Kasinath Nayak Vs State and Ors.

In the present intra-Court appeal, the appellant has put to challenge an order dated 06.03.2014 passed by a learned Single Judge in W.P.(Cri) No.1066 of 2013. When this appeal was taken up on 11.09.2014, a Division Bench of this Court formulating the following question, had referred the matter to a Full Bench for an authoritative decision:-

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“The precise question which arises to be answered is whether any decision rendered by a Single Judge of this Court vis-à-vis a criminal matter in exercise of the writ jurisdiction under Article 226 of the Constitution of India is appealable under Clause-10 of the Letters Patent before a Division bench of this Court or not.”

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A Full Bench of this Court has answered the reference by a judgment dated 19.11.2015 in the following terms:-

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“11. The following are the cases, cited before this Court at the time of hearing, in which some of the High Courts have taken a divergent view on the issue which falls for consideration before this Court.

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i. In Gangaram Kandaram v. Sunder Chhkha Amin and others, 2000 (2) ALT 448, where the learned Single Judge while exercising extraordinary jurisdiction under Article 226 quashed the criminal proceedings, the Full Bench of the Andhra Pradesh High Court held that such exercise of powers is not in exercise of “criminal jurisdiction”.

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ii. In the case of Adishwar Jain v. U.O.I. reported in 2006 Crl.L.J. 3193, the High Court of Judicature at Punjab and Haryana while dealing with the question of maintainability held that an appeal under the Letters Patent is maintainable against the judgment of a learned Single Judge in the petitioner under Article 226 of the Constitution praying for issuance of Habeas Corpus.

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iii. This Court in the case of Bholanath Rout v. State of Orissa & others reported in 2013 (I) OLR 341, while entertaining a writ appeal (Letters Patent Appeal) filed against the judgment of the learned Single Judge refusing to direct investigation by an independent agency, set aside the judgment and directed that the case should be re-investigated by an independent agency like the Crime Branch.

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On careful perusal of these judgments, this Court finds that the view taken by the Full Bench of the Andhra Pradesh High Court in Gangaram Kandaram (supra) is not acceptable inasmuch, as the same is not in consonance with the ratio laid down in the case of S.A.L. Narayan Row (supra). Similarly, since in the case of Bholanath Rout (supra) the question of maintainability was not raised and in the case of Adishwar Jain (supra) dealt with habeas corpus petition, those judgments are not relevant for the purpose of the present reference.

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From the above analysis of the decisions of the apex Court and other High Courts, this Court arrives at the conclusion that the question, whether an order passed by learned Single Judge in a writ petition under Article 226 of the Constitution of India is a proceeding under civil jurisdiction or criminal jurisdiction, can be determined by taking into consideration the nature of proceeding. That means, if the relief asked for in a writ petition is against exercise of power under criminal law or the proceeding would be a criminal proceeding, or the proceeding if carried

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to its conclusion ultimately may result in sentence of death or imprisonment or file or forfeiture of property, such writ petition should be treated as filed against a proceeding under criminal jurisdiction. In such a case, the Letters Patent Appeal/Writ Appeal is not maintainable.

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In view of the above settled position of law, it is to be seen whether the writ petition, from which this appeal arises, was filed invoking the “criminal jurisdiction” of this Court and/or the impugned order was passed “in exercise of criminal jurisdiction”. As it appears from the records produced before this Court, the appellant being the informant filed a writ petition {W.P.(Crl.) No.1066 of 2013} challenging the action of the I.I.C., Khaira Police Station, Balasore. His grievance was that he lodged an FIR, which was registered as Khaira P.S. Case No.61 of 2011 under Sections 498-A, 302, 304-B and 34, I.P.C. read with Section 4 of the Dowry Prohibition Act. But, the I.I.C. filed charge-sheet deliberately omitting three other accused persons named in the FIR. Therefore, alleging that the investigation conducted by the IIC was not fair and proper, the appellant in the aforesaid writ application prayed for further investigation. The learned Single Judge ultimately found that there was no serious irregularity or mala fides in the investigation and was pleased to dismiss the writ petition vide order dated 06.03.2014. Aggrieved by the said order, the appellant has filed this appeal. If this appeal is allowed and relief sought for in the writ petition is acceded to, it would amount to directing further investigation to Khaira P.S. Case No.61 of 2011. In such event, it may lead to filing of charge-sheet by the Investigating Officer, framing of charge and can result in conviction and order of sentence. Therefore, in terms of the ratio laid down in S.A.L. Narayan Row (supra), it can be safely held that in the instant case the writ petition was filed invoking “criminal jurisdiction” of the learned Single Judge and the learned Single Judge has passed the impugned order “in exercise of criminal jurisdiction”. As such, the instant writ appeal clearly comes under the third excluded category of Clause-10 of the Letters Patent which bars filing of a writ appeal.

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For the foregoing discussions, the reference is answered in negative and the writ appeal is required to be dismissed as not maintainable.”

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After having held as noted above, the Full Bench opined that the writ appeal was required to be dismissed as not maintainable.

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In view of the above noted opinion of the Full Bench, this writ appeal is dismissed as not maintainable.

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(Chakradhari Sharan Singh)

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Chief Justice

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Aswini/SK Jena, Secy.

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(M.S.Raman)
Judge

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Signature Not Verified

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Digitally Signed Signed by: ASWINI KUMAR SETHY Designation: Personal Assistant (Secretary-in-charge) Reason: Authentication Location: ORISSA HIGH COURT, CUTTA CK Date: 07-Mar-2024 16:32:58

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Kasinath Nayak v. State and Ors.

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Kasinath Nayak v. State and Ors.

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