40. As the controversy in Jogendrasinhji Vijaysinghji case related to further two aspects, namely, whether the nomenclature of the article is sufficient enough and further, whether a tribunal is a necessary party to the litigation, the two-Judge Bench proceeded to answer the same. In that context, the Court referred to the authorities in Lokmat Newspapers (P) Ltd. v.
Shankarprasad, Kishorila, Ashok K. Jha and Ramesh Chandra Sankla and opined that maintainability of a letters patent appeal would depend upon the pleadings in the writ petition, the nature and character of the order passed by the learned Single Judge, the type of directions issued regard being had to the jurisdictional perspectives in the constitutional context. It further observed that barring the civil court, from which order as held by the three- Judge Bench in Radhey Shyam that a writ petition can lie only under Article 227 of the Constitution, orders from tribunals cannot always be regarded for all purposes to be under Article 227 of the Constitution. Whether the learned Single Judge has exercised the jurisdiction under Article 226 or under Article 227 or both, would depend upon various aspects. There can be orders passed by the learned Single Judge which can be construed as an order under both the articles in a composite manner, for they can co-exist, coincide and imbricate. It was reiterated that it would depend upon the nature, contour and character of the order and it will be the obligation of the Division Bench hearing the letters patent appeal to discern and decide whether the order has been passed by the learned Single Judge in exercise of jurisdiction under Article 226 or 227 of the Constitution or both. The two- Judge Bench further clarified that the Division Bench would also -9- be required to scrutinise whether the facts of the case justify the assertions made in the petition to invoke the jurisdiction under both the articles and the relief prayed on that foundation. The delineation with regard to necessary party not being relevant in the present case, the said aspect need not be adverted to."
17. Learned senior counsel for the petitioner has placed much reliance on the judgment of "Pepsi Food Ltd. and Anr." (supra), wherein it was held as follows:
"22. It is settled that the High Court can exercise its power of judicial review in criminal matters. In State of Haryana v. Bhajan Lal1 this Court examined the extraordinary power under Article 226 of the Constitution and also the inherent powers under Section 482 of the Code which it said could be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice. While laying down certain guidelines where the court will exercise jurisdiction under these provisions, it was also stated that these guidelines could not be inflexible or laying rigid formulae to be followed by the courts. Exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any court or otherwise to secure the ends of justice. One of such guidelines is where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. 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 the 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 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 Section 482 of the Code it may not always be necessary to invoke the provisions of Article 226. Some of the decisions of this Court laying down principles for the exercise of powers by the High Court under Articles 226 and 227 may be referred to.
26. Nomenclature under which petition is filed is not quite relevant and that does not debar the court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. If in a case like the present one the court finds that the appellants could not invoke its jurisdiction under Article 226, the court can certainly treat the petition as one under Article 227 or Section 482 of the Code. It may not however, be lost sight of that provisions exist in the Code of revision and appeal but some time for immediate relief Section 482 of the Code or Article 227 may have to be resorted to for correcting some grave errors that might be committed by the -10- subordinate courts. The present petition though filed in the High Court as one under Articles 226 and 227 could well be treated under Article 227 of the Constitution."
18. In the case of "Pepsi Food Ltd." (supra), it was held that nomenclature is not of much relevance and does not debar the Court from exercising its jurisdiction which otherwise it possesses unless there is a special procedure prescribed which procedure is mandatory. Learned senior counsel while referring to the judgment of "Pepsi Food Ltd." (supra) has reiterated his submission that the writ application preferred by the petitioner under Article 226 of the Constitution of India is maintainable and the same shall depend upon the nature, contour and character of the order/orders impugned. In the case of "Varala Bharath Kumar Vs. State of Telangana" (supra), it was held that the extraordinary powers under Article 226 of the Constitution of India or the inherent powers under Section 482 of Cr.P.C. can be exercised by the High Court either to prevent abuse of the process of Court or otherwise to secure the ends of justice. So far as the reference which has been made to the case of "Anita Kushwaha" (supra), the same related to examination as to whether the Hon'ble Supreme Court has the power to transfer a civil or criminal case pending in any Court in the State of Jammu & Kashmir to the Court outside that State and vice-versa. It was held in the said judgment that "there is no real reason why access to justice should be considered by filing outside the class and category of the said rights which already stands recognized as being a part and parcel of the Article 21 of the Constitution of India." By citing this judgment, Mr. Mazumdar, learned senior counsel has tried to substantiate his argument that access to justice is of primary importance and the same cannot be fettered by raising questions with respect to the maintainability of the writ application.
19. Strong reliance has been placed by the learned senior counsel for the petitioner in the case of "Pepsi Food Ltd." (supra) by stating that nomenclature under which an application is filed is not of much significance. However, so far as the submission advanced by the learned senior counsel for the petitioner with respect to the maintainability of this writ application preferred under Article 226 of Constitution of India is concerned, it is not in doubt that the petitioner had the opportunity to -11- invoke the inherent powers of the High Court under Section 482 Cr.P.C. and/or could have explored the provisions of Section 397 of the Code of Criminal Procedure. This writ application has also not been preferred under Article 227 of the Constitution of India as the same would have given the power of superintendence which could have then be exercised. In the case of "Shalini Shyam Shetty Vs. Rajendra Shankar Patil"
reported in (2010) 8 SCC 329, it was held that the reserved and exceptional power of judicial intervention is not to be exercised which is for grant of relief in individual cases, but should be directed for promotion of public confidence in the administration of justice in the larger public interest, whereas Article 226 of the Constitution is meant for protection of individual grievance. It was further held that the power under Article 227 of the Constitution of India may be unfettered, but it is exercised subject to high degree of judicial discipline.
20. The three Judges Bench in the case of "Girish Kumar Suneja Vs. C.B.I." (supra) had held that resort to Article 226 and 227 of the Constitution would be permissible perhaps in the most extraordinary case.
21. The distinction therefore between Article 226 and 227 of the Constitution of India has been culled out from various pronouncements referred to above to mean that the power of superintendence of the High Court under Article 227 is unfettered, but has to be exercised with caution and due diligence and so far as Article 226 is concerned, the same is for the protection of individual grievance for which the High Court issues writs. The petitioner has sought to redress his grievance by invoking Article 226 of the Constitution of India. The petitioner could have availed the provisions imbibed in the Code of Criminal Procedure while challenging the impugned orders. Thus, when there is a special procedure provided, the petitioner could very well have invoked such provisions instead of preferring the present application under Article 226 of the Constitution of India.
22. In view of what has been stated above, therefore, I find sufficient force in the submission advanced by the learned A.G. and accordingly, this writ application preferred under Article 226 of the Constitution of India being not maintainable is hereby dismissed. However, it is open to -12- the petitioner to challenge the impugned orders of the present application by invoking the appropriate provisions of law.
23. This application stands dismissed.
(Rongon Mukhopadhyay, J) R. Shekhar Cp 3