Whether a writ proceeding is civil or criminal depends on the nature of relief claimed and grounds for such relief

Whether a writ proceeding is civil or criminal, depends on the nature of relief claimed and grounds for such relief. “Civil Proceedings” or “Criminal Proceedings” are not defined anywhere. The Constitution of India does not define the expression, “Civil Proceeding” nor does the General Clauses Act. The two proceedings are entirely different and distinct, though at times it may overlap to some extent. But the distinction between the civil proceedings and criminal proceedings is well defined.

In Halsbury’s Laws of England, Fourth Edition, Vol. 11, Criminal and Civil proceedings have been distinguished thus :-

“Civil proceedings have for their object the recovery of money or other property, or the enforcement of a right or advantage on behalf of the plaintiff: criminal proceedings have for their object the punishment of a person who has committed a crime. Criminal proceedings are not to be used as a means of enforcing a civil right. Whether conduct amounts to a crime may be determined by ascertaining whether the conduct in question is followed by criminal or civil proceedings. If the proceedings will result in the punishment of a party, the conduct in question will be a crime notwithstanding that it may be a matter of small consequence. Where an act is commanded or prohibited by statute, disobedience is prima facie criminal unless criminal proceedings manifestly appear to be excluded by the statute. An act may be prohibited or commanded by a statute in such a manner that the person contravening the provision is liable to a pecuniary penalty which is recoverable as a civil debt; in such an instance contravention is not a crime.”

 In State of U.P. v. Mukhtar Singh, AIR 1957 All 505, the Division Bench of the Allahabad High Court considered the nature of the proceedings under Article 226 of the HC-NIC Page 4 of 46 Created On Tue Dec 01 01:12:36 IST 2015 Constitution of India. One of the Judges, Beg, J. explaining the nature of proceedings, held that whether a proceeding is civil or not, depends on the nature of the subject-matter of the proceeding and its object and not on the mode adopted or the form provided for enforcement of right. According to His Lordship, a proceeding which deals with the right of civil nature and otherwise of civil nature does not cease to be so just because the party chooses resort to Article 226 of the Constitution for enforcement of such right. The fact that a right has been created by the Constitution or the forum for its enforcement prescribed by it should not make any difference, if the subject-matter of the right sought to be agitated in the proceedings is itself of a civil nature, and the object of the proceedings is merely the enforcement of such a right, and not punishment of a wrong. On the other hand, Desai, J. constituting the Division Bench was of the view that a proceeding under Article 226 for a writ is not a civil proceeding. According to His Lordship, much confusion has resulted from the assumption, for which there is no warrant at all, that jurisdiction is either civil or criminal. There are several kinds of jurisdictions and there is no foundation for the view that civil and criminal jurisdiction exhaust the list of jurisdictions that can be conferred upon a High Court. According to Desai, J., Article 225 retains the civil, criminal, testamentary, intestate and matrimonial jurisdiction conferred upon the High Courts under the Letters Patent and Article 226 confers additional jurisdiction and since it is the additional jurisdiction, it must be different from the jurisdictions viz. civil or criminal. (see M/s Nagpur Cable Operators Association vs. Commissioner of Police, Nagpur, AIR 1996 Bombay 180)

The Division Bench of the Bombay High Court in J.P. Sharma v. The Phalton Sugar Works Ltd., AIR 1964 Bom 116, while dealing with the proceedings under Article 226 of the Constitution held as under :-

“The next argument of Mr. Joshi is that all proceedings under Article 226 are either civil or criminal. When a person asks for a writ of Habeas Corpus, that is a criminal proceeding. But when a person asks for any other writ than the Habeas Corpus, the proceedings are necessarily civil proceedings. The proceedings started under Article 226 are not proceedings under any Act, but are proceeding to quash the orders made under certain Acts, or for orders restraining the officers to take action under certain Acts. They are, therefore, civil proceedings and not proceedings under the Act. It is not possible to accept HC-NIC Page 5 of 46 Created On Tue Dec 01 01:12:36 IST 2015 the argument. Mr. Joshi admits that the proceedings for the issue of a writ of Habeas Corpus is a criminal proceeding. He admits that it is criminal proceeding because it is a relief asked against the arrest or retention of a person in contravention of the provisions of the criminal law. If that be so, we see no reason why we should hold that even though the relief asked is a relief against an order made under taxation laws or enforcement of the taxation laws against a person, the proceedings should not be revenue in nature. On the other hand, it would be logical to hold that the nature of the relief which is asked for in each case under Art.226 should be determinative of the nature of that proceeding. If the relief asked is against the exercise of powers under criminal law, the proceedings would be criminal proceedings. If the relief asked is for enforcement or in exercise of a civil right to prevent infringement of a civil right, the proceedings will be civil in nature. Similarly, if the relief is sought in relation to the enforcement of the taxation law, the proceedings would be revenue in nature. It is difficult to accept the contention of Mr. Joshi that proceedings under Art.226 are either civil or criminal in nature. On the other hand, we agree, with respect, with the view taken by the Patna High Court that the writ application may be a civil proceeding according to the nature of the application and the questions raised and decided in the proceedings. In the instant case, as already stated, the assessee sought to get quashed the notices issued under Section 34 of the Income-tax Act, and also prayed for an order restraining the Income-tax Officer from taking any action in enforcement of the notices. In other words, in the proceedings under the Income-tax Act, as already stated, are revenue in nature. The writ proceedings with which we were dealing, therefore, were revenue in nature.”

The question whether a writ proceeding under Article 226 of the Constitution of India is a civil proceeding or criminal proceeding is considered at great length in the judgment of the Apex Court in I.S.A. Narayan Row v. Ishwarlal Bhagwandas, AIR 1965 SC 1818. The Apex Court observed thus :-

“. . . . . The expression “civil proceedings” is not defined in the Constitution, nor in the General Clauses Act. The expression in our judgment covers all proceedings in which a party asserts the existence of a civil right conferred by the civil law or by statute, and claims relief for breach thereof. A HC-NIC Page 6 of 46 Created On Tue Dec 01 01:12:36 IST 2015 criminal proceeding on the other hand is ordinarily one in which if carried to its conclusion it may result in the imposition of sentences such as death, imprisonment, fine or forfeiture of property. It also includes proceedings in which in the larger interest of the State, orders to prevent apprehended breach of the peace, orders to bind down persons who are danger to the maintenance of peace and order, or orders aimed at preventing vagrancy are contemplated to be passed. But the whole area of proceedings, which reach the High Courts as civil and criminal. . . . . ”
The Supreme Court further observed in the said report as under :-

“. . . . .The character of the proceedings, in our judgment, depends not upon the nature of the Tribunal which is invested with authority to grant relief, but upon the nature of the right violated and the appropriate relief which may be claimed. A civil proceeding is, therefore, one in which a person seeks to enforce by appropriate relief the alleged infringement of his civil rights against another person or the State, and which if the claim is proved would result in the declaration – express or implied of the right claimed and relief such as payment of debt, damages, compensation, delivery of specific property, enforcement of personal rights, determination of status etc.”
9. The Supreme Court, in the case of Somabhai Mathurbhai Patel vs. New Shorrock Mills, 1983 GLH 273, has taken the following view;

While we are not inclined to grant special leave at this stage, we, however, record our disapproval of the way in which the learned Single Judge has dealt with the judgment of Hon. M. C. Trivedi, J which dealt with the identical point and which judgment was binding on the learned Judge. It is not open to a learned Single Judge to reject the ratio of the decision of another learned Single Judge of the same High Court by merely saying that attention of M. C. Trivedi J. was not invited to the decision of Supreme Court which may have an impact on the point under examination. Judicial comity demands and this Court has often reiterated that in that event the matter should be referred to a larger HC-NIC Page 7 of 46 Created On Tue Dec 01 01:12:36 IST 2015 Bench. But in this case, learned Judge has observed that he is unable to agree with the view taken by M. C. Trivedi, J. because in his view the question was directly covered by an earlier decision of this Court, That aspect of the matter itself needs examination. Therefore, if the matter at any stage goes back to the High Court and the same question is raised in the interest of justice it should be heard by a Division Bench. Mr. Kaji, learned Advocate for the petitioner made another grievance that the relief was granted in the absence of a pleading in the plaint on the question of tenancy as covered by Section 13(1)(f) of the Bombay Rent Act as applicable in Gujarat. Mr. Arun Mehta, learned Advocate for respondent appearing on caveat conceded that as the matter be remanded to the District Judge, Nadiad, plaintiff will seek permission for appropriate amendment of the plaint. If such an application is made, learned Judge may deal with it according to law and it should not be understood that this Court has directed such an amendment being made.