Upendra Singh Maniyari vs Jagmohan Singh & Ors.

J.S. Khehar, C.J.—Jagmohan Singh filed Criminal Writ Petition No.898 of 2009 under Article 226 of the Constitution of India, wherein he sought a writ in the nature ofcertiorari, for quashing a first information report dated 15.09.2009, lodged by Upendra Singh Maniyari, on the alleged commission of the offence of abetment to suicide, under Section 306 of the Indian Penal Code. The aforesaid first information report was registered as Crime Case No. 97 of 2009 at Police Station Basant Vihar in District Dehradun.

In Criminal Writ Petition No. 898 of 2009 it was alleged by the aforesaid Jagmohan Singh alias Raj, that his marriage was settled with Sweta alias Ritu, sister of the aforesaid Upendra Singh Maniyari. The engagement ceremony between Jagmohan Singh and Sweta alias Ritu was held on 14.01,2009, whereafter, the parties agreed, that the marriage ceremony would be held on 28.09.2009. On 13/14.09.2009 Sweta alias Ritu consumed poison. She died on 14.09.2009. On 15.09.2009 Upendra Singh Maniyari, the brother of the deceased, lodged the aforesaid first information report alleging that his sister Sweta alias Ritu had committed suicide due to demand of dowry, by Jagmohan Singh alias Raj.

A learned single Judge, after examining the contents of the first information report as also the SMS (short message service) addressed by Jagmohan Singh alias Raj to Sweta alias Ritu, dated 13.09.2009, arrived at the conclusion that no offence under Section 306 of the IPC was made out. Accordingly, the learned single Judge, while allowing the writ petition on 18.11.2009 quashed the first information report dated 15.09.2009 lodged by Upendra Singh Maniyari.

Through the instant "Special Appeal", Upendra Singh Maniyari, the brother of the deceased Sweta alias Ritu, has assailed the order passed by the learned single Judge dated 18.11.2009, allowing Criminal Writ Petition No. 898 of 2009.

Before we could proceed with the determination of the controversy on merits, we were confronted with the issue of maintainability of the instant "Special Appeal". Learned counsel for respondent No.1 (Jagmohan Singh alias Raj), invited our, attention to Rule 5 contained in Section C of Chapter VIII of the Rules of the Court, 1952(which provides for an intra court appeal) and submitted, that the impugned order dated 18.11.2009, having been rendered by the learned single Judge in exercise of "criminal jurisdiction" vested in him, was not appealable by way of a "Special Appeal", to this Court.

The same objection, as has been noticed in the foregoing paragraph, has also been raised in Special Appeal No. 220 of 2009 (Rajesh Dube versus State of Uttarakhand and others) and Special Appeal No. 225 of 2009 (Dinesh Lal Verma v. State of Uttarakhand and others). For adjudication on the issue of maintainability, all the aforementioned Special Appeals are being taken up togetherr. With the consent of learned counsel representing the rival parties, Special Appeal No.216 of 2009 shall be treated as the lead case.

Keeping in view the importance of the issue involved Shri L.P. Naithani, the then Advocate General, Uttarakhand was also requested to assist the Court.

It is by now well settled, that no remedy (whether of appeal, revision or review) is available, unless it has been specifically provided for. Only a court of competent jurisdiction, duly vested with express or implied power, can adjudicate on a matter. It is definitely not within the purview of a court on its judicial side, to vest itself, or any court subordinate to it, with any such authority. In so far as the instant issue is concerned, reference can be made to the decision rendered in A.R. Antulay v. R.S. Navak and another. (1988) 2 SCC 602 : (AIR 1988 SC 1531) (Criminal Appeal No. 468 of 1986, decided on 29.04.1988), wherein it was observed as under :

"The creation of a right to an appeal is an act which requires legislative authority, neither an inferior court nor the superior Court nor both combined can create such a right, it being one of limitation and extension of jurisdiction".

On the same analogy, but in a different context, in Hari Singh Mann v. Harbhajan Singh Bajwa and others, (2001) 1 SCC 169 : (AIR 2001 SC 43) it was observed as under:

"There is no provision in the Code ofCriminal Procedure authorising the High Court to review its judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Criminal Procedure Code. Section 362 of the Criminal Procedure Code has extended the bar of review, not only to the judgment, but also to the final orders other than the judgment. Section 362 is based on an acknowledged principle of law that once a matter is finally disposed of by a court, the said court in the absence of a specific statutory provision becomes functus office and disentitled to entertain a fresh prayer for the same relief unless the former order of final disposal is set aside by a court of competent jurisdiction in a manner prescribed by law. The court becomes functus officio the moment the official order disposing of a case is signed."

We can therefore, conveniently conclude by observing, that a remedy in law must be specifically provided for, and further that, a court in exercise of its judicial functions cannot suo motu provide for any remedy.

In so far as the controversy in hand is concerned, whilst it is the case of the appellants before us, that the remedy to file a "Special Appeal" is available to the appellants under Rule 5, contained in Part C, of Chapter VIII of the "Rules of the Court, 1952" as the impugned order passed by the learned single Judge, is not excluded from the purview of the aforesaid rule; it is the contention of the learned counsel for the respondents, that no such remedy is available, to the appellants as the impugned order had been passed by a learned single Judge in exercise of "criminal jurisdiction" vested in him. Stated differently, the appellants before this court pleaded that the order sought to be impugned through the instant Special Appeal, had been passed by a learned single Judge of this court in exercise of the "writ jurisdiction" under Article 226 of the Constitution of India, and not in exercise of "criminal jurisdiction", and as such, the objection raised on behalf of the respondents is of no consequence. In order to repudiate the contention advanced by the learned counsel for the respondents, two submissionswere advanced by the learned counsel for the appellants. Firstly, that "writ jurisdiction" exercised by this Court under Article 226 of the Constitution, is separate and distinct from "civil jurisdiction" or "criminal jurisdiction", and as such, an order passed by the High Court in exercise of "writ jurisdiction" could not be considered as having been passed by it, either in exercise of "civil jurisdiction" or in exercise of "criminal jurisdiction". And secondly, the meaning of the term "criminal jurisdiction" has to be ascertained from rules 10 and 11, contained in Section D, of Chapter VIII of the "Rules of the Court, 1952". The impugned order, according to learned counsel, can not be treated as one, having been passed under either of the aforesaid provisions. As such, according to learned counsel, the objection raised by the respondents, to the maintainability of the instant "Special Appeal" is of no consequence. In view of the submissions advanced by the learned counsel for the rival parties, it is imperative for this Court, while adjudicating upon the present controversy, to determine, firstly, whether the impugned order passed by the learned single Judge was rendered in exercise of "criminal jurisdiction" vested in this Court. In answering this question, it would also be essential for this court to determine, whether an order passed by a learned single Judge in exercise of jurisdiction vested in the High Court under Article 226 of the Constitution of India, can be treated as having been passed by it in exercise of "criminal jurisdiction".

Rule 5 contained in Section C, of Chapter VIII, of the "Rules of the Court, 1952" is being extracted hereunder:

"5. Special Appeal. An appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of appellate jurisdiction) in respect of a decree or order made by a Court subject to the Superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of superintendence or in the exercise of criminal jurisdiction (or in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution, in respect of any judgment, order or award(a) of a Tribunal, Court orstatutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution, or (b) of the Government or any Officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act of one Judge."

Since learned counsel for the appellants in order to support their assertions had also relied on Rules 10 & 11, contained in Section D, of Chapter VIII, of the "Rules of the Court, 1952", the aforesaid two Rules are also being extracted hereunder:

"10. Ordinary original criminal jurisdiction. The Court shall have ordinary original criminal jurisdiction in respect of all persons within its territorial jurisdiction and shall in the exercise of such jurisdiction, be empowered to try all persons brought before it in due course of law,

Extraordinary original criminal jurisdiction. The Court shall have extraordinary original criminal jurisdiction over all persons residing in places within the jurisdiction of any Court subject to its superintendence and shall have authority to try at its discretion any such persons brought before it on charge preferred by any Magistrate or other officer specially empowered by the Government in that behalf."

According to the learned counsel for the appellants, there can be no dispute that Rule 10, extracted herein above, could not be deemed to have been invoked by this Court when it passed the impugned order disposing of Criminal Writ Petition No. 898 of 2009, inasmuch as, the said Rule requires, that in exercise of "ordinary criminal original jurisdiction", this court would have the authority to try "... all persons brought before it in due course of law." Since no one was brought before the learned single Judge, to face trial, it is submitted on behalf of the appellants, that Rule 10, contained in Section D, of Chapter VIII, of the "Rules of the Court, 1952" had most definitely not been invoked, by the learned single Judge, while passing the impugned order dated 18.11.2009.

In our considered view also there is hardly any basis to contest, the submission advanced by the learned counsel for the appellants, as has been noticed in the foregoing paragraph. In so far as the interpretation of Rule 10 is concerned, the language of the provision, does not leave any room for ambiguity. The Rule extends the "ordinary original criminal jurisdiction" vested in the High Court, to all persons who are located within the territorial jurisdiction of the High Court ; the Rule further mandates, that the High Court in the exercise of its jurisdiction would have the authority to try ". . . all persons brought before it in due course of law." The latter part of Rule 10 relied upon by the appellants, and also referred to by us hereinabove, is sufficient to accept this submission advanced by the learned counsel for the appellants. In fact even the learned counsel for the respondents did not repudiate the instant submission advanced on behalf of the respondents. The submission advanced on behalf of the appellants (on the issue whether the impugned order passed by the learned single Judge, had been passed under Rule 10 aforesaid) can be examined from another angle as well. Undisputedly the impugned order dated 18.11.2009, disposing of Criminal Writ Petition No.898 of 2009 had been passed in a case filed under Article 226 of the Constitution of India. When this court dispose of a controversy brought before it under Article 226 of the Constitution of India, it does so in exercise of the extraordinary jurisdiction vested in it. Since the impugned order had been passed by the learned single Judge in exercise of "extraordinary" jurisdiction vested in him, as against "ordinary" jurisdiction contemplated under Rule 10 aforesaid, it can be safely concluded, that the impugned order dated 18.11.2009 had not been passed by the learned single Judge of this court in furtherance of the jurisdiction vested in it under Rule 10, contained in Section D, of Chapter VIII of the "Rules of the Court, 1952. Accordingly, we have no difficulty, whatsoever, to hold that the impugned order in the present case could not be deemed to have been passed by this Court in exercise of jurisdiction vested in itunder Rule 10, contained in Section D of Chapter VIII, of the "Rules of Court, 1952".

The scope of the controversy, therefore, gets further narrowed. If the learned single Judge, can be stated to have passed the impugned order, under Rule 11, contained in Section D, of Chapter VIII of the "Rules of the Court, 1952", then and only then, the claim of the respondents can be accepted. On the contrary, if the appellants can show and establish, that while passing the impugned order, the learned single Judge did not even exercise the authority vested in him under Rule 11, contained in Section D, of Chapter VIII, of the "Rules of Court, 1952", then the appellants will be able to succeed in asserting, that the impugned order which is subject matter of .challenge in the present Special Appeal, is not one passed by this Court in exercise of its "criminal jurisdiction". In that case, the sole basis canvassed at the hands of the respondents, to contest the maintainability of the instant "Special Appeal", would stand repudiated. Accordingly, this Court will conclude, one way or the other, whether the "Special Appeal" filed by the appellants herein, is maintainable in law.

To understand the true effect of Rule 11, contained in Section D, of Chapter VIII, of the "Rules of the Court, 1952", it is essential in the first instance to determine the true meaning of the words "extraordinary", "original" and "criminal jurisdiction" used therein. It is only thereafter, that we shall be able to draw conclusions, on the submissions advanced by the learned counsel for the rival parties. We shall, therefore, venture to do so, before proceeding with the matter any further.

We may first commence by defining the term "original jurisdiction". For the aforesaid purpose, reference may first be made to the decision in Ladli Parshad Jaiswal v. The Karnal Distillery Co., Ltd. Karnal and others (1963) 33 Comp Cas 593 : (AIR 1963 SC 1279) wherein the Apex Court observed as under:

"There is no warrant for making a distinction between an appeal filed against the judgment of a single Judge exercising original jurisdiction and a judgment in exercise of "appellate jurisdiction". There is nothing inthe context to support the plea that the expression "court immediately below" includes a Judge of the High Court trying a proceeding in exercise of original jurisdiction, i.e. sitting as a court of first instance, but not a Judge exercising appellate jurisdiction." (emphasis is ours)

The term court "original jurisdiction" also came up for consideration at the hands of the Apex Court in A. Rangaswamy lyengar v. Pattammal (alias) Raialakshmi Ammal and another. 1971 (1) Supreme Court Cases 274 : (AIR 1971 SC 658) wherein the court has observed as under:

"The expressions "a court immediately below" and "a court subordinate to the High Court" had different meanings and were, therefore, not one and the same. The test for determining whether an aggrieved party has a right to appeal, other conditions being fulfilled, is not whether the judgment is of a court subordinate to the High Court but whether the judgment is of a court immediately below and that a single Judge of the High Court hearing a proceeding either as a court of original jurisdiction or in exercise of appellate jurisdiction is a court immediately below the Division Bench which hears an appeal against his judgment under the relevant clause of the Letters Patent." (emphasis is ours)

In both the cases noticed hereinabove i.e. in Ladli Parshad Jaiswal''s case (supra) and A. Rangaswamy lyengar''s case (supra), the Apex Court divided the jurisdiction exercised by the High Court into two categories i.e. "appellate jurisdiction" and "original jurisdiction". Where an issue is determined as a matter of appeal, the court would be exercising appellate jurisdiction, however, where the High Court is a court of first instance, i.e., the court in which proceedings have been initiated, the court would be exercising its "original jurisdiction". The inference drawn by us hereinabove also finds support from the decision in Shah Babulal Khimii v. Javaben D. Kania and another. (1981) 4 SCC 8 : (AIR 1981 SC 1786) wherein the Apex Court projected its view in the following words:

"There is also no force in the contention that while Order 43 makes provision for appeal from one court to another, it is not intended to apply to an appeal from one Judge of the High Court to a Bench of the same Court. If Order 43 Rule 1 were to apply to orders passed by the single Judge (Trial Judge), the order would be one passed by only one Judge of the High Court and, therefore, in the context of the original jurisdiction exercised by a single Judge of the High Court, the appellate jurisdiction would lie with the Division Bench as contemplated by the Letters Patent and the Rules framed by the High Court." (emphasis is ours)

Although contextually different, yet the same conclusion emerges from the decision of the Supreme Court in Jagdish Singh v. Madhuri Devi (2008) 10 SCC 497 : (AIR 2008 SC 2296), wherein the Court observed thus;

"At the same time, however, the appellate court is expected, nay bound, to bear in mind the finding recorded by the trial court on oral evidence. It should not forget that the trial court had an advantage and opportunity of seeing the demeanour of witnesses and, hence, the trial court''s conclusions should not normally be disturbed. When the court of original jurisdiction has considered oral evidence and recorded findings after seeing the demeanour of witnesses and having applied its mind, the appellate court is enjoined to keep that fact in mind." (emphasis is ours)

Accordingly, there can be no doubt that "original proceedings" and "original jurisdiction" has reference to the court, wherein the litigation originates. We, therefore, have no hesitation in concluding that reference to "original jurisdiction" in Rule 11, contained in Section D, under Chapter VIII of the "Rules of Court, 1952" essentially means a proceeding, in respect of a controversy, which originates in the High Court itself.

The next step in the process of interpretation would be to ascertain the meaning and effect of the term, "criminal jurisdiction". In this behalf the decision rendered by the Apex Court in M.S. Ahlawat v. State of Haryana and another, (2000) 1 SCC 278 : (AIR 2000 SC 168) may possibly bring to light the connotation of the term. In the aforestated case, during the course of proceedings before the Supreme Covxrt,M.S.

was proceeded against and punished, for the offence under Section 340 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.), Before doing so, the Apex Court had issued a notice to M.S. Ahlawat requiring him to show cause. Having received his response, an order was passed by the Court, holding him guilty of the offence under Section 340 of the Cr.P.C. The aforesaid order passed by the Supreme Court came to be assailed by M.S. Ahlawat. In the challenge raised by him, the Court held as under:

"The Supreme Court has always adopted the procedure prescribed by Section 195 Cr.P.C. whenever it is noticed that proceedings before it have been tampered with by production of forged or false documents or any statement has been found to be false. In the present case also the Supreme Court could not have assumed jurisdiction by issue of a notice proposing conviction for forgery and making false statements at different stages in the Court punishable under Section 193 IPC without following the procedure prescribed under Sections 195 and 340 Cr.P.C. Primarily the Supreme Court does not exercise any original criminal jurisdiction in relation to offences arising under Section 193 IPC and secondly the seriousness of the charge arising under Section 193 IPC requires an elaborate inquiry and trial into the matter by the competent criminal court and a summary inquiry by mere issuing a showcause notice and considering affidavits or inquiry reports would not tantamount to the procedure provided under the Cr.P.C. The order made by the Supreme Court convicting the petitioner under Section 193 IPC is, therefore, one without jurisdiction and without following the due procedure prescribed under law. Though it is not clear from the impugned order whether the powers under Article 142 of the Constitution were exercised to convict the petitioner under Section 193 IPC, one can presume that it is by exercise of that power that the impugned order had been made for there is no other provision enabling the passing of such an order."

In order to record a finding on the instant & \\Jfta vaaSXex, reference must also bemade to the decision rendered in Savitri w/o Govind Singh Rawat v. Govind Singh Rawat, (1985) 4 Supreme Court Cases 337 : (AIR 1986 SC 984), wherein it was observed as under:

"The jurisdiction of a magistrate under Chapter IX of the Code is not strictly a criminal jurisdiction. While passing an order for maintenance under it, the magistrate does not impose any punishment on such person for a crime committed by him. It does not really create any serious new obligation unknown to Indian social life. It contains a summary remedy for securing some reasonable sum by way of maintenance, subject to a decree, if any, which may be made in a civil court in a given case provided the Personal Law applicable to the person concerned authorises the enforcement of any such right to maintenance." (emphasis is ours)

The same meaning was ascribed to the terms "criminal jurisdiction" (as in the extract reproduced above) in Bhimappa Basappa Bhu Sannavar v. Laxman Shivarayappa Samagouda and others, (1970) 1 Supreme Court Cases 665 : (AIR 1970 SC 1153) where the Court held as under

"In criminal jurisdiction means ordinarily a proceeding for the prosecution of a personalleged to have committed an offence.......itmust mean a proceeding which at the end results either in discharge, conviction, or acquittal of an accused person." (emphasis is ours)

It is, therefore, apparent that the exercise of "criminal jurisdiction" involves the adjudication of a matter pertaining to the commission of an offence, leading to the infliction of a punishment, in case the commission of the offence is established.

For understanding the term "criminal jurisdiction" reference may also be made to the decision rendered by the Apex Court in Ram Chandra Aggarwal and another v. The State of Uttar Pradesh and another. AIR 1966 Supreme Court 1888, wherein the following view was expressed by the Court:

"No doubt, the Magistrate, while discharging his function under the Code of Criminal Procedure under S. 145(1), would be exercising his criminal jurisdiction, because that is the only kind of jurisdiction which the Code confers upon the Magistrates but when the Magistrate refers the question to a civil Court he does not confer a part of his criminal jurisdiction upon the civil Court. There is no provision under which he can clothe a Court or a tribunal which is not specified in the Criminal Procedure Code with criminal jurisdiction,"

The Supreme Court, in A.R. Antulay v. Ramdas Sriniwas Nayak and another, (1984) 2 SCC 500 : (AIR 1984 SC 718) Criminal Appeal No.247 of 1983, decided on 16.02.1984) also noticed as under:

"The Court of Special Judge is a court of original jurisdiction under the High Court. As such, in order to make it functionally oriented some powers were conferred by the statute setting up the court. Except those specifically conferred and specifically denied, it has to function as a court of original criminal jurisdiction not being hidebound by the terminological status/description of Magistrate or a Court of Session. Therefore, the view that a Special Judge must fit in the slot of a ''Magistrate" or a ''Court of Session'' in order to make the provisions of Cr.P.C. applicable is erroneous. The provisions in the Cr.P.C. relating to trial of warrant cases by Magistrate, which has been made applicable by Section 8 (1) of the Act, include both the trial of cases initiated upon police report and those initiated otherwise than on police report. In order to give full effect to Section 8 (1), the word ''Special Judge'' has to be read in Sections 238 to 250 Cr.P.C. wherever the expression ''Magistrate'' occurs. This is legislation by incorporation." (emphasis)

The aforesaid observations made by the Supreme Court lead to the clear inference, that a special legislation which constitutes a Code in itself, can also be treated as falling within the scope and ambit of the term "criminal jurisdiction", if it has trappings of the same. Essentially therefore, it emerges that "criminal jurisdiction" is entertained by a court''to inflict a prescribed punishment, for a stipulated offence, after following the procedure specified under the law. But then, the decision in Ram Chandra Aggarwal''s case(supra) reveals that there is a clear and separate demarcation between "criminal jurisdiction" and "civil jurisdiction", and further that, no court has the authority to vest "criminal jurisdiction" on any other Court.

This leads us to the last leg in the matter, of the interpretation. We shall now focus on the term "extra ordinary." While examining judicial precedents for an inference, reference in the first instance, must be made to the judgment rendered in State of Uttar Pradesh and others v. Dr. Vijay Anand Maharaj, AIR 1963 SC 946, wherein observations were made to the term "extraordinary original jurisdiction" wherein, the Court recorded as under:

"The High Court in exercise of its power under Article 226 of the Constitution exercises original jurisdiction, though the said jurisdiction shall not be confused with the ordinary civil jurisdiction of the High Court. This jurisdiction, though original in character as contrasted with its appellate and revisional jurisdictions, is exercisable throughout the territories in relation to which it exercises jurisdiction, and may, for convenience, be described as extraordinary original jurisdiction." (emphasis is ours)

As a matter of plain English language, the word "extraordinary", means something beyond or in addition to, "ordinary". This impression is also apparent from the observations recorded by the Supreme Court in A.R. Antulay v. R.S. Nayak, (1988) 2 Supreme Court Cases 602 : (AIR 1988 SC 1531) wherein the Court held thus"

"213. The argument of infringement of Article 21 is based essentially on the premise that the accused will be deprived, in cases where the trial is withdrawn to the High Court of a right of first appeal. This fear is entirely unfounded. I think Shri Jethmalani is right in contending that where a case is thus withdrawn and tried by the Court, the High Court will be conducting the trial in the exercise of its extraordinary original criminal jurisdiction. As pointed out by Sabyasachi Mukharji, J., the old Presidency Town High Courts once exercised original jurisdiction in criminal matters but this has since been abolished. Onepossible view is that now all original criminal jurisdiction exercised by High Courts is only extraordinary original criminal jurisdiction. Another possible view is that still High Courts do exercise ordinary original criminal jurisdiction in habeas corpus and contempt of court matters and also under some specific enactments (e.g. Companies Act Sections 454 and 633). They can be properly described as exercising extraordinary original criminal jurisdiction, where though the ordinary original criminal jurisdiction is vested in a subordinate criminal court or Special Judge, a case is withdrawn by the High Court to itself for trial. The decisions in Madura Tirupparankundram etc. v. Alikhan Sahib, Kavasji Pestonji v. Rustomji Sorabji: (AIR 1949 Bom 42), Sunil Chandra Roy v. State (AIR 1954 Cal 305), Peoples'' Insurance Co. Ltd. v. Sardul Singh Caveshar (AIR 1961 Punjab 87) and People''s Partiotic Front v. K.K. Birla : (1984 Cri LJ 545) (Delhi) cited by him amply support this contention. If this be so, then Shri Jethmalani is also right in saying that a right of first appeal to the Supreme Court against the order passed by the High Court will be available to the accused under Section 374 of the 1973 CrPC. In other words, in the ordinary run of criminal cases tried by a Court of Sessions, the accused will be tried in the first instance by a court subordinate to the High Court; he will then have a right of first appeal to the High Court and then can seek leave of the Supreme Court to appeal to it under Article 136. In the case of a withdrawn case, the accused has the privilege of being tried in the first instance by the High Court itself with a right to approach the apex court by way of appeal. The apprehension that the judgment in the trial by the High Court, in the latter case, will be final, with only a chance of obtaining special leave under Article 136 is totally unfounded. There is also some force in the submission of Shri Jethmalani that, if that really be the position and the appellant had no right of appeal against the High Court''s judgment, the Supreme Court will consider any petition presented under Article 136 in the light of the inbuilt requirements of Article 21 and dispose of it as if it were itself a petition of appealfrom the judgment (see, in this context, the observations of this Court in P.S.R. Sadhanantham v. Arunachalam : (AIR 1980 SC 856). That, apart it may be pointed out, this is also an argument that would be valid in respect even of ordinary criminal trials withdrawn to the High Court under Section 407 of the CrPC and thus, like the previous argument regarding Article 14, indirectly challenges the validity of Section 407 itself as infringing Article 21. For the reasons discussed, I have come to the conclusion that an accused, tried directly by the High Court by withdrawal of his case from a subordinate court, has a right of appeal to the Supreme Court under Section 374 of the CrPC. The allegation of an infringement of Article 21 in such cases is, therefore, unfounded," (Emphasis is ours)

One would, therefore gather, that ordinarily a trial, say, under Section 374 of the Cr.P.C. would be conducted by the Court of Session. Had it been so conducted by the Court of Session, the jurisdiction exercised by the said court would have been "ordinary" original criminal jurisdiction. Having adopted a course different, from the one which ought to have normally been followed, the High Court having assumed to itself the authority to try a matter (normally and naturally falling within the jurisdiction of a court subordinate to it), renders itself a court wherein proceedings will be conducted as a matter of "original jurisdiction." The High Court, would, in the aforesaid eventually, be exercising its "original criminal jurisdiction." However, since the process adopted is not the one ordinarily stipulated, for conducting the said trial, the jurisdiction exercised will have to be further classified as "extra ordinary." In fact, Section 374 of the Cr.P.C, sufficiently clarifies this aspect of the matter. Therefore, having withdrawn the trial to itself the jurisdiction exercised by the High Court in such a matter would be fully described as "extra ordinary original criminal jurisdiction."

It is in the background of the understanding of the technical words/terms used in Rule 11, contained in Section D, of Chapter VIII of the "Rules of the Court 1952" (based on the conclusions recorded hereinabove) that we will endeavour to deal with the submissions advanced on behalf of thelearned counsel representing the rival parties.

The first contention advanced by the learned counsel for the appellant (also noticed in paragraph 9 hereinabove) is that a writ petition filed in this Court under Article 226 of the Constitution of India cannot be termed either as a "civil writ petition" or a "criminal writ petition". The description of a writ petition as "civil" or "criminal" in this Court, according to the learned counsel for the appellant, is only for the convenience of the registry of this Court. The description of writ petitions, according to the aforesaid format, it is submitted, is to enable the registry of this Court to list them before appropriate Benches, in term of the roster prepared by the Chief Justice. Learned counsel for the appellants, in order to buttress his instant contention emphatically invited the attention of this Court to Article 226 of the Constitution of India, which is being extracted here under:

"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 exercises 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, prohibition, quo warrant 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

(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 said next day, stands 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."

Based on the terminology used in the aforesaid provision, it is the contention of the learned counsel for the appellants, that the first limitation expressed in Article 226 of the Constitution of India, is in respect of the territorial jurisdiction of the said power. According to learned counsel, the power conferred on the High Court, under the aforesaid provision to issue directions, orders or writs extends to the territorial jurisdiction vested in the particular High Court. The second limitation is in respect of the cause of action, inasmuch as, the High Court can issue directions, orders or writs only in respect of a subjectmatter, wherein the whole or a part of the cause of action, arises within the territorial jurisdiction of the High Court. The third limitation (if it can be considered as a limitation at all), according to learned counsel, is that the directions, orders or writs can be issued only for the enforcement of fundamental rights and for any other purpose. Besides the aforesaid, it is submitted that there is no limitation restraining the High Court from issuing any direction, order or writ. According to learned counsel, the terms "directions''", "orders" or "writs" which a High Court has the power to issue, in exercise of the jurisdiction vested in it under Article 226, are not subject to any further classificationi.e., "civil" or "criminal". Therefore, according to learned counsel, by classifying writ petitions as "civil writ petitions" or "criminal writ petitions", one can really be blamed of committing blasphemy with the provisions of the Constitution of India. By such classification, according to learned counsel, one would be reading into the Constitution of India, what was never intended to be a part of it. It is contended, that it is unreasonable to introduce classifications/restrictions into the provisions of Constitution of India, which were never intended to be.

When the first contention was advanced by the learned counsel for the appellant, it seemed to send ripples in the air. It was as if a politicolegal statement was being made, based the sentiments expressed by the framers of the Constitution of India, But then, neither any reference was made to the debates of the Constituent Assembly, nor any reference made to any judicial precedent. During the course of our research, we arrived at the conclusion that the sentiments expressed by the learned counsel for the appellants, while advancing the first contention, do not emerge from the debates of the Constituent Assembly. The instant submission, therefore, seems to be a submission advanced on first principle, as a matter of a personal hypothesis of the learned counsel for the appellants. Unfortunately, by now, there has been sufficient judicial deliberation, at the level of the Supreme Court of India which can render a clear answer to the issue canvassed by the learned counsel for the appellants. In this behalf, in the first instance, reference may be made to the decision rendered in Pushkar Nath Nehru and others v. Administrator, Municipality, (1987) 2 SCC 446 : (AIR 1987 SC 1311), wherein the Court held as under:

"The judgment of the single Judge granting a writ of mandamus under Article 32 (2A) was not an order made by the High Court in exercise of the revisional or supervisory jurisdiction. The jurisdiction of the High Court to issue writs, directions, or orders under Article 32(2A) was a new jurisdiction but the judgment delivered by the single Judge was in the exercise of the original civil jurisdiction and therefore appealable under clause 12 of the Letters Patent. Unless the matter relates to criminal jurisdiction, it must be taken that theissuing of writs of certiorari will ordinarily be in exercise of original civil jurisdiction and therefore appealable under Clause 12 of the Letters Patent." (Emphasis is ours)

In the aforesaid pronouncement, the Apex Court while dealing with the exercise of writ jurisdiction, was pleased to conclude, that the High Court while exercising jurisdiction, in relation to issuance of writs (in the nature of mandamus or certiorari) shall be deemed to have exercised "civil jurisdiction" or "criminal jurisdiction" vested in it, depending on the subjectmatter of the controversy.

In another recent decision of the Supreme Court in Shashikant v. C.B.I. (2007) I Supreme Court Cases 630 : (AIR 2007 SC 351), the appellant before the Supreme Court, had made an anonymous complaint to the CBI alleging corrupt practices and financial irregularities on the part of some officers of the railway department. After holding a preliminary enquiry, the investigating officer expressed the view, that it was not necessary to register a first information report, on the subjectmatter sought to be canvassed through the complaint. The investigating officer, as an alternative recommended, that departmental proceedings should be conducted against the concerned officers. Thereupon departmental action was initiated against the concerned persons, which led to the officers (named in the complaint) being punished departmentally. Dissatisfied with the procedure adopted by the authorities (as also, on account of his own transfer in the mean time a challenge to which had failed before the Central Administrative Tribunal) the appellant approached the High Court by filing a writ petition with the prayer that the CBI should be directed to reopen the preliminary enquiry, and to submit a detailed report in the matter, to a competent court. In the course of the determination of the aforesaid controversy, the Supreme Court in Shashikant''s case (supra), defined the jurisdiction invoked by the appellant before the High Court, as its "extraordinary criminal jurisdiction".

From the cumulative assessment of the pronouncement of the Apex Court in Pushkar Nath Nehru''s case (supra) and Shashikant''s case (supra), it is possible to affirmatively hold that writ jurisdiction exercised by a HighCourt under Article 226 of the Constitution of India, can validly and justifiably be classified as falling under the category of "civil jurisdiction" or "criminal jurisdiction" depending upon the subjectmatter of the controversy. Thus viewed, we find no merit in the first contention advanced by the learned counsel for the appellants, that a High Court while exercising "writ jurisdiction" cannot be deemed to have exercised "civil jurisdiction" or "criminal jurisdiction" vested in it.

The second contention advanced by the learned counsel for the appellants is, that the impugned order passed by the learned single Judge dated 18.11.2009 does not stand excluded from the purview of "Special Appeal" on account of the fact, that the said order cannot be deemed to have been passed by this court in exercise of "criminal jurisdiction" vested in it (this submission has also been noticed as the second submission, in paragraph 9 hereinabove). Insofar as the instant contention at the hands of the learned counsel for the appellant is concerned, it is based on Rules 10 & 11, contained in Section D, of Chapter VIII, of the "Rules of the Court, 1952." It is asserted by the learned counsel for the appellants that the aforesaid two Rules are only applicable, where a person is brought to trial before this Court in accordance with law. In this behalf, it is the emphatic contention of the learned counsel for the appellants, that both the aforesaid Rules 10 & 11 contain the following words ". . . persons brought before it...", and as such, the exercise of criminal jurisdiction under the aforesaid Rules, would only be relatable to the exercise of such jurisdiction, when a person is brought before the High Court for trial, and not in respect of any other matter. Since, while passing the impugned order dated 18.11.2009 no person had been brought for trial before the learned Single Judge, according to the learned counsel for the appellants, the learned single Judge could not be deemed to have exercised the criminal jurisdiction either under Rule 10 or 11 contained under Section D of Chapter VIII of the "Rules of the Court, 1952", and as such, the impugned order cannot be deemed to have been passed by this Court in exercise of its criminal jurisdiction.

We have considered the second submission advanced by the learned counsel for the appellant, which is based on Rules 10 & 11 falling under Section D of Chapter VIII of the "Rules of Court, 1952". Insofar as the exercise of jurisdiction, by this court, while passing the impugned order dated 18.11.2009, disposing Criminal Writ Petition No.898 of 2009 is concerned, we have already concluded hereinabove (see paragraphs 11 and 12) that there is no ambiguity, and there is even no dispute at the hands of the respondents, that the impugned order dated 18.11.2009 had not been passed by the learned single Judge in exercise of jurisdiction vested in this court, under Rule 10, contained in Section D, of Chapter VIII, of the "Rules of the Court, 1952." Therefore, the only question to be determined is whether the impugned order dated 18.11.2009 can be stated to have been passed by the learned single Judge in exercise of the jurisdiction vested in him under Rule 11 of Section D contained in Chapter VIII of the Rules of Court, 1952.

Insofar as the submission based on Rule 11 referred to hereinabove is concerned, we shall carry on the exercise commenced from paragraph 13 above. According to the learned counsel for the appellant, Rule 11, contained in Section D, of Chapter VIII, of the "Rules of the Court, 1952" applies to one, and only one situation i.e., wherein the High Court discharges the responsibility to try a person "... brought before it. . ." It is therefore the submission of the learned counsel for the appellants, that since while disposing of Criminal Writ Petition No.898 of 2009, no person was ". . . brought before . . ." the learned single Judge for trial, this court could not be deemed to have disposed of the aforesaid petition while exercising power vested hi it under Rule 11, contained in Section D, of Chapter VIII, of the "Rules of the Court, 1952". The aforesaid submission seems to be attractive of first blush, but is not acceptable on a closer examination of the Rule. If the intention of the rule making authority had been, as has been suggested by the learned counsel for the appellants, the purpose would have been served by the words following the words ". . . and shall have authority . . .", used in the aforesaid rule. In other words, if the contention advanced by the learned counsel for the appellants is to be accepted, the words used in Rule 11, preceding the words ". . . and shall have authority . . ." would be rendered nugatory or meaningless. But then, every word used in a provision has to be given effect to. The words "... and shall have authority . . ." themselves depict something in addition to the situation contemplated by the words preceding the same. We are of the considered view that Rule 11, deals with two separate and distinct situations. The first situation is governed by the words preceding the words "... and shall have authority . . .", whereas the second situation is regulated by the words following the said words. In the interpretation of Rule 11 aforesaid we shall, therefore, have to assign the words " The Court shall have extraordinary original criminal jurisdiction over all persons residing in places within the jurisdiction of any Court subject to superintendence . . .", appropriate meaning contemplated by the rule framing authority. In our view the first situation contemplated by the rule based on the words preceding the words "... and shall have the authority . . ." vested in the High Court, in the exercise of its "extraordinary original criminal jurisdiction", the authority inter alia to issue directions, orders or writs under Article 226 of the Constitution of India, in respect of all persons residing in places within its jurisdiction (and subject to its superintendence). Therefore, under the first situation referred to above, the rule under reference, postulates the exercise of "extraordinary jurisdiction" vested in this court in respect of situations in addition to the situation when a person is ".... brought before ...." this court to face trial. The exercise of writ jurisdiction, which has trappings of "criminal jurisdiction" would fully satisfy all the norms of the rule. Such a writ petition would satisfy the defining words "extraordinary original criminal jurisdiction" used in Rule 11 under Section D, of Chapter VIII of the "Rules of the Court, 1952". Additionally, the High Court can pass orders in respect of persons brought before it, on a charge preferred by any Magistrate or other Officer specially empowered to do so. As already noticed hereinabove the Code of Criminal Procedure authorizes the High Court to withdraw to itself, a pending trial before a court of original criminal jurisdiction. Whensuch a case is withdrawn from a court, so as to be originally tried by the High Court, it essentially exercises extraordinary original criminal jurisdiction (reference in this behalf may be made to Section 374 of the Code ofCriminal Procedure). The words ".....to tryat its discretion any such person brought before it on charge preferred by any Magistrate or other officer specially empowered by the Government in that behalf following the words ".... and shall have authority...." deal with the situation to which the appellants wish to confine the scope of Rule 11 under Section D, of Chapter VIII of the Rules of Court, 1952. The illustration referred to (immediately hereinabove) is in respect of the second situation contemplated by the words following the words ".... and shall have authority ...". The order, which has been impugned before this Court, is obviously not an order falling in the said latter (second) category. The impugned order dated 18.11.2009, passed by the learned single Judge, while disposing Criminal Writ Petition No. 898 of 2009, in our considered view, falls in first situation referred to above. While referring to Rule 11 contained in Section D of Chapter VIII of the "Rules of the Court, 1952", we have hereinabove recorded the meaning and definition of the terms "original" (paragraphs 14 to 17 above), "criminal jurisdiction" (paragraph 16 above) and "extraordinary jurisdiction" (paragraphs 14 to 17 above). The impugned order dated 18.11.2009, satisfies all the aforesaid parameters which are the essential components of Rule 11, contained in Section D of Chapter VIII of the "Rules of the Court, 1952". Therefore, we have no hesitation in concluding that the impugned order dated 18.11.2009 was passed by the learned single Judge, in exercise of his "extraordinary original criminal jurisdiction" under the first situation contemplated under Rule 11 contained in Section D, of Chapter VIII of the "Rules of the Court, 1952". As such, we have no hesitation in holding that the impugned order must be deemed to be excluded from the purview of "Special Appeals", as Rule 5 aforesaid, expressly mandates that a "Special Appeal" shall not lie against an order passed in exercise of "criminal jurisdiction".

The third contention advanced at the hands of the appellants, through Shri ArvindVashisth Advocate, was based on a collective reading of some of the provisions of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.). Learned counsel for the appellant, in the first instance relied upon Section 6 of the Cr.P.C. So as to invite our attention to the various categories of criminal courts authorized to administer matters pertaining to "criminal jurisdiction". Learned counsel referred to Section 6 of the Cr.P.C. Section 6 aforesaid is being extracted hereunder:

"6. Classes of Criminal Courts: Besides the High Courts and the Courts constituted under any law, other than this Code, there shall be, in every State, the following classes of Criminal Courts, namely:

(i) Courts of Session;

(ii) Judicial Magistrates of the first class and, in any metropolitan area, Metropolitan Magistrate;

(iii) Judicial Magistrates of the second class; and

(iv) Executive Magistrates."

Learned counsel for the appellant then invited our attention to Section 26 of the Cr.P.C., so as to depict the distribution of the jurisdiction vested in different level of courts, for the adjudication of criminal cases. Section 26 aforementioned is also being reproduced hereunden

"26. Courts by which offences are triable:Subject to the other provisions of this Code:

(a) any offence under the Indian Penal Code (45 of 1860) may be tried by:

(i) the High Court, or (ii) the Court of Session, or (iii) any other Court by which such offence is shown in the First Schedule to be triable;

(b) any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court and when no Court is so mentioned, may be tried by

(i) the High Court, or

(ii) any other Court by which such offence is shown in the First Schedule to be triable."

Based on a collective reading of Sections 6 and 26 of the CrPC, it is the contention of learned counsel, that the "First Schedule" appended to the Cr.P.C, is a complete code for determining the jurisdiction, for the trialof various categories of "criminal cases" (amongst the courts referred to in Sections 6 and 26 of the Cr.P.C.) Insofar as the imposition of sentences, which can be inflected by the courts vested with the authority to decide criminal cases is concerned, learned counsel invited our attention to Section 28 of the CrPC. The aforesaid provision is also being extracted hereunder:

"28. Sentences which High Courts and Sessions Judges may pass: (1) A High Court may pass any sentence authorised by law.

(2) A Sessions Judge or Additional Sessions Judge may pass any sentence authorised by law; but any sentence of death passed by any such Judge shall be subject to confirmation by the High Court.

(3) An Assistant Sessions Judge may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding ten years."

In addition to the aforesaid provisions, according to learned counsel, the High Court is also vested with criminal jurisdiction under certain provisions of the Cr.P.C. Reference in this behalf was made by learned counsel, to Sections 96, 374, 407 and 474 of the Cr.P.C. All the aforesaid provisions are also being extracted hereunden

"96. Application to High Court to set aside declaration of forfeiture.

(1) Any person having any interest in any newspaper, book or other document, in respect of which a declaration of forfeiture has been made under section 95, may, within two months from the date of publication in the Official Gazette of such declaration, apply to the High Court to set aside such declaration on the ground that the issue of the newspaper, or the book or other document, in respect of which the declaration was made, did not contain any such matter as is referred to in subsection (1) of section 95.

(2) Every such application shall, where the High Court consists of three or more Judges, be heard and determined by a Special Bench of the High Court composed of three Judges and where the High Court consists of less than three Judges, such Special Bench shall be composed of all the Judges of that High Court.

(3) On the hearing of any such application with reference to any newspaper, any copy of such newspaper may be given in evidence in aid of the proof of the nature or tendency of the words, signs or visible representations contained in such newspaper, in respect of which the declaration of forfeiture was made.

(4) The High Court shall, if it is not satisfied that the issue of the newspaper, or the book or other document, in respect of which the application has been made, contained any such matter as is referred to in subsection (1) of section 95, set aside the declaration of forfeiture.

(5) Where there is a difference of opinion among the Judges forming the Special Bench, the decision shall be in accordance with the opinion of the majority of those Judges.

Appeals from convictions.

(1) Any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme Court.

(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven years [has been passed against him or against any other person convicted at the same trial], may appeal to the High Court.

(3) Save as otherwise provided in subsection (2), any person:

(a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first class or of the second class, or

(b) sentenced under section 325, or

(c) in respect of whom an order has been made or a sentence has been passed under section 360 by any Magistrate, may appeal to the Court of Session.

Power of High Court to transfer cases and appeals. (1) Whenever it is made to appear to the High Court:

(a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or

(b) that some question of law of unusual difficulty is likely to arise; or

(c) that an order under this section is required by any provision of this Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice,it may order:

(1) that any offence be inquired into or tried by any Court not qualified under sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence;

(ii) that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction;

(iii) that any particular case be committed for trial to a Court of Session; or

(iv) that any particular case or appeal be transferred to and tried before itself.

(2) The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative:

Provided that no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him.

(3) Every application for an order under subsection (1) shall be made by motion, which shall, except when the applicant is the AdvocateGeneral of the State, be supported by affidavit or affirmation.

(4) When such application is made by an accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Court may award under subsection (7).

(5) Every accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with a copy of the grounds on which it is made; and no order shall be made on the merits of the application unless at least twentyfour hours have elapsed between the giving of such notice and the hearing of the application.

(6) Where the application is for the transfer of a case or appeal from any subordinate Court, the High Court may, if it is satisfiedthat it is necessary so to do in the interests of justice, order that, pending the disposal of the application, the proceedings in the subordinate Court shall be stayed, on such terms as the High Court may think fit to impose:

Provided that such stay shall not affect the subordinate Court''s power of remand under section 309.

(7) Where an application for an order under subsection (1) is dismissed, the High Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider proper in the circumstances of the case.

(8) When the High Court orders under subsection (1) that a case be transferred from any Court for trial before itself, it shall observe in such trial the same procedure which that Court would have observed if the case had not been so transferred.

(9) Nothing in this section shall be deemed to affect any order of Government under section 197.

Trials before High Court. When an offence is tried by the High Court otherwise than under section 407, it shall, in the trial of the offence, observe the same procedure as a Court of Sessions would observe, if it were trying the case."

According to learned counsel, any proceeding rendered by the High Court in furtherance of the power vested in it, under the provisions extracted hereinabove, can only be described as a proceeding conducted in furtherance of "criminal jurisdiction" vested in the High Court. No other proceeding, according to the learned counsel for the appellant, fulfils the ingredients of the term "criminal jurisdiction". Based on the aforesaid, it is the contention of the learned counsel for the appellant, that the impugned order passed by the learned single Judge, on 18.11.2009, disposing of Criminal Writ Petition No.898 of 2009, cannot be deemed to have been passed in furtherance of the power vested in the High Court under the Cr.P.C, so as tobe treated, as an exercise of "criminal jurisdiction". As such, it is sought to be contended, that the impugned order cannot be deemed to be an order passedby the High Court in furtherance of the "criminal jurisdiction" vested in it. Stated differently, it is the submission of the learned counsel for the appellant, that the bar contained in Rule 5 under Section C, of Chapter VIII of the "Rules of Court, 1952" ousting from the remedy of "Special Appeal" an order passed in exercise of "criminal jurisdiction", will not be applicable to the controversy in hand.

We have considered the third contention advanced at the hands of the learned counsel for the appellant. While we are in consonance with the view expressed by the learned counsel for the appellant, that the jurisdiction exercised by a court, including the High Court, under the various provisions of the Cr.P.C. referred to hereinabove, would must definitely, fall within the arena of "criminal jurisdiction". It is, however, not possible for us to accept that the provisions of the Cr.P.C. exhaustively define the parameters of "criminal jurisdiction." The decision of the Apex Court in A.R. Antuley v. Ramdas Sriniwas Nayak (1984) 2 SCC 500 : (AIR 1984 SC 718) (Criminal Appeal No.247 of 1983, decided on 16.02.1984) leads to the clear conclusion that a special legislation which constitutes a code in itself can also be treated as falling within the scope and ambit of the term "criminal jurisdiction" (see para 16 above). Additionally, while dealing with the first contention advanced by the learned counsel for the appellant, we have already arrived at the conclusion, that the exercise of "writ jurisdiction" may in certain cases be justifiably classified as "civil jurisdiction" or "criminal jurisdiction" exercised at the hands of the High Court. Insofar as the law declared by the Apex Court in Shashikant''s case (referred to in paragraph 21 above), it has been concluded that in a given case, even while disposing a writ petition, the High Court may be treated as having adjudicated upon a controversy, while exercising its "extraordinary criminal jurisdiction." In the aforesaid view of the matter, it is not possible for us to accept the third contention advanced at the hands of the learned counsel, that the impugned order having not been passed by this court, under any of the provisions of the Cr.P.C., can not be deemed to have been passed by this court, in exercise of the "criminal jurisdiction" vested in it. In fact during the course of drawing our conclusion, on the second submission, advanced by the learned counsel for the appellants, we have already concluded that the order dated 18.11.2009 passed by the learned single Judge disposing of Criminal Writ Petition No.898 of 2009, was in exercise of "criminal jurisdiction" vested in him.

We shall now deal with the fourth contention advanced before us. Shri L.P. Naithani, the then Advocate General, Uttarakhand, who rendered assistance to us during the course of hearing, brought to our attention a number of judgments rendered by the Apex Court, pointedly on the issue of maintainability of "Special Appeals", wherein the Supreme Court repeatedly emphasized, that the nomenclature of the provisions under which a grievance had been raised by a party before a Court, should not be treated as decisive in the determination of the issue, whether or not a "Special Appeal" was maintainable. According to Shri L.P. Naithani, the substance of the controversy should be taken as the material determinative factor, so as to arrive at the conclusion, whether or not a "Special Appeal" was maintainable, as against the given order passed by the High Court. In order to buttress his aforesaid contention, he invited our attention, to the decision rendered in Umaji Keshao Meshram and others v. Radhikabai widow of Anandrao Banapurkar and another, 1986 (Supp) SCC 401 : (AIR 1986 SC 1272), wherein the Court expressed the legal position as under:

"107. Petitions are at times filed both under Articles 226 and 227 of the Constitution. The case of Hari Vishnu Kamath v. Ahmad Ishaque (AIR 1955 SC 233) before this Court was of such a type. Rule 18 provides that where such petitions are filed against orders of the tribunals or authorities specified in Rule 18 of Chapter XVII of the Appellate Side Rules or against decrees or orders of courts specified in that rule, they shall be heard and finally disposed of by a single Judge. The question is whether an appeal would lie from the decision of the single Judge in such a case. In our opinion, where the Facts justify a party in filing an application either under Article 226 or 227 of the Constitution, and the party chooses to file his application under both these Articles, in fairness and justice to such party and in order not to deprive him of thevaluable right of appeal the Court ought to treat the application as being made under Article 226. and if in deciding the matter, in the final order the Court gives ancillary directions which may pertain to Article 227, this ought not to be held to deprive a party of the right of appeal under Clause 15 of the Letters Patent where the substantial part of the order sought to be appealed against is under Article 226." (Emphasis is ours)

Reference was then made to the decision in Ratnagiri District Central Cooperative Bank Ltd. v. Dinkar Kashinath Waive (Civil Appeal No.520 of 1989, decided on 27.01.1989), wherein the Apex Court held as under:

"Even when in the cause title of an application both Article 226 and Article 227 of the Constitution have been mentioned, the learned single Judge is at liberty to decide, according to facts of each particular case, whether the said application ought to be dealt with only under Article 226 of the Constitution. For determining the question of maintainability of an appeal against such a judgment of the single Judge the Division Bench has to find out whether in substance the judgment has been passed by the learned single Judge in exercise of the jurisdiction under Article 226 of the Constitution. In the event in passing his judgment on an application which had mentioned in its cause title both Articles 226 and 227, the single Judge has in fact invoked only his supervisory powers under Article 227, the appeal under clause 15 would not lie. The clause 15 of the Letters Patent expressly bars appeals against orders of single Judges passed under revisional or supervisory powers. Even when the learned single Judge''s order has been passed under both the Articles, for deciding the maintainability against such an order what would be relevant is the principal or main relief granted by the judgment passed by learned single Judge and not the ancillary directions given by him. The expression ''ancillary'' means, in ''the context, incidental or consequential to the main part of the order.

Thus, the determining factor is the real nature of the principal order passed by the single Judge which is appealed against and neither the mentioning in the cause title of the application of both the Articles nor thegranting of ancillary orders thereupon made by learned single Judge would be relevant. Thus, in each case, the Division Bench may consider the substance of the judgment under appeal to ascertain whether the Single Judge has mainly or principally exercised in the matter his jurisdiction under Article 226 or under Article 227. In the event in his judgment the learned single Judge himself had mentioned the particular Article of the Constitution under which he was passing his judgment, in an appeal under clause 15 against such a judgment it may not be necessary for the Appellate Bench to elaborately examine the question of its maintainability. When without mentioning the particular Article the learned single Judge decided on merits the application, in order to decide the question of maintainability of an appeal, against such a judgment, the Division Bench might examine the relief granted by the learned Single Judge. When more than one relief are granted by the learned single Judge, for maintainability of an appeal, the determination would be the main and not the ancillary relief. When a combined application under Articles 226 and 227 of the Constitution is summarily dismissed without reasons, the appeal court may consider whether the facts alleged warranted filing of the application under Article 226 or under Article 227 of the Constitution".

On the same aspect of the matter, recently in Ramesh Chandra Sankla and others v. Vikram Cement and others, (2008) 14 SCC 58 : (AIR 2009 SC 713) while referring to the decisions rendered earlier in Hari Vishnu Kamath''s case : (AIR 1955 SC 233) and Umaji Keshao Meshram''s case : (AIR 1986 SC 1272) (supra) the Supreme Court reiterated the legal position in the following words:

"47. In our judgment, the learned counsel for the appellant is right in submitting that nomenclature of the proceeding or reference to a particular Article of the Constitution is not final or conclusive. He is also right in submitting that an observation by a single Judge as to how he had dealt with the matter is also no decisive. If it were so, a petition strictly falling under Article 226 simpliciter can be disposed of by a single Judge observing that he is exercising power of superintendence underArticle 227 of the Constitution. Can such statement by a Single Judge take away from the party aggrieved a right of appeal against the judgment if otherwise the petition is under Article 226 of the Constitution and subject to an intracourt/letters patent appeal ? The reply unquestionably is in the negative."

Based on the aforesaid judgments of the Supreme Court, it was the submission of Shri L.P. Naithani (which was also adopted by the learned counsel for the respondents), that the subjectmatter of the controversy dealt with by a Court should be the determining factor, in arriving at the conclusion, about the nature of the jurisdiction exercised by a court.

Insofar as the present controversy is concerned, according to learned counsel, the same must be deemed to the falling within the parameters of "criminal jurisdiction." For purposes of defining the parameters of "criminal jurisdiction", learned counsel for the appellant invited our attention to some of the provisions of the Code of Criminal Procedure (hereinafter referred to as the Cr.P.C.) so as to contend that the Cr.P.C. not only defines the courts vested with the authority to adjudicate cases pertaining to criminal offences, and their respective jurisdictions, but also delineates various aspect of "criminal jurisprudence" including arrest of persons connected with criminal offences, power and authority of investigation, conditions requisite for initiation of proceedings, framing of charges, the process of holding of trials and rendering of judgment. The Cr.P.C., according to learned counsel, also provides for remedies of appeal, reference and revision in certain cases. It was also contended, that the "process of investigation" though a part of "criminal adjudication", is the exclusive domain of "executive functions" through police personnel. It is further submitted that the process of investigation has nothing to do with the judicial process entrusted to criminal courts under the Cr.P.C. Insofar as the instant aspect of the matter is concerned, learned counsel invited our attention to the judgment rendered in Union of India v. Prakash P. Hinduja and another, 2003 SCC (Criminal) 1314 : (AIR 2003 SC 2612) and pointed out, the following observations recorded therein:

"13. The provisions referred to above occurring in Chapter XII of the Code show that detailed and elaborate provisions have been made for securing that an investigation takes place regarding an offence of which information has been given and the same is done in accordance with the provisions of the Code. The manner and the method of conducting the investigation are left entirely to the officerincharge of the police station or a subordinate officer deputed by him. A Magistrate has no power to interfere with the same. The formation of the opinion whether there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the case to a Magistrate or not as contemplated by Sections 169 and 170 is to be that of the officerincharge of the police station and a Magistrate has absolutely no role to play at this stage. Similarly, after completion of the investigation while making a report to the Magistrate under Section 173, the requisite details have to be submitted by the officer in charge of the police station without any kind of interference or direction of a Magistrate and this will include a report regarding the fact whether any offence appears to have been committed and if so, by whom, as provided by clause (d) of subsection (2)(i) of this section. These provisions will also be applicable in cases under the Prevention of Corruption Act, 1947 by virtue of Section 7A thereof and the Prevention of Corruption Act, 1988 by virtue of Section 22 thereof.

The Magistrate is no doubt not bound to accept the final report (sometimes called as closer report) submitted by the police and if he feels that the evidence and material collected during investigation justify prosecution of the accused, he may not accept the final report and take congnizance of the offence and summon the accused but this does not mean that he would be interfering with the investigation as such. He would be doing so in exercise of powers conferred by Section 190 Cr.P.C. The statutory provisions are, therefore, absolutely clear that the court cannot interfere with the investigation.

The question whether the High Court can exercise its inherent powers under Section 561 A of the Code of Criminal Procedure, 1898, which was similar to Section 482 of the 1973 Code, was considered by the Privy Council in Emperor v. Khwaja Nazir Ahmad (AIR J945 PC 18 : 46 Cri LJ 413). It will be useful to reproduce the relevant part of the observations made by their Lordships as this decision has been approved and has been referred to in several decisions of this Court: (AIR p. 22)

"In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged congnizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the court to intervene in an appropriate case when moved under Section 491 of the Criminal Procedure code, to give directions in the nature of habeas corpus. In such a case as the present, however, the court''s functions begin when a charge is preferred before it and not until then."

In H.N. Rishbud v. State of Delhi (AIR 1955 SC 196) the Court was called upon to consider the effect of investigation having been done by a police officer below the rank of a Deputy Superintendent of Police contrary to the mandate of Section 5 (4) of the Prevention of Corruption Act, 1947. While examining the scheme of Chapter XIV of the Code of Criminal Procedure, 1908 (same as Chapter XII of the 1973 Code), it was held that the investigation primarily consists of the ascertainment of the facts and circumstances of the case and by definition it includes "all the proceedings under the Code for the collection of evidence conducted by a police officer". It was further observed that the final step in the investigation viz. the formation of the opinion as to whether or not there is a case to place the accused on trial is to be that of the officer in charge of the police station. In State of W.B. v. S.N. Basak (AIR 1963 SC 447) this Court approved the view taken by the Privy Council in Nazir Ahmad (AIR 1945 PC 18) and held as under in para 3 of the report: (AIR p. 448)

"The powers of investigation into cognizable offences are contained in Chapter XIV of the Code of Criminal Procedure. Section 154 which is in that Chapter deals with information in cognizable offences and Section 156 with investigation into such offences and under these sections the police has the statutory right to investigate into the circumstances of any alleged cognizable offence without authority from a Magistrate and this statutory power of the police to investigate cannot be interfered with by the exercise of power under Section 439 or under the inherent power of the court under Section 561A of the Criminal Procedure Code."

This question was again considered in Abhinandan Jha v. Dinesh Mishra (AIR 1968 SC 117) and after examining the scheme of the Act and the decision of the Privy Council in Nazir Ahmad (AIR 1945 PC 18) and the earlier decision of this Court in H.N. Rishbud (AIR 1955 ,SC 196) and S.N. Basak (AIR 1963 SC 447) it was held as under: (AIR p. 123, para 18)

"[T]he investigation, under the Code, takes in several aspects, and stages, ending ultimately with the formation of an opinion by the police as to whether, on the material covered and collected a case is made out to place the accused before the Magistrate for trial, and the submission of either a chargesheet, or a final report is dependent on the nature of the opinion, so formed. The formation of the said opinion, by the police,... is the final step in the investigation, and that final step is to be taken only by the police and by no other authority."

VineetNarain (1998) 1 SCC 226: (AIR 1998 SC 889) has also relied upon this decision.

In State of Bihar v. J.A.C. Saldanha (1980) 1 SCC 554 : (AIR 1980 SC 326) the same principle was reiterated and was succinctly stated in the following words in para 25 of the Report: (SCC p. 572) : (at pp 337338 of AIR para 25).

"25. There is a clearcut and welldemarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the field exclusively reserved for the executive through the Police Department the superintendence over which vests in the State Government. The executive which is charged with a duty to keep vigilance over law and order situation is obliged to prevent crime and if an offence is alleged to have been committed it is its bounden duty to investigate into the offence and bring the offender to book. Once it investigates and finds an offence having been committed it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the investigating officer submits report to the court requesting the court to take cognizance of the offence under Section 190 of the Code its duty comes to an end. On a cognizance of the offence being taken by the court the police function of investigation comes to an end subject to the provision contained in Section 173(8), there commences the adjudicatory function of the judiciary to determine whether an offence has been committed and if so, whether by the person or persons charged with the crime by the police in its report to the court, and to award adequate punishment according to law for the offence proved to the satisfaction of the court. There is thus a welldefined and welldemarcated function in the field of crime detection and its subsequent adjudication between the police and the Magistrate. This had been recognized way back in Emperor v. Khwaja Nazir Ahmad (AIR 1945 PC 18) where the Privy Council observed as under:

(Omitted as already quoted in para 15) In para 26 it was observed that the power of the police to investigate into a cognizable offence is ordinarily not to be interfered with by the judiciary.

Thus, the legal position is absolutely clear and also settled by judicial authorities that the court would not interfere with the investigation or during the course of investigation which would mean from the time of the lodging of the first information report till the submission of the report by the officer in charge of the police station in court under Section 173(2) Cr.P.C, this field being exclusively reserved for the investigating agency."

According to learned counsel, the functions of Courts vested with "criminal jurisdiction" and the police are complementary and not overlapping. It is submitted that the provisions of the Cr.P.C. require, that each of the two aspects of determination (pertaining to investigation and adjudication), must be exercised separately within the parameters defined by the Cr.P.C. through the respective agencies authorized to deal with the same, subject to the right of a Court to intervene in appropriate case. Referring to the facts which have been noticed by us in the opening part of this order, it is the vehement contention of Shri L.P. Naithani, that the petitioner in Writ Petition No.898 of 2009 had approached this Court seeking intervention in the action of the authorities having registered First Information Report through Crime Case No.97 of 2009 against him. In his prayers, the petitioner had sought a writ in the nature of certiorari, for quashing the First Information Report dated 15.09.2009. Accordingly it is submitted, that if the subjectmatter dealt with by the learned Single Judge is taken into consideration, there would be no ambiguity in arriving at the conclusion, that the order passed by this Court, quashing the First Information Report dated 15.09.2009, lodged by Upendra Singh Maniyari (the appellanl herein) at Police Station Basant Vihar in District Dehradun, was nothing but an ordei passed in exercise of "criminal jurisdiction" 32. Based on the judgments rendered b; the Apex Court in Umaji Keshao Meshram'' case : (AIR 1986 SC 1272) (supra), Ratnagii District Central Cooperative Bank Ltd''s ca& (supra) and Ramesh Chandra Sankla''s case (AIR 2009 SC 713) (supra), and the spher of activity describable as "criminal jurisdic tion", enunciating from the provisions of th Cr.P.C., specially in the background of th judgment rendered by the Supreme Court i Prakash P. Hinduja''s case (AIR 2003 SC 261 (supra), the aspect of the matter adjudicate upon by the learned single Judge, through impugned order dated 18.11.2009, undoub edly falls in the realm of "criminal jurisdi tion". In our conclusion, besides examinii the submission put forth by Shri L.P. Naithai we have taken into consideration the subjec matter of the controversy delineated at t1 beginning of the instant order for holding tl the subjectmatter of controversy adjudicateby the learned Single Judge (while disposing of Criminal Writ Petition No.898 of 2009, vide order dated 18.11.2009), must most definitely be treated as an exercise of "criminal jurisdiction" vested in this court. And as such, we have no hesitation, while dealing with the fourth contention advanced before us to hold that since a "Special Appeal" is barred against an order passed by this Court in exercise of "criminal jurisdiction"; the instant appeal cannot be held to be maintainable, against the impugned order dated 18.11.2009, which in our considered view, was passed by this court in exercise of "criminal jurisdiction" vested in it.

One of the submissions advanced by Shri U.K. Uniyal, Senior Advocate was based on the judgment rendered by a Division Bench of the Calcutta High Court in Belait Sheikh and others v. State of West Bengal, AIR 1952, Calcutta, 753. We shall refer to it as the fifth contention advanced before us. Learned counsel, with his usual modesty, submitted that he desired to adopt the observations recorded by the Calcutta High Court in paragraph 4 of the aforesaid judgment, as a part of his submission, so as to canvass, that the order passed by the learned single Judge dated 18.11.2009, which is subjectmatter of challenge in the instant "Special Appeal", should not be taken to have been passed by this court, in exercise of "extraordinary original criminal jurisdiction" vested in it. It is, therefore, that we shall assume that the instant submission advanced by the learned counsel for the appellant is confined to the determination rendered by Calcutta High Court in paragraph 4 of the said judgment.

We have considered the fifth submission advanced by the learned counsel for the appellant, as has been noticed in the foregoing paragraph. Before dwelling into the contention advanced, it shall be necessary, to first and foremost, notice the background of the controversy, which was subjectmatter of consideration, at the hands of the Calcutta High Court, in the aforesaid case. In this behalf, it would be pertinent to mention that the entire village of Brahmanigram was earlier included in Rampurhat Union under the Village SelfGovernment Act. All the same, a portion of the said village was included in the Municipality of Rampurhat, by the Government of West Bengal. Aggrieved by the latter act of the Government, residents of Village Brahmanigram filed a writ petition under Article 226 of the Constitution of India, to assail the very constitution of the Rampurhat Municipality. Besides assailing the aforesaid action of the Government on the ground of mala fides, it was the case of the petitioners that the action was in contravention of the provisions of Village SelfGovernment Act. In the aforesaid case, the petitioners prayed for a writ in the nature of certiorari be issued, quashing the notification issued by the Government, whereby the aforesaid Rampurhat Municipality was constituted. They also prayed for a writ in the nature of mandamus for the exclusion of village Brahmanigram, from the Municipality of Rampurhat. In addition to the aforesaid prayers, certain other consequential reliefs were also sought by the petitioners. The aforesaid writ petition came, to be dismissed by a learned single Judge, whereupon an intracourt appeal was preferred (by the aggrieved petitioners). In the determination rendered by the Division Bench, while adjudicating upon the aforesaid appeal, the High Court in paragraphs 4 and 5 inter alia observed as under:

"[4] The real question for decision before us therefore is: Was the order made by Bose J. an order made in the exercise of original jurisdiction. Article 226 (I) of the Constitution, under which the High Court was asked to exercise its power, which it refused to exercise, is in these words:

"Notwithstanding anything in Art. 32, every High Court shall have power, throughout the territories in relation to which it exercises 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, prohibition, 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."

In exercising this power, is the Court exercising original jurisdiction ? It is quite clear that in exercising the power under Art. 226, the High Court is not exercising the ordinary original civil jurisdiction, that is vested in the Court underCl. 11 of the Letters Patent, or the Extraordinary Original Civil Jurisdiction, as is vested in the Court under C1.13; nor is it exercising the Ordinary Original Criminal Jurisdiction vested by C1.22, or the Extraordinary Original Criminal Jurisdiction vested by C1.24. It is equally clear that it is not exercising, in exercising power under Art. 226 of the Constitution, the appellate jurisdiction vested in the Court under C1.16 or cl,27 of the Letters Patent.

[5] In deciding whether in using the power under Art. 226 of the Constitution, the Court does so, as a Court of Original Jurisdiction, or as a Court of Appellate Jurisdiction, it is therefore necessary to look at the nature of the proceedings which are instituted in asking for the use of the power. In my judgment, the application by which a Court is asked to exercise powers under Art. 226 is essentially of the nature of original action. As between the parties to the application, there has not been decision by any tribunal of the dispute. One of the respondents in such an application is invariably the inferior tribunal, or the public official, against whose order relief is sought. The applicant asks in effect for a decision of a dispute between him and the inferior tribunal or the public official, for the first time. In deciding the dispute, the Court cannot therefore be held to exercise appellate jurisdiction, but must be held to exercise original jurisdiction."

Based on the conclusion drawn by the Calcutta High Court, that the order passed by the learned single Judge, in exercise of writ jurisdiction, under Article 226 of the Constitution of India, could not be taken to be an order passed by the learned single Judge, in exercise of its "ordinary original criminal jurisdiction" (governed by clause 22 of the Letters Patent) or in exercise of "extraordinary original criminal jurisdiction" (governed by clause 24 of the Letters Patent); it is the submission of learned counsel, that herein also, the impugned order having been passed by a learned single Judge in exercise of writ jurisdiction, under Article 226 of the Constitution of India, could not be taken to have been passed by this court in exercise of its "ordinary original criminal jurisdiction" or "extraordinary original criminal jurisdiction."

We have given our thoughtful consideration to the fifth submission advanced "by the learned counsel, as has been noticed in the foregoing paragraphs. Based on the first contention advanced by the learned counsel for the appellants, we have already concluded hereinabove, that the exercise of jurisdiction by a High Court under Article 226 of the Constitution of India can be described as "civil" or "criminal" on the basis of the subjectmatter of the controversy. We have delineated hereinabove, the subjectmatter of the controversy which was considered by the Calcutta High Court in exercise of jurisdiction under Article 226 of the Constitution of India, as also, the prayers made by the petitioners, depicting the reliefs sought. None of the reliefs/prayers made by the petitioners before the learned single Judge of the Calcutta High Court could be treated as falling within the arena of "criminal jurisdiction" (which we have endeavoured to define in paragraphs 16, 31 and 32 hereinabove). Since the factual and legal controversy dealt with by the Calcutta High Court, in Belait Sheikh''s case: (AIR 1952 Cal 753) (supra), had not even the remotest trappings of a criminal case, it is not possible for us to treat the conclusions recorded therein, as a precedent for adjudication of the case in hand. From the discussion recorded in the instant order, we have no hesitation in affirming the conclusion recorded by the High Court in paragraph 5 (extracted above), that the learned single Judge, while disposing of the writ petition under Article 226 of the Constitution of India had exercised "original jurisdiction." Additionally, however, in view of the authoritative pronouncement of the Supreme Court in Pushkar Nath Nehru''s case : (AIR 1987 SC 1311) (supra) (paragraph 20 hereinabove), we have no hesitation in further concluding, that the order passed by the Calcutta High Court in the writ petition preferred by Belait Sheikh and others, seeking a writ in the nature of mandamus/certiorari must be deemed to have been passed in the exercise of "original civil jurisdiction" vested in it. As such, we have no hesitation in affirming that the Calcutta High Court was fully justified in concluding that the jurisdiction exercised by the learned single Judge (while disposing of the Writ Petition filed by Belait Sheikh and others), could not have been as a matter of exercise of "ordinary original criminal jurisdiction" or "extraordinary original criminal jurisdiction." But then, since the controversy in the present case, undoubtedly relates to the arena of "criminal jurisdiction", we have no hesitation to further conclude, that insofar as the present case is concerned, the learned single Judge, while passing the impugned order dated 18.11.2009 did so in exercise of the "extraordinary original criminal jurisdiction" vested in him. We, therefore, find no merit even in the fifth contention advanced by the learned counsel for the appellant.

During the course of hearing, learned counsel invited our attention to the historical march of events, leading to the introduction of, the remedy of an intracourt appeal, in the High Court at Allahabad. The process of procedure prevailing at Allahabad was adopted by the High Court of Uttarakhand on the creation of the successor State of Uttarakhand. This aspect of the matter shall be dealt with as the sixth contention advanced before us. Nonrecording of the historical aspect of the matter, painstakingly brought to our notice, may have amounted to a dereliction of our responsibility. This historical progression of events, has been made a basis of certain fringe submissions, on behalf of learned counsel assisting us in this case. To maintain continuity, we have chosen to first record the entire sequence (limited to its relevance, to the controversy in hand) at one place, so as to be in a position to record our conclusions on the submissions advanced thereafter. From the assistance rendered, we have been able to summarize the historical facts in the following paragraphs.

The Indian High Courts Act was passed by the British Parliament in 1861, whereby Her Majesty was empowered to abolish the Supreme Court and the Sadar Adalats, and to constitute in their place, a High Court of Judicature for each of the three Presidencies. The High Court so constituted would be supreme over all courts in the Presidency towns, and also in the Muffasals. Under the Indian High Courts Act, 1861, Her Majesty was also empowered to create and establish other High Courts in British India. Accordingly, by a Letters Patent issued on 17.03.1866, the High Court of Judicature for the NorthWestern Provinces, was established at Agra. By its establishment, the Sadar Diwani Adalat, andthe Sadar Niyamat Adalat, were abolished. By virtue of the said Letters Patent, the jurisdiction and authority earlier exercised by the abolished courts, was vested with the High Court of Judicature at Agra. In addition to the existing jurisdiction and authority, exercised by the abolished courts, the High Court of Judicature at Agra was also vested with appellate and superintending powers.

The High Court of Judicature at Agra, was not given ordinary civil jurisdiction, and extraordinary civil jurisdiction, except to a very limited extent. The said jurisdictions were vested in the High Court of Judicature at Agra, only for the European British subjects, residing in the NorthWestern Provinces (i.e. the territory over which the High Court of Judicature at Agra had jurisdiction). In exercise of extraordinary original civil jurisdiction, the High Court of Judicature at Agra, could divest from a court under its jurisdiction, a pending civil case, and transfer the same to itself for trial and adjudication. In exercise of its appellate jurisdiction, the High Court of Judicature at Agra, was authorized to hear appeals (just like Sadar Adalats) arising from decisions of courts subject to its (appellate) jurisdiction. The High Court of Judicature at Agra was also authorized to hear appeals in Division Benches from decisions rendered by single Judges, of its own court, sitting on the civil side.

The High Court of Judicature at Agra, in exercise of its original criminal jurisdiction, as also, as a court of appeal, reference and revision, was authorized to punish persons by applying the Indian Penal Code. All criminal cases tried by the High Court of Judicature at Agra, in exercise of its ordinary original criminal jurisdiction, were to be conducted under the criminal procedure and practice (applicable in the High Court of Judicature at Calcutta). All other criminal cases at the High Court of Judicature at Agra, were to be conducted as per the Code of Criminal Procedure, 1861. The High Court of Judicature at Agra was made a court of reference and revision in respect of judgments of its subordinate criminal courts. It was also empowered to direct the transfer of any pending criminal case or appeal from one court to another.

It needs a special mention, that the High Court of Judicature at Agra, was notvested with the jurisdiction or authority to issue writs, under the Letters Patent issued on 17.03.1866.

The Government of India Act, 1915 was passed by the British Parliament in order to consolidate and reenact the existing statutes concerning the Government of India and the High Courts. By the instant legislation the provisions of the High Court Acts of 1861 and 1911 were reenacted. The Government of India Act, 1915 provided for the constitution, jurisdiction and powers of the High Courts established in India. The High Courts, so constituted, were vested with jurisdiction, both original and appellate. The High Courts were declared courts of record. The High Courts were also given the power and authority to make rules for regulating the Court''s practice. The High Courts were also conferred with the power of supervision over all subordinate courts under their respective jurisdictions.

The seat of the High Court for the northwestern provinces was shifted from Agra to Allahabad in 1869. The court established at Allahabad came to be described as the High Court of ludicature at Allahabad in 1890, by a supplementary Letters Patent. By the United Provinces High Court (Amalgamation) Order, 1948, the High Court of Judicature at Allahabad, and the Chief Court at Oudh were amalgamated. The amalgamated court was rechristened as the High Court of Judicature at Allahabad. Under the provisions of the United Provinces High Court (Amalgamation) Order, 1948. On the creation of the State of Uttarakhand, which was carved out of the composite State of Uttarakhand, the High Court of Uttarakhand was established at Nainital. The rules of procedure, which were applicable to the High Court of Allahabad, became applicable to the High Court of Uttarakhand at Nainital. Therefore, the provisions of the Letters Patent issued on 17.03.1866, and therefore, the rules formulated by the High Court at Allahabad assume significance.

In the High Court of Judicature at Agra, the remedy of an intracourt appeal must be deemed to be the creation of the Letters Patent issued on 17.03.1866. Clause 10 of the aforesaid Letters Patent, provided for a right of appeal, from a decision rendered by the High Court, to a Bench of the same High Court.

The aforesaid provision became applicable to the High Court of Judicature at Allahabad, when the seat of the High Court was shifted from Agra to Allahabad. Clause 10 of the Letters Patent dated 17.03.1866 is being extracted hereunder.

"10. And we do further ordain that an appeal shall lie to the said High Court of Judicature at Allahabad from the judgment (not being a judgment passed in the exercise of appellate jurisdiction by a Court subject to the Superintendence of the said High Court and not being an order made in the exercise of revisiooal jurisdiction, and not being a sentence or order passed or made in the exercise of the power of Superintendence under the provisions of Section 107 of the Government of India Act, or in the exercise of Criminal Jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 105 of the Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, made on or after the first day of February one thousand nine hundred and twenty nine in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the Superintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the right of appeal from other judgments of the Judges of the said High Court or of such Division Court shall be to us. Our heirs or successors or Our on Their Privy Council, as hereinafter provided."

Clause 10 of the Letters Patent extracted above, expressly provided for a remedy of appeal from judgments rendered by a single Judge (or by one Judge of a Division Bench) of the same Court. The instant jurisdiction was, however, limited to specified classes of jurisdiction. The intracourt appellate jurisdiction of the High Court, was expressly defined, by a method of inclusion, as also by a method of exclusion. What is relevant to be noticed here is, that to begin with, an intracourt appeal, was expressly barred, againstjudgments rendered by the High Court in exercise of its "criminal jurisdiction". And since, at that juncture, the High Court was not vested with the power and authority to issue writs under the Letters Patent, there was no question of vesting (or divesting) of authority in the High Court, to entertain an intracourt appeal, from an order rendered by the High Court itself in exercise of writ jurisdiction.

Consequent upon the independence of India in 1947, and the enforcement of the Constitution of India in 1950, the rules of procedure of High Courts, came to be determined on the basis of the provisions of the Constitution of India. With the enforcement of the Constitution of India, a vital addition was made in respect of the jurisdiction and power vested in High Courts. As per the mandate of the proviso under Article 225 of the Constitution of India, an amendment was made in respect of the jurisdiction and power vested in High Courts. All High Courts were vested with the authority to exercise original jurisdiction with respect to revenue matters, as also in connection with collection of revenue. The instant aspect of the matter does not have any effect on the controversy in hand, inasmuch as, intracourt appeals from orders passed by the High Courts in exercise of the "criminal jurisdiction" remained unaltered. But the fact that the said jurisdiction was never assumed, would be relevant to deal with one of the submissions canvassed before us during the hearing of this matter.

A significant development came about with the enforcement of the Constitution of India. With the addition of writ jurisdiction in the armoury of the authority vested in High Courts (under Article 226 of the Constitution of India), allHigh Courts commenced to exercise the power to issue directions, orders and writs (including writs in the nature of habeas corpus, mandamus, prohibition, quo warrant and certiorari). Even after the promulgation of the Constitution of India, the position in respect of intracourt appeals remained the same. The Letters Patents continued to govern matters pertaining to the determination of various kinds of jurisdiction vested with the High Courts, except that, an overriding effect was conferred on the provisions of the Constitution of India, as also, any other legislative enactment on the same subject, by a State Legislature.

In exercise of powers conferred on the High Court at Allahabad, under Article 226 of the Constitution of India, rules were framed in 1952. These rules were enforced with effect from 15.09.1952. In the "Rules of the Court, 1952" intracourt appeals were described as "Special Appeals". Provision for "Special Appeals" was made under Rule 5, contained in Section C, of Chapter VIII, of the" Rules of the Court, 1952". Rule 5, as it was originally enacted is being extracted hereunder:

"5. An appeal shall lie to the Court from the judgment (not being a judgment passed in the exercise of appellate jurisdiction) in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the Superintendence of the Court, and not being an order made in the exercise of revisional jurisdiction, and not being an order passed or made in the exercise of its power of Superintendence, or in the exercise of Criminal Jurisdiction of one Judge, and an appeal shall lie to the Court from a judgment of one Judge made in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the Superintendence of the Court, where the Judge who passed the judgment declares that the cases is a fit one for appeal."

Consequent upon the enactment of Rule 5, under Section C, of Chapter VIII, of the "Rules of the Court, 1952", intracourt appeals were maintainable only against a judgment rendered by "one Judge" of the Court. The exigencies, in which an intracourt appeal, would be maintainable was clearly defined. Herein again, an order passed by "one Judge" of the High Court, in exercise of "criminal jurisdiction" was excluded, from the purview of the remedy of "Special Appeal". In other words, an order passed by a Judge of the High Court in exercise of "criminal jurisdiction" was not appealable within the same Court.

The U.P. High Court (Abolition ofLetters Patent Appeals) Act, 1962 came into force on 13.11.1962. Its relevance to the present controversy is limited to Section 3 thereof. Section 3 of the aforesaid enactment is being reproduced hereunder:

"3. (1) No appeal, arising from a suit or proceeding instituted or commenced, whether prior or subsequent to the enforcement of this Act, shall lie to the High Court from a judgment or order of one Judge of the High Court, made in the exercise of appellate jurisdiction, in respect of a decree or order made by a Court, subject to the Superintendence of the High Court, anything to the contrary contained in Clause 10 of the Letters Patent of Her Majesty, dated the 17th March, 1866, read with Clause 17 of the U.P. High Courts'' (Amalgamation) Order, 1948, or in any other law, notwithstanding.

(2) Notwithstanding anything contained in subsection (1) all appeals pending before the High Court on the date immediately preceding the date of enforcement of this Act shall continue to lie and be heard and disposed of as heretobefore, as if this Act had not been brought into force."

Consequent upon the enactment of the aforesaid legislation, Rule 5, contained in Section C, of Chapter VIII, of the "Rules of the Court, 1952" had to be amended. The same was, accordingly, amended through a Notification dated 06.11.1963. The amended Rule 5 is being extracted hereunder:

"5. An appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made by a Court subject to the Superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of Superintendence or in the exercise of Criminal Jurisdiction) of one Judge."

A "perusal of the amended Rule 5, reproduced above, reveals that the earlier position remained unaltered. A "Special Appeal" was still not competent, against an order passed by a Single Judge, in exercise of "criminal jurisdiction."

From time to time the U.P. High Court (Abolition of Letters Patent Appeals) Act,1962 was amended. For the present controversy, the third such amendment which was carried out in 1981 (after the earlier two amendments of 1972 and 1975) deserves a reference. In the statement of objects and reasons recorded in the U.P. High Court (Abolition of Letters Patent Appeals) (Amendment) Act, 1981, it was inter alia noticed, that despite various measures taken earlier, the number of pending cases in the High Court at Allahabad were increasing. Therefore, it was necessary to adopt further measures for providing speedy justice. Accordingly, the State Legislature decided to curtail the intracourt appellate jurisdiction by amending Section 5 of the U.P. High Court (Abolition of Letters Patent Appeals) Act, 1962. The amended Section 5, is being extracted hereunder:

"5. Abolition of Letters Patent Appeals in certain other cases.(1) Notwithstanding anything to the contrary contained in Clause 10 of the Letters Patent of Her Majesty, dated March 17, 1866 read with Clauses 7 and 17 of the U.P. High Courts (Amalgamation) Order, 1948, or in any other law, no appeal arising from an application or proceeding, instituted or commenced whether prior or subsequent to the commencement of the Uttar Pradesh High Court (Abolition of Letters Patent Appeals) (Amendment) Act, 1981, shall lie to the High Court from a judgment or order of one Judge of the High Court, made in the exercise of jurisdiction conferred by Article 226 or 227 of the Constitution, in respect of any judgment, order or award

(a) of a Tribunal, Court of Statutory Arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution, or

(b) of the Government or any officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act.

(2) Notwithstanding anything contained in subsection (1), all appeals of the nature referred to in that subsection pending beforethe High Court immediately before the commencement of the Uttar Pradesh High Court (Abolition of Letters Patent Appeals) (Amendment) Act, 1981, shall be heard and disposed of as if that subsection had not been enacted."

The aforesaid amendment necessitated a further amendment of Rule 5, contained in Section C, of Chapter VIII, of the "Rules of the Court, 1952." Accordingly, Rule 5 came to be amended through a Notification dated 27.07.1983. The amended Rule 5 is being extracted hereunder:

"5. Special Appeal. An appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of appellate jurisdiction) in respect of a decree or order made by a Court subject to the Superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of criminal jurisdiction (or in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award(a) of a Tribunal, Court or Statutory Arbitrator made or purported to be made in the exercise or purported of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitutions or (b) of the Government or any officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act of one Judge."

The aforesaid historical narration pertaining to the introduction of intracourt appeals within the High Court at Allahabad (earlier Agra) reveals, firstly, that the remedy of an intracourt appeal was never available as against a judgment rendered by the High Court in exercise of its "criminal jurisdiction". And secondly, even though under the Constitution of India, it was open to the High Court to extend the scope of intracourt appeals, to the realm of revenue jurisdiction, as also collection of revenue (which remedy was hitherto before not available) the discretion was never exercised by the High Court to extend its jurisdiction, so as to include withinthe purview of orders passed in the field of revenue jurisdiction (see para 44 above) presumably to avoid expansion of jurisdiction pertaining to intracourt appeals. Thirdly, the expressed legislative intent in respect of intracourt appeals from the various enactments made from time to time, reveals efforts for limiting the purview of intracourt appeals rather than expending the same. A fourth aspect of the matter also deserves express notice, namely, Section C of Chapter VIII of the Rules of Court, 1952" has been given the heading/title "Civil Jurisdiction of the Court", undoubtedly the Rules incorporated thereunder, including Rule 5 on the subject of "Special Appeal" could not be deemed to extend to "criminal jurisdiction". Fifthly, it deserves to be noticed that Section D of Chapter VIII of the "Rules of Court, 1952" has been given the heading/title "Criminal Jurisdiction of the Court", but then, no provision for an intracourt appeal has been made under Section D of Chapter VIII, aforesaid. Accordingly, based on the historical march of events, wherefrom we have drawn the aforesaid conclusion, we have to accept the submission.of the respondents that neither the provisions of the Letters Patent issued on 17.03.1866, nor the provisions of the "Rules of Court, 1952" (as amended from time to time), ever extended the remedy of an intracourt appeal, to a judgment/order passed by the High Court in exercise of its "criminal jurisdiction".

Insofar as the appellants are concerned, anotherr submission was advanced by Shri Arvind Vashisth, on the instant aspect of the matter. We shall refer to it as the seventh submission. He read to us clauses 15 to 22 of the Letters Patent issued on 17.03.1866 (which are clubbed under the heading/title, "criminal jurisdiction"), clause 23 of the said Letters Patent (under the heading/title, "criminal law"), and clause 29 of the said Letters Patent (under the heading/title "criminal procedure"). Learned counsel also placed reliance on some judgments of High Courts and the Supreme Court, so as to canvass that the "criminal jurisdiction" conferred on this Court should be confined to the area governed by clauses 15 to 23 and 29 of the Letters Patent issued on 17.03.1866. It is pointed out, that since the impugned ordercannot be deemed to have been passed under any of the above mentioned clauses of the Letters Patent issued on 17.03.1866, the same cannot be considered to have been passed by this court in exercise of "criminal jurisdiction" vested in it.

We have intentionally not extracted the clauses of the Letters Patent relied upon by the learned counsel for the appellants. We have also not referred to the judgments relied upon by him, so as to canvass the proposition noticed in the foregoing paragraph. Our reason for not doing so is, that identically the same proposition, as is being sought to be projected by the learned counsel for the appellants on the basis of clause of the Letters Patent issued on 17.03.1866, was canvassed before us, on the basis of the provisions of the Code of Criminal Procedure. The submission sought to be advanced at the hands of the learned counsel for the appellants on the basis of provisions of the Code of Criminal Procedure expressly was, that "criminal jurisdiction" of this Court should be limited to the jurisdiction vested in this Court, under the provisions of the Code of Criminal Procedure, and that, the exercise of jurisdiction by this Court beyond the provisions of Code of Criminal procedure, should be treated as the exercise of jurisdiction, other than, "criminal jurisdiction" (the aforesaid submission has been dealt in the instant order as the third contention advanced at the hands of the appellants). The seventh submission is identical to the third submission, inasmuch as, it is sought to be canvassed that, the clauses of the Letters Patent referred to hereinabove should be treated as defining the limits of the term "criminal jurisdiction". Anything, according to learned counsel, which does not fall within the aforesaid clauses, cannot be treated as "criminal jurisdiction". For the same reasons (refer to paragraph 29) as were recorded by us, while not accepting the third contention advanced at the hands of the learned counsel for the appellant, we are of the view that the instant submission advanced by the learned counsel for the appellant also deserves to be rejected. At the cost of repetition it may be stated that although it is correct that the exercise of jurisdiction under the clauses of the Letters Patent referred to by learned counsel would definitely fall within the definition of "criminal jurisdiction", but it is incorrect to suggest that the aforesaid clauses define the outer limits of the terms "criminal jurisdiction". We have already concluded above situations which though beyond the scope of the clauses of the Letters Patent, would still fall within the definition of the term "criminal jurisdiction". Accordingly, we find no merit even in the seventh submission advanced before us.

For the reasons recorded hereinabove, we are of the view that the instant "Special Appeal" having been filed by the appellant against an order rendered by a learned Single Judge of this Court in exercise of "criminal jurisdiction" vested in him, is not maintainable under Rule 5, contained in Section C, of Chapter VIII, of the "Rules of the Court, 1952". As such, the instant Special Appeal" is hereby dismissed as not maintainable.