The nature and scope of an appellate jurisdiction

The Apex Court in the context of considering the nature and scope of an appellate jurisdiction, in Tirupati Balaji Developers Pvt. Ltd. and Others Vs. State of Bihar and Others,  explained the legal position thus in paragraphs 11 and 30:

11. The very conferral of appellate jurisdiction carries with it certain consequences. Conferral of a principal substantive jurisdiction carries with it, as a necessary concomitant of that power, the power to exercise such other incidental and ancillary powers without which the conferral of the principal power shall be rendered redundant. As held by Their Lordships of the Privy Council in AIR 1932 165 (Privy Council) (Sir Dinshaw Mulla speaking for the Bench of five),an appeal is an application by a party to an appellate court asking it to set aside or revise a decision of a subordinate court. The appeal does not cease to be an appeal though irregular or incompetent. Placing on record his opinion, Subramania Ayyar, J. as a member of the Full Bench (of five Judges) in Chappan v. Moidin Kutti – ILR 1899) Mad.68 (at ILR p.80) stated inter alia that appeal is the removal of a cause or a suit from an inferior to a superior judge or court for re-examination or review. According to Wharton’s Law Lexicon such removal of a cause or suit is for the purpose of testing the soundness of the decision of the inferior court. In consonance with this particular meaning of appeal, “appellate jurisdiction” means “the power of a superior court to review the decision of an inferior court”.

Here the two things which are required to constitute appellate jurisdiction, are the existence of the relation of superior and inferior court and the power on the part of the former to review decisions of the latter. This has been well put by Story: ‘The essential criterion of appellate jurisdiction is, that it revises and corrects the proceedings in a cause already instituted and does not create that cause. In reference to judicial tribunals an appellate jurisdiction, therefore, necessarily implies that the subject-matter has been already instituted and acted upon, by some other court, whose judgment or proceedings are to be revised,’ (Section 1761, Commentaries on the Constitution of the United States) (ILR.p.80).

28. The very existence of appellate jurisdiction obliges the lower jurisdiction to render all of its assistance to the higher jurisdiction to enable the exercise of appellate jurisdiction fully and effectively. the lower forum may be called upon to certify its record of case and proceedings to the superior forum. The superior forum may stand in need of some information which being in the possession or knowledge of the subordinate forum, shall have to be made available only by it. The superior forum may issue a stay order or restraint order or may suspend, expedite or regulate the proceedings in the subordinate forum. During or at the end of exercise of the appellate jurisdiction any direction made by the higher forum shall have to be complied with by the lower forum, otherwise the hierarchy becomes meaningless.

Definition of appeal

The word ‘appeal’ is not defined even in the CPC and in ordinary parlance would mean “call to higher tribunal for deliverance from decisions of the lower”. In Chappan v. Moidin Kutti 1899 22 Mad 68[(1899) ILR 22 Mad 68 (FB)] the Madras High Court after referring to the meaning of word ‘appeal’ in various dictionaries observed that the appeal has been held to mean “the removal of a cause from an inferior to a superior court for the purpose of testing the soundness of the decision of the inferior court.” The Supreme Court in Garikapatti Veeraya Vs. N. Subbiah Choudhury, observed that the suit, appeal and second appeal were to be regarded as one legal proceeding. It laid down certain principles, all of which may not be quite relevant for the present case before me, but I am tempted to quote the same. These are :-(para 23).

“From the decisions cited above the following principles clearly emerge:- (i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding. (ii) The right of appeal is not a mere matter of procedure but is a substantive right. (iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit. (iv) The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal. (v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise.”

 

The Supreme in Triupati Balaji Developers (P) Ltd., v. State of Bihar reported in AIR 2004 SCW 2522, considered the jurisdiction of the appellate authority. In Paragraph 11, the Supreme Court held as follows:

11. The very conferral of appellate jurisdiction carries with it certain consequences, Conferral of a principal substantive jurisdiction carries with it, as a necessary concomitant of that power, the power to exercise such other incidental and ancillary powers without which the conferral of the principal power shall be rendered redundant. As held by their Lordships of the Privy Council in Nagendra Nath Dey v. Suresh Chandra Dey and Ors. AIR 1939 PC 165 (Sir Dinshah Mull a speaking for the Bench of five), an appeal is an application by a party to an appellate Court asking it to set aside or reverse a decision of a subordinate Court. The appeal does not cease to be an appeal though irregular or incompetent. Placing on record his opinion, Subramania Ayyar, J. as a member of the Full Bench (of five judges) in Chappan v. Moidin Kutti ILR (1899) Mad 68 stated inter alia that appeal is “the removal of a cause or a suit from an inferior to a superior judge or court for re-examination of review”. According to Wharton’s Law Lexicon such removal of a cause or suit is for the purpose of testing the soundness of the decision of the inferior court, in consonance with this particular meaning of appeal, “appellate jurisdiction” means “the power of a superior court to review the decision of an inferior court.” “Here the two things which are required to constitute appellate jurisdiction, are the existence of the relation of superior and inferior court and the power on the part of the former to review decision of the latter. This has been well put by story: “The essential criterion of “appellate jurisdiction” is, that it revises and corrects the proceedings in a cause already instituted and does not create that cause. In reference to judicial tribunals an appellate jurisdiction, therefore, necessary implies that the subject-matter has been already instituted and acted upon, by some other court, whose judgment or proceedings are to be reversed,” (Section 1761, Commentaries on the Constitution of the United States)….

However, it made general observations with respect to the powers of an appellate forum qua the subordinate forum as follows:-

9. In a unified hierarchical judicial system which India has accepted under its Constitution, vertically the Supreme Court is placed over the High Courts. The very fact that the Constitution confers an appellate power on the Supreme Court over the High Courts, certain consequences naturally flow and follow. Appeal implies in its natural and ordinary meaning the removal of a cause from any inferior court or tribunal to a superior one for the purpose of testing the soundness of decision and proceedings of the inferior court or tribunal. The superior forum shall have jurisdiction to reverse, confirm, annul or modify the decree or order of the forum appealed against and in the event of a remand the lower forum shall have to rehear the matter and comply with such directions as may accompany the order of remand. The appellate jurisdiction inherently carries with it a power to issue corrective directions binding on the forum below and failure on the part of the latter to carry out such directions or show disrespect to or to question the propriety of such directions would – it is obvious -be destructive of the hierarchical system in administration of justice. The seekers of justice and the society would lose faith in both.

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11. The very conferral of appellate jurisdiction carries with it certain consequences. Conferral of a principal substantive jurisdiction carries with it, as a necessary concomitant of that power, the power to exercise such other incidental and ancillary powers without which the conferral of the principal power shall be rendered redundant. As held by their Lordships of the Privy Council in AIR 1932 165 (Privy Council) (Sir Dinshaw Mulla speaking for the Bench of five), an appeal is an application by a party to an appellate court asking it to set aside or revise a decision of a subordinate court. The appeal does not cease to be an appeal though irregular or incompetent. Placing on record his opinion, Subramania Ayyar, J. as a member of the Full Bench (of five Judges) in Chappan v. Moidin Kutti [ ILR (1899) 22 Mad 68 : 8 MLJ 231] (at ILR p. 80) stated inter alia that appeal is “the removal of a cause or a suit from an inferior to a superior judge or court for re-examination or review”. According to Wharton’s Law Lexicon such removal of a cause or suit is for the purpose of testing the soundness of the decision of the inferior court. In consonance with this particular meaning of appeal, “appellate jurisdiction” means “the power of a superior court to review the decision of an inferior court”. “Here the two things which are required to constitute appellate jurisdiction, are the existence of the relation of superior and inferior court and the power on the part of the former to review decisions of the latter. This has been well put by Story: “The essential criterion of appellate jurisdiction is, that it revises and corrects the proceedings in a cause already instituted and does not create that cause. In reference to judicial tribunals an appellate jurisdiction, therefore, necessarily implies that the subject-matter has been already instituted and acted upon, by some other court, whose judgment or proceedings are to be revised,’ (Section 1761, Commentaries on the Constitution of the United States).”

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30. The very existence of appellate jurisdiction obliges the lower jurisdiction to render all of its assistance to the higher jurisdiction to enable the exercise of appellate jurisdiction fully and effectively. The lower forum may be called upon to certify its record of case and proceedings to the superior forum. The superior forum may stand in need of some information which being in the possession or knowledge of the subordinate forum, shall have to be made available only by it. The superior forum may issue a stay order or restraint order or may suspend, expedite or regulate the proceedings in the subordinate forum. During or at the end of exercise of the appellate jurisdiction any direction made by the higher forum shall have to be complied with by the lower forum, otherwise the hierarchy becomes meaningless.

The Apex Court in Bolin Chetia v. Jogadish Bhuyan, (2005) 6 SCC 81 : (AIR 2005 SC 1872) in paragraph 9 has held as under :-

“The word appeal is not found defined either in the Act or in the Code of Civil Procedure, 1908 (hereinafter “the Code” for short). In its natural and ordinary meaning, an appeal is a remedy by which a cause determined by an inferior forum is subjected before a superior forum for the purpose of testing the correctness of the decision given by the inferior forum. The right of appeal is a substantive and valuable right of any appellant who is normally a person aggrieved by the impugned decision….”

In Shankar Ramchandra Abhyankar Vs. Krishnaji Dattatreya Bapat, , the Supreme Court pointed out that the appeal is the right of entering the superior court and invoking its aid and interposition to redress the error or the Court below. There are two important postulates of constituting the appellate jurisdiction: (i) the existence of the relation of superior and inferior Court; and (ii) the power in the former to review decisions of the later. Such jurisdiction is capable of being exercised in a variety of forms. An appeal is a process of civil law origin and removes a cause, entirely subjecting the facts as well as the law, to a review and a retrial.

Suit, appeal and second appeal have to be regarded as one legal proceeding

The Supreme Court in Garikapatti Veeraya Vs. N. Subbiah Choudhury, observed that the suit, appeal and second appeal were to be regarded as one legal proceeding. It laid down certain principles, all of which may not be quite relevant for the present case before me, but I am tempted to quote the same. These are :-(para 23).

“From the decisions cited above the following principles clearly emerge:- (i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding. (ii) The right of appeal is not a mere matter of procedure but is a substantive right. (iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit. (iv) The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal. (v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise.”

Appellate Jurisdiction is larger than mere hearing of an appeal or revision

The question with reference to Section 115 of the Civil P. C., 1908 was again considered by a Full Bench of the Madras High Court in P. P. P. Chidambara Nadar v. C. P. A. Rama Nadar, ILR (1937) Mad 616 : (AIR 1937 Mad 385) (FB). Venkatasubba Rao J. following the dictum of Subramania Ayyar J. in Chap-pan v. Moidin Kutti ((1899) ILR 22 Mad 68) (FB) (Supra) held that there was no essential difference between proceedings by way of appeal and by way of revision, except in regard to the conditions for the exercise of the powers. A similar question arose in State of Madras v. Asher Textiles Ltd., ILR (1960) Mad 130 : (AIR 1960 Mad 180) and it was observed that (at p. 183 of AIR),–

“It is needless to point out that it has been an almost invariable practice of this court to take note of subsequent events, while disposing of civil revision petitions under Section 115, Civil p. C. and grant reliefs to the parties in accordance With the altered circumstances. The nature of the jurisdiction is appellate and all the powers inherent in an appellate court would be available to the court of revision, subject to the limitation that it could interfere only under those conditions prescribed by the statute. If those conditions are satisfied, its powers are as wide as the Court of first instance or the appellate court.”

16. In one sense the jurisdiction under Section 115, C. P. C. is wider than even the jurisdiction of an appellate court It follows therefore that a court of revision would have all the powers of appellate court except that the conditions of interference would have to be in accordance with the relevant statutory provisions i. e. Section 115 of the Civil P. C., 1908.

Now, it is well settled that the court is bound to give effect to a statute parsed during the pendency of an appeal. In Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri, AIR 1941 FC 5 Vardachariar J. held that an appeal being in the nature of rehearing, it would be open to the court to mould its reliefs to be granted after taking in account even the facts and events which have come into existence after the decree appealed against i. e., the powers of an ap–pellate court by virtue of Order 41, Rule 33, C. P. C. are co-extensive with those of the original Court. In this connection, reference may be made to the decision in Quilter v. Mapleson, (1882) 9 QBD 672. In this case, it was held that though a judgment of the subordinate court was correct according to law as it stood on the date thereof, the court of appeal could grant relief to the appellant according to law as it stood at the date of hearing of the appeal. There is no reason why the High Court, while exercising its revisional powers, cannot take note of a subsequent change in the law and grant relief to the parties on the basis of such law. The decision in Ahser Textiles Ltd. (AIR 1960 Mad 180) (Supra) is a clear authority on the point. I am inclined to take the same view. Recently, their Lordships of the Supreme Court in Pasupuleti Venkateswarlu v. Motor and General Traders, AIR 1975 SC 1409 have reiterated the same view. Thus the court is bound to take notice of a change in law. Explanation, which is in the nature of a definition clause, having been amended, the rights of the parties must necessarily be governed by the amended Explanation.


Source: Rajasthan High Court
Jagdish Prasad vs Kapoor Chand And Ors. on 9 August, 1977
Equivalent citations: AIR 1978 Raj 61, 1977 WLN UC 307
Bench: A Sen

Nature of jurisdiction u/s 482 of the Cr.P.C for registration of a crime and investigation

20. The well-defined and demarcated functions in the field of crime detection by the police and its subsequent adjudication by the courts is so welt known and had been recognised way back in AIR 1945 18 (Privy Council) The Privy Council observed that just as it is essential that everyone accused of a crime should have free access to a court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. It is held: (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 cognizable 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 the 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 intervent in an appropriate case when moved u/s 491 Code of Criminal Procedure, 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. It has sometimes been though that Section 561-A has given increased powers to the Court which it did not posses before that section was enacted. But this is not so. The section gives to new powers, it only provides that those which the Court already inherently possess shall be preserved and in inserted, as Their Lordships think, lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Code of Criminal Procedure, and that no inherent power had survived the passing or that Act.

(Emphasis supplied)

21: In S.N. Sharma Vs. Bipen Kumar Tiwari and Others, this Court took the view that there is no mention of any power to stop an investigation by the police. The power of the police to investigate any cognizable offence is uncontrolled by the Magistrate, and it is only in cases where the police decide not to investigate the case, can the Magistrate intervene and either direct an investigation, or, in the alternative, himself proceed or depute a Magistrate subordinate to him to proceed to enquiry into the case. “The power of the police to investigate has been made independent of any control by the Magistrate.” It is further held: (SCC 657-58, para 11)

11…though the Code of Criminal Procedure gives to the police unfettered power to investigate all cases where they suspect that a cognizable offence has been committed, in appropriate cases an aggrieved person can always seek a remedy by invoking the power of the High Court under Article 226 of the Constitution under which, if the High Court could be convinced that the power of investigation has been exercised by a police officer mala fide, the High Court can always issues a writ of mandamus restraining the police officer, from misusing his legal powers.

22. This position has been further made clear by this Court in its authoritative pronouncement in State of Bihar and Another Vs. J.A.C. Saldanha and Others, hus: (SCC pp. 572-72, paras 25-26)

25. There is a clear-cut and well demarcated 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 u/s 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 well defined and well demarcated function in the field of crime detection and its subsequent adjudication between the police and the Magistrate. This has been recognised way back in Emperor v. Khwaja Nazir Ahmad….

26. This view of the Judicial Committee clearly demarcates the functions of the executive and the judiciary in the field of detection of crime and its subsequent trial and it would appear that the power of the police to investigate into a cognizable offence is ordinarily not to be interfered with by the judiciary.

(Emphasis supplied)

23. The observations of this Court in M.C. Abraham and Another, A.K. Dhote and J.F. Salve and Another Vs. State of Maharashtra and Others, in this regard deserve to be noticed. In the said case it was held; (SCC pp. 659-60, para 17)

17. The principle, therefore, is well settled that it is for the investigating agency to submit a report to the Magistrate after full and complete investigation. The investigating agency may submit a report finding the allegations substantiated. It is also open to the investigating agency to submit a report finding no material to support the allegations made in the first information report. It is open to the Magistrate concerned to accept the report or to order further enquiry. But what is clear is that the Magistrate cannot direct the investigating agency to submit a report that is in accord with his views. Even in a case where a report is submitted by the investigating agency finding that no case is made out for prosecution, it is open to the Magistrate to disagree with the report and to take cognizance, but what he cannot do is to direct the investigating agency to submit a report to the effect that the allegations have been supported by the material collected during the course of investigation.

24. In State of West Bengal Vs. S.N. Basak, this Court reiterated the principle that the police has statutory right to investigate into the circumstances of any alleged cognizable offence without authority from a Magistrate and that power of the police to investigate cannot be interfered with by the exercise of power under the inherent power of the High Court. In Hazari Lal Gupta Vs. Rameshwar Prasad and Another, etc., his Court while explaining the nature and purport of the inherent jurisdiction of the High Court observed that in exercising jurisdiction u/s 561-A of the Code of Criminal Procedure, 1898, the High Court can quash proceedings if there is no legal evidence or if there is any impediment to the institution or continuance of proceedings but the High Court does not ordinarily enquiry as to whether the evidence is “reliable or not”. Where again, investigation into the circumstances of an alleged cognizable offence is carried on under the provisions of the Code of Criminal Procedure the High Court does not interfere with such investigation because it would then be the impeding investigation and jurisdiction of statutory authorities to exercise power in accordance with the provisions of the Code of Criminal Procedure.

25. In Nirmaljit Singh Hoon Vs. The State of West Bengal and Another, his Court held that: (SCC p. 767, para 35)

35….the police authorities have under Sections 154 and 156 of the Code a statutory right to investigate into a cognizable offence without requiring any sanction from a judicial authority, and even the High Court has no inherent power u/s 561-A of the Code to interfere with the exercise of that statutory power.

26. In State of West Bengal and Others Vs. Sujit Kumar Rana, this Court while dealing with the nature of inherent powers of the High Court held that the inherent power of the High Court is saved only where an order has been passed by the criminal court which is required to be set aside to secure the ends of justice or where the proceedings pending before a court amounts to abuse of the process of court. The power u/s 482 of the Code can be exercised by the High Court in relation to a matter pending before a criminal court or where a power is exercised by the Court under the Code of Criminal Procedure.

27. In our view, there is nothing like unlimited arbitrary jurisdiction conferred on the High Court u/s 482 of the Code. The power has to be exercised sparingly, carefully and with caution only where such exercise is justified by the tests laid down in the section itself. It is well settled that Section 482 does not confer any new power on the High Court but only saves the inherent power which the Court possessed before the enactment of the Code. There are three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse’ of the process of court, and (iii) to otherwise secure the ends of justice.

28. Chandrachud, J. (as His Lordship then was), in Kurukshetra University and Another Vs. State of Haryana and Another, while considering the nature of jurisdiction conferred upon the High Court u/s 482 of the Code observed; (SCC p. 451, para 2).

2….It ought to be realised that inherent powers do not confer an arbitrary jurisdictional the High Court to act according to whim or caprice. That statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases.


SOURCE :

SUPREME COURT OF INDIA

DIVINE RETREAT CENTRE   Vs.   STATE OF KERALA AND OTHERS [Decided on : 11-03-2008]

In case Police is doing nothing then what to do by the informant or victim

This Court in M.C. Mehta Vs. Union of India (UOI) and Others, upon analysis of the relevant provisions of the Code held that after completion of the investigation if it appears to the investigating officer that there is no sufficient evidence, he may decide to release the suspected accused. If, it appears to him that there is sufficient evidence or reasonable ground to place the accused on trial, he has to take necessary steps u/s 170 of the Code. “In either case, on completion of the investigation he has to submit a report to the Magistrate u/s 173 of the Code in the prescribed form who is required to consider the report judicially for taking appropriate action (hereof” We do not propose to deal with the options available in law to the Magistrate and even to a victim or informant as the case may be.

39. The sum and substance of the above deliberation and analysis of the law cited leads us to an irresistible conclusion that the investigation of an offence is the field exclusively reserved for the police officers whose powers in that field are unfettered so long as the power to investigate into the cognizable offences is legitimately exercised in strict compliance with the provisions under Chapter XII of the Code. However, we may hasten to add that unfettered discretion does not mean any unaccountable or unlimited discretion and act according to one’s own choice. The power to investigate must be exercised strictly on the condition of which that power is granted by the Code itself.

40. In our view, the High Court in exercise of its inherent jurisdiction cannot change the investigating officer in the midstream and appoint any agency of its own choice to investigate into a crime on whatsoever basis and more particularly on the basis of complaints or anonymous petitions addressed to a named Judge. Such communications cannot be converted into suo motu proceedings for setting the law in motion. Neither are the accused nor the complainant or informant entitled to choose their own investigating agency to investigate a crime in which they may be interested.

41. It is altogether a different matter that the High Court in exercise of its power under Article 226 of the Constitution of India can always issue appropriate directions at the instance of an aggrieved person if the High Court is convinced that the power of investigation has been exercised by an investigating officer mala fide. That power is to be exercised in the rarest of the rare case where a clear case of abuse of power and noncompliance with the provisions falling under Chapter XII of the Code is clearly made out requiring the interference of the High Court. But even in such cases, the High Court cannot direct the police as to how the investigation is to be conducted but can always insist for the observance of process as provided for in the Code.

42. Even in cases where no action is taken by the police on the information given to them, the informant’s remedy lies under Sections 190, 200 Code of Criminal Procedure but a writ petition in such a case is not to be entertained. This Court in Gangadhar Janardan Mhatre Vs. State of Maharashtra and Others, decided the matter.

13. When the information is laid with the police, but no action in that behalf is taken, the complainant is given power u/s 190 read with Section 200 of the Code to lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facies case, instead of issuing process to the accused, he is under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint u/s 203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and would issue process to the accused. These aspects have been highlighted by this Court in All India Institute of Medical Sciences Employees’ Union (Regd.) through its President Vs. Union of India (UOI) and Others, . It was specifically observed that a writ petition in such cases is not to be entertained.


SOURCE :

SUPREME COURT OF INDIA

DIVINE RETREAT CENTRE   Vs.   STATE OF KERALA AND OTHERS [Decided on : 11-03-2008]

Whether the anonymous petition is to be treated as public interest litigation

57. The question that falls for our consideration is whether the anonymous letter sent in the name of a Judge can be entertained as public interest litigation. It is well settled that a public interest litigation can be entertained by the constitutional courts only at the instance of a bona fide litigant. The author of the letter in this case is anonymous, there is no way to verify his bona fides and in fact no effort was made by the Court to verify about the authenticity, truth or otherwise of the contents of the petition.

58. It is not the case, of the Appellant that no writ petition under Article 226 of the Constitution of India can be entertained on the strength of a letter addressed by a bona fide litigant to the High Court. This Court in Pepsi Foods Ltd. and Another Vs. Special Judicial Magistrate and Others, has accepted a letter written to the Supreme Court by one Sunil Batra, a prisoner from Tihar Jail, Delhi complaining of inhuman torture in the jail. In Dr. Upendra Baxi (I) Vs. State of Uttar Pradesh and Another, this Court entertained letter sent by the two Professors of Delhi University seeking enforcement of the constitutional right of the inmates in a protective home, at Agra who were living in inhuman and degrading conditions. In Mrs. Veena Sethi Vs. State of Bihar and Others, this Court treated letter addressed to a Judge of this Court by the Free Legal Aid Committee at Hazaribagh, Bihar as a writ petition. In Citizens for Democracy Vs. State of Assam and Others, upon which reliance has been placed by Shri. P.P. Rao, this Court entertained a letter addressed by Shri. Kuldip Nayar, an eminent journalist, in his capacity as President of “Citizens for Democracy” to one of the Judges of this Court complaining of human rights violations of TAD A detenus and the same was treated as a petition under Article 32 of the Constitution of the India. But in none of these cases, the Court entertained anonymous petition and converted the same into a public interest litigation.

59. We do not propose to burden this judgment with various authoritative pronouncements of this Court laying down the parameters of public interest litigation. Suffice it to recapitulate that this Court uniformly and consistently held that the individual who moves the Court for judicial redress in cases of public interest litigation must be acting bona fide with a view to vindicating the cause of justice and not for any personal gain or private profit or of the political motivation or other oblique consideration. The Court should not allow itself to be activised at the instance of such person and must reject his application at the threshold, whether it be in the form of a letter addressed to the Court or even in the form of a regular petition filed in court. In S.P. Gupta Vs. President of India and Others, this Court in clear and unequivocal terms observed that it would be prudent for the constitutional courts to “confine this strategic exercise of jurisdiction to cases where legal wrong or legal injury is caused to a determinate class or group of persons or the constitutional or legal right of such determinate class or group of persons is violated and as far as possible, not entertain cases of individual wrong or injury at the instance of a third party, where there is an effective legal aid organisation which can take care of such cases”

60. The law in this regard is summarised in Janata Dal v. H.S. Chowdhary thus: (SCC p. 348, para 109)

109. It is thus clear that only a person acting bona fide and having sufficient interest in the proceeding of PIL will alone have a locus standi and can approach the court to wipe out the tears of the poor and needy, suffering from violation of their fundamental rights, but not a person for personal gain or private profit or political motive or any oblique consideration Similarly, a vexatious petition under the colour of PEL brought before the court for vindicating any personal grievance, deserves rejection at the threshold.

61. In Dattaraj Nathuji Thaware Vs. State of Maharashtra and Others, this Court observed: (SCC p. 595, para 12)

12. … The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not be publicity oriented or founded on personal vendetta. As indicated above, court must be careful to see that a body of persons or member of the public, who approaches the court is acting bona fide and not for personal gain or private motive or political motivation or other oblique considerations. The court must not allow its process to be abused for oblique considerations by masked phantoms who monitor at times from behind. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives, and try to bargain for a good deal as well as to enrich themselves. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busybodies deserve to be thrown out by rejection at the threshold, and in appropriate cases with exemplary costs.

62. In State of West Bengal and Others Vs. Sampat Lal and Others, this Court administered a caution stating when communications complaining of violation of rights of the deprived and vulnerable sections of the community are sent to the court, care and caution should be adopted to ensure that the process of the court is not abused or misused:

26. … The court should be prima facie satisfied that the information laid before the court is of such a nature that it calls for examination and this prima facie satisfaction may be derived from the credentials of the informant, namely, what is the character or standing of the informant or from the nature of the information given by him, namely, whether it is vague and indefinite or contains specific allegations as a result of survey or investigation or from the gravity or seriousness of the complaint set out in the information or from any other circumstance or circumstances appearing from the communication addressed to the court or to a Judge of the court on behalf of the court.” State of West Bengal and Others Vs. Sampat Lal and Others,

63. How to verify the credentials, character or standing of the informant who does not disclose his identity? In the instant case, there is no whisper in the order passed by the High Court about any attempts made to verify the credentials, character or standing of the informant. Obviously, the High Court could not have verified the same since the petition received by it is an unsigned one.

64. In Bandhua Mukti Morcha Vs. Union of India (UOI) and Others, this Court visualised grave danger inherent in a practice where a mere letter is entertained as a petition from a person whose antecedents and status are unknown or so uncertain that no sense of responsibility can, without anything more, be attributed to the communication. It has been observed that the document petitioning the court for relief should be supported by satisfactory verification. This requirement is all the greater where petitions are received by the court through the post. It is never beyond the bound of possibility that an unverified communication received through the post by the court may in fact have been employed mala fide, as an instrument of coercion or blackmail or other oblique motive against a person named therein who holds a position of honour and respect in society. The Court must be ever vigilant against the abuse of its process. It Cannot do that better in the matter than insisting at the earliest stage, and before issuing notice to the Respondent, that an appropriate verification of the allegations be supplied.

65. In our view, the public interest litigant must disclose his identity so as to enable the Court to decide that the informant is not a wayfarer or officious intervener without any interest or concern.


SOURCE :

SUPREME COURT OF INDIA

DIVINE RETREAT CENTRE   Vs.   STATE OF KERALA AND OTHERS [Decided on : 11-03-2008]

The importance of roster in High Court

67. It is clear from the record that the learned Judge was not dealing with any public interest litigation cases as on the date of entertaining anonymous petition. It is beyond pale of any doubt and controversy that the administrative control of the High Court vests in the Chief Justice is the master of the roster. He alone has the prerogative to constitute Benches of the Court and allocate cases to the Benches so constituted and the puisne judges can only do that work as is allotted to them by the Chief Justice or under his directions: that the Puisne Judges cannot “pick and choose” any case pending in the High Court and assign the same to himself or themselves for disposal without appropriate orders of the Chief Justice. (See State of Rajasthan Vs. Prakash Chand and Others,

68. This Court in more than one case expressed its reservation about individual Judges entertaining the communications and petitions addressed to them to pass orders on judicial side. In Bandhua Mukti Morcha v. Union of India the Court in clear and unequivocal terms declared that communications and petitions addressed to a particular Judge are improper and violate the institutional personality of the court. They also embarrass the Judge to whom they are personally addressed.

54. …The fundamental conception of the court must be respected, that it is a single indivisible institution, of united purpose and existing solely for the high constitutional functions for which it has been created. The conception of the court as a loose aggregate of individual Judges, to one or more of whom judicial access may be particularly had, undermines its very existence and endangers its proper and effective functioning”. (Bandhua Mukti Morcha case, SCC p. 229, para 54)

(Emphasis supplied)

69. In our view, the learned Judge ought not to have entertained the anonymous petition, contends of which remain unverified and made it basis with the judicial duty of disposing of PIL matters.

70. Institution’s own reputation is a priceless treasure. History teaches us that the independence of the judiciary is jeopardised when courts become embroiled in the passions of the day and assume primary responsibility to resolve the issues which are otherwise not entrusted to them by adopting procedure which are otherwise not known.

71. There is heavy duty cast upon the constitutional courts to protect themselves from the onslaught unleashed by unscrupulous litigants masquerading as public interest litigants. The individual Judges ought not to entertain communications and letters personally addressed to them and intimate action on the judicial side based on such communication so as to avoid embarrassment; that all communication and petitions invoking the jurisdiction of the Court must be addressed to the entire Court, that is to say, the Chief Justice and his companion Judges. The individual letters, if any, addressed to a particular Judge are required to be placed before the Chief Justice for consideration as to the proposed action on such petitions. Each Judge cannot decide for himself as to what communication should be entertained for setting the law in motion be it in PIL or in any jurisdiction.

72. It is needless to say that none of these aspects have been taken into consideration by the High Court before setting the criminal law in motion as against the Appellant. The sweeping directions issued by the Court are in the nature of ordering an inquisition against the Appellant and the persons connected with it to find out as to whether they have committed any cognizable offence. Such a course is impermissible in law.


SOURCE :

SUPREME COURT OF INDIA

DIVINE RETREAT CENTRE   Vs.   STATE OF KERALA AND OTHERS [Decided on : 11-03-2008]

Investigation under Money-Laundering Act and Final Report

The term ‘investigation’ has not been defined in the Money-Laundering Act but it has been defined in the Code. With reference to the said definition of the term ‘investigation’ appearing in the Code, it was contended on behalf of the Enforcement Directorate that the investigation as defined in the Code, only includes the proceedings for the purpose of collection of evidence conducted by the police officer and does not include submission of final report, which is provided u/s 173 of the Code.

13. It is true that the term ‘investigation’ has not been defined in the Money-Laundering Act, but the said term has been defined under the Code, as quoted below:

(h) “investigation” includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf;

14. The question as to whether the term ‘investigation’ shall include submission of Final Form or not, has been set at rest by the Supreme Court in the case of H.N. Rishbud and Inder Singh Vs. The State of Delhi, . The relevant finding of the Supreme Court in paragraph 5 of the judgment is quoted below:

Thus under the Code investigation consists generally of the following steps: (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places or seizure of things considered necessary for the investigation and to be produced at the trial, and (5) Formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a chargesheet u/s 173.

15. Similar view has also been expressed by the learned Single Judge of Orissa High Court in the case of Smt. Sabita Praharaj Vs. Smt. Gitarani Praharaj and Others, .

16. Section 173 of the Code makes it obligatory on the part of the’ Officer in charge to submit the report of completion of investigation before the concerned Court. Section 173(2) of the Code provides that as soon as the investigation is completed, the Officer in charge of the police station, shall file a report in the form prescribed by the State Government giving certain information as indicated in the said provision including nature of the information and as to whether any offence appears to have been committed and if so, by whom. It will also include filing of the final report, if no material is found during investigation for submission of a charge-sheet. It will not be out of place to say that when an investigation is conducted in respect of scheduled offences and no material is found to support the allegations during the investigation, Final Form is also submitted u/s 173 of the Code. Therefore, there is no reason why the term ‘investigation’ shall not include submission of final report when in course of investigation no material is found against the accused for submission of the charge-sheet.

17. Apart from above, it can never be the intention of the Legislature while legislating the Money-Laundering Act to empower the Directorate of Enforcement to sit over the records when after investigation no material is found in respect of the offence alleged under the said Act against an accused keeping the public, the complainant and most importantly the Court in dark regarding nature and extent of investigation and outcome thereof. Lack of judicial scrutiny, coupled with lack of transparency would confer too excessive a power/discretion upon the Director of Enforcement. Judicial scrutiny under Article 226 would also not be of any help when the petitioner has no access to the nature, manner and extent of investigation by the Directorate. We cannot overlook the fact that generally persons engaged in money laundering are likely to be rich and powerful. This should not be seen as doubting the personnel presently serving in the directorate, but then there would be others who would occupy these positions in future.

18. For avoiding undesirable consequences it is open in statutory interpretation to read it down or read it wide. However, we are of the view that Section 65 of the Money-Laundering Act takes care of such a situation and the Enforcement Directorate is duty bound to submit final report or charge-sheet, as the case may be, before the Court which is designated as Special Court by the Central Government in consultation with the Chief Justice of the High Court u/s 43 of the Money-Laundering Act. In the present case, admittedly after completing investigation the Enforcement Directorate has not filed the final report on the ground that there is no provision for submission of the final report under the Money-Laundering Act. Since we hold that the term ‘investigation’ shall also include submission of final report as defined in the Code, we direct that if the process is issued by the Magistrate or upon a further investigation a charge-sheet is submitted in respect of any scheduled offence, the Enforcement Directorate will submit the Final Form before the designated Court so that the designated Court shall be in a position to examine the efforts made by way of investigation, the evidence collected during the investigation and find out as to whether the final report was justified or not. The complainant shall also get an opportunity to look into the report and submit a protest petition, if he desires. We therefore, dispose of this writ petition directing the Enforcement Directorate, in case of contingencies given above, to submit Final Form before the designated Court within 2 months from the date of knowledge of the same.


Source :

(2013) 6 ADJ 672 : (2013) 3 UPLBEC 2239

ALLAHABAD HIGH COURT

( Before : Sushil Harkauli, J; N.A. Moonis, J; L.K. Mohapatra, J )

SHIV KANT TRIPATHI  Vs. STATE OF U.P. AND OTHERS 

Criminal Misc. Writ Petition No. 4909 of 2010

Decided on : 01-08-2013