Gujarat High Court
Amit Hiteshbhai Pandya vs State Of Gujarat on 20 October, 2022
R/SCR.A/7851/2022 JUDGMENT DATED: 20/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 7851 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of India
or any order made thereunder ?
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AMIT HITESHBHAI PANDYA
Versus
STATE OF GUJARAT
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Appearance:
MR JAL SOLI UNWALA, SENIOR ADVOCATE WITH MS TEJAL A
VASHI(2704) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR MITESH AMIN PUBLIC PROSECUTOR WITH MS MOXA THAKKAR,
APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 20/10/2022
ORAL JUDGMENT
[1] By way of this petition, the petitioner seeks to invoke jurisdiction Page 1 of 29 Downloaded on : Sun Dec 25 04:29:27 IST 2022 R/SCR.A/7851/2022 JUDGMENT DATED: 20/10/2022 of this Court under Article 226(2) of the Constitution of India, challenging, inter alia, the order dated 4th May 2022 passed in CRM/1306/2022 passed by the learned Judicial Magistrate First Class, Fatehgarh Sahib, Punjab; by which the learned J.M.F.C, Fatehgarh Sahib, Punjab has directed to block the following links with immediate effect:
I. https://www.facebook.com/AdikhamGujarat/ II. https://www.facebook.com/bharatvikas III. https://www.facebook.com/ForBJPGujarat [2] Brief facts giving rise to the present petition can be narrated as under:
[2.1] The petitioner claims himself to be engaged in social activities and associated with (i) Nation First Foundation as Trustee, Gandhinagar, (ii) Niharika Art Foundation - Trustee, Vadodara, (iii) Udgam Charitable Trust - Consultant, (iv) Indian Lions - Member (v) Swarveena - Coordinators, (vi) Bhartiya Janta Party , Gujarat - Incharge, Social Media North Zone.
[2.2] Pursuant to his social activities, the petitioner has created and managing community page on facebook namely "Adikham Gujarat", wherein various posts are being pasted about Gujarat's governance, Page 2 of 29 Downloaded on : Sun Dec 25 04:29:27 IST 2022 R/SCR.A/7851/2022 JUDGMENT DATED: 20/10/2022 measures and achievements of the Central Government of India and State Government of Gujarat as well as about Gujarat politics. The said page claims to have 4,41,000 followers and daily on an average 7 - 9 videos and posts were being put on the said page "Adikham Gujarat" before it has been blocked.
[2.3] That, one F.I.R. came to be lodged with Mulepur Police Station situated within the District : Fatehgarh Sahib at Punjab being C.R. No.I- 37 of 2022 on 30th April 2022 against the unknown person for the offence punishable under Sections 295A, 153, 153A, 505(2), 120B of the Indian Penal Code by one Chaman Mohanlal Qureshi in his capacity of a member of the Aam Aadmi Party. In the said F.I.R., it is alleged that the creators of page viz. (I) https://www.facebook.com/AdikhamGujarat/ , (II) https://www.facebook.com/bharatvikas, and (III) https:// www.facebook.com/ForBJPGujarat are promoting a feeling of enmity, hatred and ill-will between the different religious groups and are instigating people in order to target the population belonging to a caste.
[2.4] Pursuant to the said F.I.R., for the purpose of effective investigation, the SHO Mulepur, District Fatehgarh Sahib, Punjab has approached the learned Judicial Magistrate First Class, Fatehgarh Sahib, Punjab by way of an application No.1306 of 2022 under Section 69A of Page 3 of 29 Downloaded on : Sun Dec 25 04:29:27 IST 2022 R/SCR.A/7851/2022 JUDGMENT DATED: 20/10/2022 the Information Technology Act, 2008 with a prayer to block the said pages and directions for providing certain details. [2.5] Pursuant to the said application, the learned Judicial Magistrate First Class, Fatehgarh Sahib, Punjab, on the same day i.e. on 4 th May 2022, directed to block all the pages including the page created by the present petitioner with immediate effect and till further orders and further directed the facebook to provide certain information to the Investigating Agency for the purpose of effective and proper investigation.
[3] The petitioner, being aggrieved by the aforesaid order, approached this Court by way of this Special Criminal Application invoking the jurisdiction under Article 226(2) of the Constitution of India with the following reliefs:
"14(A)This Honourable Court may be pleased to exercise the powers under Article 226(2) of the Constitution of India and be pleased to issue any appropriate writ, order or direction, declaring and holding that the impugned order at Annexure A dated 04.05.2022 passed in CRM/1306/2022 and/or CRM 200/2022 by the learned Judicial Magistrate First Class, Fatehgarh Sahib at Punjab, is bad in law, illegal and without jurisdiction and without powers and against the statutory provisions of Section 69A of the IT Act, 2008 as well as the rules made thereunder and thereby, be pleased to quash and set aside the Page 4 of 29 Downloaded on : Sun Dec 25 04:29:27 IST 2022 R/SCR.A/7851/2022 JUDGMENT DATED: 20/10/2022 impugned order, and also be pleased to further direct to the respondent to forthwith open/unblock the Facebook account of the petitioner being:
I. 'Bharat Vikas (@bharatvikas)' https://www.facebook.com/bharatvikas II. 'Adikham Gujarat (@AdikhamGujarat)' https://www.facebook.com/AdikhamGujarat/ III. 'For BJP Gujarat (@ForBJPGujarat)' https://www.facebook.com/ForBJPGujarat (B) Pending admission, hearing and final disposal of present petition, this Honourable Court may be pleased to stay the operation, implementation and execution of the impugned order at Annexure A dated 04.05.2022 passed in CRM/1306/2022 and/or CRM 200/2022 by the learned Judicial Magistrate First Class, Fatehgarh Sahib at Punjab, which is at Annexure A to the present petition, and direct the respondent to forthwith open/unblock the Facebook account of the petitioner being:
I. 'Bharat Vikas (@bharatvikas)' https://www.facebook.com/bharatvikas II. 'Adikham Gujarat (@AdikhamGujarat)' https://www.facebook.com/AdikhamGujarat/ III. 'For BJP Gujarat (@ForBJPGujarat)' https://www.facebook.com/ForBJPGujarat (C) This Hon'ble Court may be pleased to grant such other and further relief(s) as may deem just and proper in the facts and circumstances of the case."Page 5 of 29 Downloaded on : Sun Dec 25 04:29:27 IST 2022
R/SCR.A/7851/2022 JUDGMENT DATED: 20/10/2022 [4] I have heard Mr. Jal Soli Unwala, learned Senior Advocate with Ms. Tejal Vashi, learned advocate for the petitioner and Mr. Mitesh Amin, learned Public Prosecutor for the respondent - State of Gujarat.
[5] Mr. Unwala, learned Senior Advocate submitted that the impugned order passed by the learned Judicial Magistrate First Class, Fatehgarh Sahib, Punjab is completely illegal being passed without jurisdiction. Mr. Unwala submitted that by virtue of Section 69A of the Information Technology Act read with the provisions under the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009, there cannot be a direct order by the Court of the learned Judicial Magistrate First class, Fatehgarh Sahib, Punjab, as the designated authority is the only competent authority to pass any such order, therefore, the Magistrate could not have passed any such order directly to block the pages. [6] Mr. Unwala, upon being questioned about the territorial jurisdiction of this Court, submitted that since the order passed by the learned Judicial Magistrate First Class, Fatehgarh Sahib, Punjab without any jurisdiction and by virtue of such illegal order, the present petitioner, who is managing the said page from the Gujarat, part cause of action is said to have arisen in the State of Gujarat, thus, this Court Page 6 of 29 Downloaded on : Sun Dec 25 04:29:27 IST 2022 R/SCR.A/7851/2022 JUDGMENT DATED: 20/10/2022 can exercise its extraordinary jurisdiction under Article 226(2) of the Constitution of India by issuing writ of prohibition on the learned Judicial Magistrate First Class, Fatehgarh Sahib, Punjab and also have the jurisdiction to quash and set aside the impugned order. [7] Mr. Unwala submitted that to invoke the jurisdiction under Article 226(2) of the Constitution of India, the condition sine qua non is the "cause of action". Thus, the resultant effect of such order is also said to have created impact in the State of Gujarat as the petitioner is residing and managing the said page from the State of Gujarat. Accordingly, Mr. Unwala emphatically submitted that this Court can certainly issue a writ of prohibition under Article 226(2) of the Constitution of India upon the learned Judicial Magistrate First Class, Fatehgarh Sahib, Punjab. [8] Mr. Unwala submitted that the word "authority" used in Article 226(2) of the Constitution of India includes the Court of law as well and thereby, this Court has ample power under Article 226 of the Constitution of India to issue prerogative writ, in the instant case, the writ of prohibition upon the learned Judicial Magistrate First Class, Fatehgarh Sahib, Punjab. He further submitted that by way of this petition under Article 226(2) of the Constitution of India, he is seeking writ of prohibition upon the learned Judicial Magistrate First Class, Page 7 of 29 Downloaded on : Sun Dec 25 04:29:27 IST 2022 R/SCR.A/7851/2022 JUDGMENT DATED: 20/10/2022 Fatehgah Sahib, Punjab, prohibiting from proceeding further for want of jurisdiction under the provisions of the Information Technology Act and rules framed thereunder. Mr. Unwala emphatically submitted that the petitioner has invoked the provisions of Article 226 and not Article 227 of the Constitution of India.
[9] To substantiate the aforesaid contention, Mr. Unwala, learned Senior Advocate has relied upon the following decisions:
(i) Navinchandra N. Majithia vs. State of Maharashtra reported in 2000(7) SCC 640
(ii) Cement Workers Mandal vs. Global Cements Ltd (HMP Cements Ltd) and others reported in 2019(20) SCC 517
(iii) Angel Click vs. State of Karnataka and others reported in 2021 SCC Online Bom 682
(iv) Inmark Finance and Investment Company and others vs. Metropolitan Magistrate and others reported in Manu/WB/0084/1991
(v) The Goa Foundation vs. The National Green Tribunal and others [PIL Writ Petition No.4 of 2022 in the High Court of Judicature at Bombay, Goa Seat decided on 21st September 2022].
[10] Mr. Mitesh Amin, learned Public Prosecutor, while adopting all the Page 8 of 29 Downloaded on : Sun Dec 25 04:29:27 IST 2022 R/SCR.A/7851/2022 JUDGMENT DATED: 20/10/2022 submissions and contentions of Mr. Unwala, learned Senior Advocate for the petitioner, submitted that the words "every High Courts" used in the language of Article 226(1) of the Constitution of India by the legislature are with a great purpose. The usage of words "every High Courts shall have power" would mean that under Article 226 of the Constitution of India, every High Courts have power to issue writs, directions and/or orders, otherwise, the legislature could have used word "High Court"
only. Mr. Amin, therefore, submitted that the provisions under Article 226(1) and (2) of the Constitution of India has to be read harmoniously and in purposive manner. Accordingly, Mr. Amin submitted that this Court has full jurisdiction to issue a writ of prohibition upon the learned Judicial Magistrate First Class, Fatehgarh Sahib, Punjab, therefore, he prays this Court to entertain the present petition and further requested to pass necessary orders in the larger interest of justice.
[11] I have heard the learned advocates appearing for the respective parties at great length and have gone through the materials produced on record.
[12] The sum and substance of the arguments canvassed by the learned advocates is that this Court has jurisdiction under Article 226(2) of the Constitution of India to entertain the present petition against the order Page 9 of 29 Downloaded on : Sun Dec 25 04:29:27 IST 2022 R/SCR.A/7851/2022 JUDGMENT DATED: 20/10/2022 passed by the learned Judicial Magistrate First Class, Fatehgarh Sahib, Punjab and to pass necessary orders in the interest of justice. No other and further submissions have been canvassed by the learned advocates appearing for the respective parties, except what are stated hereinabove.
[13] Before deciding the present petition on merits, first of all, its maintainability is to be considered vis-a-vis the jurisdiction of this Court under Article 226(2) of the Constitution of India to issue a writ of prohibition upon the learned Judicial Magistrate First Class, Fatehgarh Sahib, Punjab by keeping in mind following facts:
(I) That the F.I.R. being C.R. No.I-37 of 2022 registered with the Mulepur Police Station, District : Fatehgarh Sahib at Punjab on 30th April 2022 against the unknown person for the offence punishable under Sections 295A, 153, 153A, 505(2), 120B of the Indian Penal Code is the genesis of entire issue and the same is not being challenged and/or sought to be quashed before this Court.
(II) No writs, directions, or orders sought against any of the authorities much less Investigating Agency.
(III) From the prayer clause, it can be seen that no writ of Page 10 of 29 Downloaded on : Sun Dec 25 04:29:27 IST 2022 R/SCR.A/7851/2022 JUDGMENT DATED: 20/10/2022 prohibition is prayed for nor sought for termination of proceedings being CRM/1306/2022. Even no interim relief is prayed for to stay the proceedings either arising from the F.I.R. being C.R. No.I-
37 of 2022 registered with the Mulepur Police Station, District :
Fatehgarh Sahib, Punjab, or from the CRM/1306/2022 although the submissions were made for issuance of a writ of prohibition.
(IV) Plain reading of the prayer clause, Article 226 of the Constitution would give an impression that the jurisdiction under Article 227 of the Constitution is sought to be invoked, however, while arguing the matter, it has been made clear that the petitioner has not invoked Article 227 of the Constitution.
(V) The first informant at whose instance the F.I.R. came to be lodged and the investigation started i.e. Chaman Mohanlal Qureshi has not been joined as a party respondent.
[14] In view of the aforesaid, the sole question that falls for the consideration of this Court is whether this Court can, in its extraordinary jurisdiction under Article 226(2) of the Constitution of India, issue a writ of prohibition to the learned Judicial Magistrate First Class, Fatehgarh Sahib, Punjab by quashing and setting aside the order dated 4 th May 2022?
Page 11 of 29 Downloaded on : Sun Dec 25 04:29:27 IST 2022
R/SCR.A/7851/2022 JUDGMENT DATED: 20/10/2022 [15] So as to decide the question, it would be profitable to refer to the provisions under Articles 226 and 227 of the Constitution of India. It reads thus:
"226. Power of High Courts to issue certain writs (1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose (2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories (3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause ( 1 ), without
(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and Page 12 of 29 Downloaded on : Sun Dec 25 04:29:27 IST 2022 R/SCR.A/7851/2022 JUDGMENT DATED: 20/10/2022
(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand vacated (4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme court by clause ( 2 ) of Article 32"
"227. Power of superintendence over all courts by the High Court (1) Every High Court shall have superintendence over all courts and tribunals throughout the territories interrelation to which it exercises jurisdiction (2) Without prejudice to the generality of the foregoing provisions, the High Court may
(a) call for returns from such courts;
(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and
(c) prescribe forms in which books, entries and accounts shall be Page 13 of 29 Downloaded on : Sun Dec 25 04:29:27 IST 2022 R/SCR.A/7851/2022 JUDGMENT DATED: 20/10/2022 kept by the officers of any such courts (3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein: Provided that any rules made, forms prescribed or tables settled under clause ( 2 ) or clause ( 3 ) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor (4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces."
[16] The plain reading of the provisions under Article 226(1) of the Constitution would suggest that the High Court shall have the power to issue prerogative writs to any person, authority or the government within its territorial jurisdiction.
[17] So far as the provisions under Article 226(2) of the Constitution is concerned, after amendment, the legislature has extended the territorial jurisdiction of the High Courts and in view thereof, the High Court can issue a writ upon the person or authority or government irrespective of their seats and location, if the cause of action in full or in part arisen in the territorial jurisdiction of the concerned High Courts. [18] So far as the provisions under Article 227 of the Constitution are Page 14 of 29 Downloaded on : Sun Dec 25 04:29:27 IST 2022 R/SCR.A/7851/2022 JUDGMENT DATED: 20/10/2022 concerned, though not sought to be invoked in the present case, however, in my opinion, the same is also relevant to be considered and thereby, the plain reading thereof would suggest that the legislature has entrusted responsibility on every High Courts by extending power of superintendence over all the Courts and Tribunals while exercise within its jurisdiction, thereby, the High Courts shall have the power under Article 227 of the Constitution to ensure that the Courts and the Tribunals inferior to the High Courts shall discharge its duties properly and in accordance with law.
[19] So as to consider the question, in my view, it would also be apt to understand the scope and nature of the writ of prohibition. The writ of prohibition is a judicial writ and can be issued against a judicial or quasi- judicial authority, when such authority exceeds its jurisdiction or try to exercise jurisdiction vested in it. It is an order to an inferior Court or a Tribunal preventing it from continuing the proceedings therein on the ground that the proceeding is without or in excess of jurisdiction or contrary to the law of land, statute or otherwise. The paramount object of writ of prohibition is to prevent encroachment of jurisdiction. [20] It would be profitable to refer to and rely upon the judgement of the Division Bench of this Court in the case of Vaghasar Seva Sahakari Page 15 of 29 Downloaded on : Sun Dec 25 04:29:27 IST 2022 R/SCR.A/7851/2022 JUDGMENT DATED: 20/10/2022 Mandli Limited vs. The Mehsana District Cooperative Milk Producers Union Limited [Letters Patent Appeal No.311 of 2021 decided on 7 th January 2022], wherein the Division Bench, after having considered the series of judgements of the Hon'ble Supreme Court, discussed the writ of prohibition. The relevant observations of the Division Bench read thus:
"WRIT OF PROHIBITION:
21 Before adverting to the submissions canvassed on either side, it
is relevant to extract few judgments of the Supreme Court, as to when a Writ of Prohibition could be issued by the High Courts. A writ of prohibition is issued only when a patent lack of jurisdiction is made out. It is true that a High Court acting under Article 226 is not bound by the technical rules applying to the issuance of prerogative writs like the Certiorari, Prohibition and Mandamus in the United Kingdom, yet the basic principles and norms apply to the writ must be kept in view, as observed by the Supreme Court of India in T. C. Basappa vs. Nagappa reported in AIR 1954 SC 440.
22 A writ of prohibition and a writ of certiorari are two complementary writs. A writ of certiorari is issued requiring that the record of the proceedings in some cause or matter pending before an inferior Court be transmitted to the superior Court to be dealt with, for rectifying an order of proceeding. A writ of prohibition is issued for preventing a Tribunal from continuing a proceeding pending in it on the ground that it has no jurisdiction to hold the proceeding. A writ of certiorari is remedial where as writ of prohibition is preventive. 23 In Short and Mellor's Practice of the Crown Office, 2 nd Edition, a writ of prohibition is explained as being a judicial writ or process Page 16 of 29 Downloaded on : Sun Dec 25 04:29:27 IST 2022 R/SCR.A/7851/2022 JUDGMENT DATED: 20/10/2022 issuing out of a Court of superior jurisdiction, directed to an inferior Court of superior jurisdiction, directed to an inferior Court for the purposes of preventing the inferior Court from usurping a jurisdiction with which it is not legally invested or to compel Courts entrusted with judicial duties to keep within the limits of their jurisdiction. 24 In M/s. East India Commercial Company Ltd. Calcutta v. Collector of Customs, Calcutta [AIR 1962 SC 1893 at 1898 (paragraph
26), following Mackonochie v. Lord Penzance (1881) 6 Appeal Cases 424, it was held by the Supreme Court that a "writ of prohibition is an order directed to an inferior Tribunal forbidding it from continuing with proceeding therein on the ground that the proceeding is without or in excess of jurisdiction or contrary to the laws of the land, statutory or otherwise."
25 In S. Govindan Menon vs. Union of India reported in AIR 1967 SC 1274, the Supreme Court held that the jurisdiction for grant of Writ of Prohibition is primarily supervisory and object of the Writ is to restrain courts or inferior Tribunals from exercising jurisdiction which they do not possess at all or else to prevent them from exceeding the limits of their jurisdiction. In other words, the object is to confine the Court or Tribunals of inferior or limited jurisdiction within their bounds. The writ of prohibition lies not only for excess of jurisdiction or for absence of jurisdiction but also in a case of departure from the rules of natural justice. But the Writ does not lie to correct the course, practice or procedure of an inferior Tribunal or a wrong decision on the merits of the proceedings. The writ cannot be issued to a court or an inferior Tribunal for an error of law unless the error makes it go outside its jurisdiction. A clear distinction has therefore, to be maintained between want of jurisdiction and the manner in which it is exercised. If Page 17 of 29 Downloaded on : Sun Dec 25 04:29:27 IST 2022 R/SCR.A/7851/2022 JUDGMENT DATED: 20/10/2022 there is want of jurisdiction than the matter is coarum non judice and a writ of prohibition will lie to the Court or inferior Tribunal forbidding it to continue proceedings therein in excess of jurisdiction. This view was taken following the decision of Regina Versus Controller General of Patents and Designs reported in (1953) 2 WLR 760.
* * *
28 The Supreme Court in M. V. S. Prasada Rao v. State of A. P.
[1985 Lab. I. C. 438], while explaining the scope and effect of a writ of prohibition, laid down:
"Writ of prohibition is an order directing the inferior Tribunal or authority forbidding to continue the proceedings on the premise that it is in excess of the jurisdiction or without authority of law. In other words, it is one of supervisory power to keep the authorities within the confines of law or jurisdiction."
29 In Thirumala Tirupathi Devasthanam and another vs. Thallappaka Ananthacharyulu and another (2003) 8 SCC 134 at paragraph 14, the Supreme Court held as follows:
"On the basis of the authorities it is clear' that the Supreme Court and the High Court have power to issue writs, including a writ of prohibition. A writ of prohibition is normally issued only when the inferior. Court or Tribunal (a) proceeds to act' without or in excess of jurisdiction, (b) proceeds to act in violation of rules of natural justice, (c) proceeds to act under law which is itself ultra vires or unconstitutional, or (d) proceeds to act in contravention of fundamental right. The principal which govern exercise of such power must be strictly observed. A Writ of Prohibition must be issued only in rarest of rare cases. Judicial disciplines of the highest order has to be exercised whilst issuing such writs. It must be remembered that the writ jurisdiction is original jurisdiction distinct from appellate jurisdiction. An appeal cannot be allowed to be disguised in the form of a writ. In other words, this power cannot be allowed to be used ''as a cloak of an appeal disguise''. Lax use of such a power would Page 18 of 29 Downloaded on : Sun Dec 25 04:29:27 IST 2022 R/SCR.A/7851/2022 JUDGMENT DATED: 20/10/2022 impair the dignity and integrity of the subordinate Court and could also lead to chaotic consequence. It would undermine the confidence of the subordinate Court. It was not even argued that there was total lack of jurisdiction in the civil Court. It could not be denied that the civil Court, before which the suit was pending, had powers to decide on the maintainability of the suit and to decide on question of its jurisdiction. The civil Court had jurisdiction to decide whether the suit was barred by Section 14 of the said Act or on principles of res judicata/estoppel. Thus unless there was some very cogent or strong reason the High Court should not have prevented the Court of competent jurisdiction from deciding these questions. In other words the High Court should not usurp the jurisdiction of the civil Court to decide these questions. In the impugned Judgment no reason, much less a cogent or strong reason, has been given as to why civil Court could not be allowed to decide these questions. The impugned judgment does not state that the civil Court had either proceeded to act without or in excess of jurisdiction or that it had acted in violation of rules of natural justice or that it had proceeded to act under law which was ultra vires or unconstitutional or proceeded to act in contravention of fundamental rights. The impugned judgment does not indicate as to why the High Court did not consider it expedient to allow the civil Court to decide on questions of maintainability of the suit or its own jurisdiction. The impugned judgment does not indicate why the civil Court be not allowed to decide whether the suit was barred by virtue of Section 14 of the said Act or on principal of res judicata/estoppel. To be remembered that no fundamental right is being violated when a Court of competent jurisdiction is deciding rightly or wrongly matters before it.""
[21] In view of the exposition of law on the writ of prohibition, thus, it can be said that the Hon'ble Supreme Court has, in case of S. Govinda Menon vs. The Union of India reported in 1967 AIR 1274, held that the jurisdiction for grant of a writ of prohibition is primarily supervisory and the object of the writ is to restrain Courts or inferior Tribunals from exercising a jurisdiction, which they do not possess at all. Therefore, in Page 19 of 29 Downloaded on : Sun Dec 25 04:29:27 IST 2022 R/SCR.A/7851/2022 JUDGMENT DATED: 20/10/2022 my view, the writ of prohibition can be issued by the High Court, which has got the supervisory jurisdiction over the Courts and/or Tribunals. Further, the Hon'ble Supreme Court, in various judgements, sounded a note of caution that unless there are some very cogent or strong reasons, the High Court should not prevent the competent forum from deciding the various questions raised before it including the question of "want of jurisdiction".
[22] Considering the provisions under Articles 226 and 227 of the Constitution of India, in my opinion, when a writ of prohibition is sought, in that event, Article 226 alone cannot be read, but, it has to be read harmoniously with Article 227. The Article 227 has to be considered when the question arises for issuance of a writ of prohibition or certiorari, more particularly, on the subordinate Courts. I say so because the legislature has consciously not inserted the word "Court" in Article 226, as the word "Court" has already been inserted in Article 227 of the Constitution. The purpose of the legislature not to insert the word "Court" in Article 226 appears not to create complication between Articles 226 and 227 of the Constitution of India.
[23] Keeping in mind the aforesaid discussion, we may advert to the present case wherein the petitioner has sought to invoke the Page 20 of 29 Downloaded on : Sun Dec 25 04:29:27 IST 2022 R/SCR.A/7851/2022 JUDGMENT DATED: 20/10/2022 extraordinary jurisdiction of this Court under Article 226 of the Constitution of India seeking writ of prohibition against the learned Judicial Magistrate First Class, Fatehgarh Sahib, Punjab. Considering the provisions of Article 226(1) and (2) of the Constitution of India, in my view, the legislature has used the words "to any person or authority including in appropriate cases, any government", and thereafter, after the amendment, in Article 226(2) of the Constitution, the legislature has, while extending the jurisdiction of the Courts, used the words "within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within such territory". Thus, it can be seen that in the provisions of Article 226 of the Constitution, as discussed hereinabove, when the word "Court" is not inserted in Articles 226(1) and (2) of the Constitution of India, this Court cannot add the word "Court" in the provisions of Article 226 of the Constitution by interpreting the word "authority". This Court is conscious about the powers of the High Court under Article 226(2) of the Constitution to issue writ on the government, authority, or the person not within its territory. However, at the same time, if the arguments canvassed by the learned advocates appearing for the parties are accepted, in that event, the resultant effect would be that the litigant Page 21 of 29 Downloaded on : Sun Dec 25 04:29:27 IST 2022 R/SCR.A/7851/2022 JUDGMENT DATED: 20/10/2022 shall have a choice of High Court before whom the order of any subordinate Court of any State is to be challenged on the basis of Article 226(2) of the Constitution and that situation should not be allowed to occur as the same would be contrary to the purpose and object of Article 227 of the Constitution of India.
[24] In my view, if any order passed by the Court, if without any jurisdiction, the party aggrieved thereof, shall have to approach the concerned High Court of State within whose jurisdiction and/or under whose supervision the said Court is situated. I say so because, under Article 227 of the Constitution of India, the responsibility has been entrusted on the concerned High Court to ensure that the subordinate Courts are acting in accordance with law.
[25] The territorial jurisdiction under Article 226(2) of the Constitution of India, can only be invoked if the action and/or order by the authority, government, or person has violated the fundamental rights and part of cause of action arising in the territory of the concerned High Court regardless the seat and/or location of the authority, government or the person. The writ of prohibition, when sought against the competent Court, in that event, in my considered opinion, one cannot obliviate the provisions of Article 227 of the Constitution of India. There is a Page 22 of 29 Downloaded on : Sun Dec 25 04:29:27 IST 2022 R/SCR.A/7851/2022 JUDGMENT DATED: 20/10/2022 distinction between the writ issued against the government, authority, or any other person and the writ issued against the subordinate Courts. Considering the provisions under Articles 226 and 227 of the Constitution of India, if the writ of prohibition is to be issued on the competent Court, in that event, the cause of action would have hardly of any significance. What is important is the concerned High Court who is having superintendence over the Courts or Tribunals on which the writ of prohibition is sought to be issued.
[26] Considering the nature of prayer of the petition, it appears that the petitioner has, though orally submitted the issuance of writ of prohibition, but, in substance, prayed for quashment of the order dated 4th May 2022 passed in CRM/1306/2022 by the learned Judicial Magistrate First Class, Fatehgarh Sahib, Punjab, which, in my view, can be said to be in the nature of seeking writ of certiorari. Whenever the writ of prohibition is sought, there has to be specific prayer to the effect seeking quashment of proceedings pending in the concerned Court. However, in the instant case, the petitioner has neither prayed for quashment of the proceeding nor prayed any relief much less an interim in nature of staying of the proceedings. Therefore, even on that additional ground, the prayer, as sought for issuance of a writ of Page 23 of 29 Downloaded on : Sun Dec 25 04:29:27 IST 2022 R/SCR.A/7851/2022 JUDGMENT DATED: 20/10/2022 prohibition, cannot be considered.
[27] So far as the judgement relied upon by the learned Senior Advocate for the petitioner is concerned, more particularly, in the case of Navinchandra N. Majithia (supra), in that case, the appellant filed the writ petition against the State of Maharashtra, the State of Meghalaya, Special Superintendent of Police, C.I.D., Shillong and others praying, inter alia, to quash the complaint, or in the alternative, (a) to issue a writ of mandamus directing the State of Meghalaya to transfer the investigation being conducted by the officers of the C.I.D. at Shillong to the Economic Offences Wing, General Branch of C.I.D., Mumbai or any other Investigating Agency of the Mumbai police and (b) to issue a writ of prohibition or any other order or direction restraining the Special S.P. Police, C.I.D., Shillong and/or investigation of the Meghalaya Police from taking any further steps in respect of the complaint lodged at Shillong. What is pertinent to note that, the distinguishable fact, in the said case, the petitioner therein has not challenged any order of the "Court". However, in the instant case, the petitioner has admittedly not challenged the quashment of an F.I.R. being C.R. No.I-37 of 2022 registered with the Mulepur Police Station, District : Fatehgarh Sahib at Punjab neither the petitioner has sought any writ against the authority including the Investigating Agency of Punjab and only challenged the Page 24 of 29 Downloaded on : Sun Dec 25 04:29:27 IST 2022 R/SCR.A/7851/2022 JUDGMENT DATED: 20/10/2022 order passed by the learned Judicial Magistrate First Class, Fatehgarh Sahib, Punjab. Thus, according to me, the facts of Navinchandra N. Majithia (supra) are materially different as that of the case on hand and thereby, the ratio laid down by the Hon'ble Supreme Court in the case of Navinchandra N. Majithia (supra) is not applicable. [28] So far as the judgement relied upon by the learned Senior Advocate for the petitioner in the case of Cement Workers Mandal (supra) is concerned, the Hon'ble Supreme Court held that the Gujarat High Court has territorial jurisdiction under Article 226(2) of the Constitution of India on the ground that the factory of the company situated at Porbandar in the State of Gujarat and the Labour Court at Junagadh, which is also a part of State of Gujarat, entertained the dispute between the Union and the respondent therein - company and passed a recovery order and the relief pertains to non-payment of outstanding wages payable to the workers at Gujarat, and thereby, the Court held that the Gujarat High Court has the territorial jurisdiction. However, in the instant case, the offence alleged to have committed in the State of Punjab, an F.I.R. came to be registered in the State of Punjab and the impugned order is passed by the learned Judicial Magistrate First Class, Fatehgarh Sahib, Punjab, and thereby, merely because the petitioner is residing in the State of Gujarat would not give him a right Page 25 of 29 Downloaded on : Sun Dec 25 04:29:27 IST 2022 R/SCR.A/7851/2022 JUDGMENT DATED: 20/10/2022 to challenge the order of the "Court" of Punjab before this High Court, who has got no supervisory power on the learned Judicial Magistrate First Class, Fatehgarh Sahib, Punjab. Thus, the judgement relied upon in the case of Cement Workers Mandal (supra) is also not applicable in the case on hand.
[29] So far as the judgement relied upon by the learned Senior Advocate for the petitioner in the case of Angle Click (supra) is concerned, the jurisdiction of High Court of Bombay appears to have been invoked for non-compliance of procedure prescribed in Section 101 read with Section 105 of the Cr.P.C. by the police officer of the State of Karnataka within the territorial jurisdiction of the Court at Nagpur. It appears from the said judgement that the Bombay High Court refrained itself from taking any decision on merits holding that the Court in Karnataka is better place than us to consider and decide such objections, however, so far as the execution of warrant is concerned, according to the Bombay High Court, there is violation of mandatory procedure under Sections 101 and 105 of the Cr.P.C., and thereby, only because of that violation, the seizure of the rice bags declared to be illegal. It is pertinent to note that the Bombay High Court neither decided anything about the F.I.R. / proceedings pending at Karnataka nor even considered anything Page 26 of 29 Downloaded on : Sun Dec 25 04:29:27 IST 2022 R/SCR.A/7851/2022 JUDGMENT DATED: 20/10/2022 about the power of issuance of warrant rather the Bombay High Court has permitted to issue fresh warrant. Further, what is most important to note is that the Bombay High Court has invoked the provisions under Article 226(2) of the Constitution of India for violation committed by the "police authority" of Karnataka within the territorial jurisdiction of the Bombay High Court at Nagpur. However, in the case on hand, the challenge by the petitioner is not of any violation or illegality committed by any of the authorities nor challenge the investigation and the challenge is made to the order passed by the Criminal Court. Hence, the facts of the case relied upon by the petitioner in Angel Click (supra) and the facts of the case on hand are materially different, and thereby, the judgement of the High Court of Bombay in the case of Angel Click (supra) is not applicable.
[30] So far as the judgement relied upon by the learned Senior Advocate for the petitioner in the case of Inmark Finance and Investment (supra) is concerned, in the said case, the petitioner therein approached the Calcutta High Court for quashing of the criminal complaint lodged by the complainant therein before the learned Magistrate, Bombay, for the offence punishable under Section 138 of the Negotiable Instruments Act. However, in the instant case, as stated hereinabove, while seeking writ of prohibition, the petitioner has not sought quashment of any Page 27 of 29 Downloaded on : Sun Dec 25 04:29:27 IST 2022 R/SCR.A/7851/2022 JUDGMENT DATED: 20/10/2022 proceeding, F.I.R., etc., and thereby, in my view, the decision of the Calcutta High Court in the case of Inmark Finance and Investment (supra) is not applicable to the facts of the present case. [31] So far as the decision in the case of Goa Foundation (supra) is concerned, what was challenged before the High Court of Bombay is about the administrative action of the Chairperson of the NGT, who issued direction that the cases those are being heard by the Western Zonal Bench of the National Green Tribunal, Pune, would be taken up by the Special Bench sitting in New Delhi and comprising members of the Northern Bench joined on VC by members of the Western Zonal Bench. Therefore, in substance, what was challenged before the Bombay High Court was the administrative action of the main Bench of NGT and thereby, the provisions under Article 226(2) of the Constitution of India came to be invoked. In the instant case, as noted hereinabove, what is challenged in the present petition is the order passed by the learned Judicial Magistrate, Fatehgarh Sahib, Punjab, admittedly, not within the superintendence of this Court, and thereby, the facts in the case of Goa Foundation (supra) and the facts in the case on hand are clearly distinguished, and thus, the same cannot be applicable. [32] In view of the aforesaid discussion, I am of the considered opinion Page 28 of 29 Downloaded on : Sun Dec 25 04:29:27 IST 2022 R/SCR.A/7851/2022 JUDGMENT DATED: 20/10/2022 that this Court cannot have jurisdiction to issue a writ of prohibition to the Court of the learned Judicial Magistrate Court, Fatehgarh Sahib, Punjab, by invoking its jurisdiction under Article 226(2) of the Constitution of India, however, liberty is reserved to the petitioner to approach the appropriate Court by way of appropriate proceedings, as may be advised.
[33] I answer the question accordingly.
[34] Resultantly, this petition is not entertained on the ground of jurisdiction, and accordingly, dismissed. However, it is clarified that I have otherwise not expressed any opinion on the merits of the case.
(NIRAL R. MEHTA,J) CHANDRESH Page 29 of 29 Downloaded on : Sun Dec 25 04:29:27 IST 2022