Whether High Court can invoke its extraordinary jurisdiction under article 226 if article 227 is, otherwise, not attracted
If therefore, a subordinate court or tribunal does not have a particular power and refuses, therefore, to pass on order, such an order cannot be interfered with by invoking article 227. Though such an order if otherwise unjust, may be interfered with, in an appropriate case, by the High Court under article 226.
Application of Article 226 in place Article 227
228. Coupled with the above, since the present appellant’s application was made under articles 226 and also 227, and, as we have already indicated above article 227 was not attracted, as against that part of the order, whereby the learned trial court had declined to direct further investigation at the instance of the present appellant, there was no impediment, on the part of the learned Single Judge, to exercise the High Court’s extraordinary jurisdiction under article 226 of the constitution of india even on the writ application made by the present appellant. What we would like to clarify is that the learned trial court having no power to direct further investigation, at the instance of the present appellant, could not have directed the police to direct further investigation on the prayer made by the present appellant. This did not, however, in any manner disable or dis-empower the High Court from invoking its extraordinary jurisdiction under article 226 and direct further investigation inasmuch as the materials surfacing on record did call for exercise of such jurisdiction.
229. One cannot lose sight of the fact that the cause title, in a writ petition, is merely a matter of formality and not substance. It is not the prayer alone, which is determinative of the nature of jurisdiction, which is exercisable in a given case. When a writ application is made by mentioning both the articles, namely, articles 226 and 227, it is really for the court to determine if the facts of the case, as presented before it, warrant exercise of power under articles 226 or 227 or does not attract jurisdiction under any of the said two articles. Though, for right reasons, the learned trial court had no power to direct ‘further investigation’ or re-investigation on the prayer made by the son of the deceased couple, and in such circumstances, the learned Single Judge could not have interfered with the rejection of the present appellant’s application by invoking article 227, the fact remains that the writ application, made by the appellant, clearly brought on record that there were grievances, which the writ petitioner had and these grievances warranted ‘further investigation’. Since the learned trial court had no power, in the light of Randhir Singh Rana (supra), to direct ‘further investigation’, there was no impediment, on the part of the High Court, to invoke its jurisdiction under article 226 and pass appropriate direction for ‘further investigation’. The learned Single Judge, thus, failed to exercise the jurisdiction under article 226, which ought to have been exercised in the facts and circumstances of the present case.
230. The Supreme Court has made it clear, in MMTC Ltd. v. CCT, (2009) 1 SCC 8, that when the cause title of an application mentions both article 226 as well as article 227, a Single Judge is required to determine, according to the facts of each particular case, whether the application ought to be dealt with under article 226 or under article 227. Had the learned Single Judge exercised power under article 227, the present letter patent appeal would not have been available. When an application is made under article 226 as well as article 227, the appellate court may consider whether the facts alleged warranted filing of an application under article 226 or 227. [See MMTC Ltd. (supra)]
231. Necessary it is, therefore, that when an application made does not warrant exercise of power under article 227, the court has to nevertheless decide if article 226 is required to be invoked. In fact, in the case of Umaji Keshao Meshram and Ors. v. Radhikabai and Anr., 1986 (Supp) SCC 401, the facts justified a party filing application under article 226 as well as 227. Dealing with such a fact situation, the Supreme Court took the view that the High Court, in order not to deprive the applicant of his valuable right to appeal, ought to treat the application under article 226.
232. What surfaces from the above discussion, held as a whole, may be summed up as under:
Scope of article 226 vis-a-vis article 227
233. The power of superintendence under article 227, though wide, is supervisory in nature. The power under article 227 cannot, therefore, be exercised to interfere with an order if the order, made by a subordinate court or tribunal, is within the bounds of, or in conformity with, law. What is, however, extremely important to note is that while exercising supervisory jurisdiction under article 227, the High Court not only acts as a court of law, but also as a court of equity.
234. It is, therefore, not only the power, but also the duty of the court to ensure that the power of superintendence is exercised in order to advance the cause of justice and uproot injustice. This power cannot, however, be exercised to interfere with an order of a subordinate court or tribunal if the order, made by the subordinate court or the tribunal, is, otherwise, within the bounds of the law. If therefore, a subordinate court or tribunal does not have a particular power and refuses, therefore, to pass on order, such an order cannot be interfered with by invoking article 227. Though such an order if otherwise unjust, may be interfered with, in an appropriate case, by the High Court under article 226. [Ramesh Chandra Sankla and Others v. VikramCement and Others, (2008) 14 SCC 58]
235. Very wide powers have been given to the High Court under articles 226 and 227 to advance the cause of justice and it is, therefore, within the Constitutional power of the High Court to ensure that no man is subjected to injustice by violation of law. If, therefore, an investigation is manipulated and/or unfair, there would be no impediment, on the part of the High Court, to invoke, in an appropriate case, its extraordinary jurisdiction, under article 226, at the instance of the informant, de facto complainant, aggrieved person or the victim. [See Ramesh Chandra Sankla (supra)].
236. It is extremely important to bear in mind that sub-section (8) of section 173confers power on the police to conduct ‘further investigation’ and it is by judicial decisions that the police is required to, ordinarily, seek formal permission from the court before it conducts ‘further investigation’. Conducting of ‘further investigation’ without formal permission from the court cannot, in itself, be sufficient to interfere with ‘further investigation’. This power of ‘further investigation’ can be exercised at any stage of trial. Since the power of ‘further investigation’ can be exercised at any stage of trial, it logically follows that even a Session Judge, while trying a case, may permit ‘further investigation’ if the facts of the case so warrant and the investigation agency seeks permission for ‘further investigation’.
237. Petitions are filed, now a days, both under articles 226 and 227 of the constitution of india. When the facts of a given case justify filing of an application either under articles 226 or 227 and the party chooses to file the application under both the articles, the High Court shall exercise its power under article 226 and not under article 227 so as not to deny the right of appeal to the person, whose interest may be affect by such an order. [See Umaji Keshao Meshram (supra)]. The decision, in Umaji Keshao Meshram (supra), has been referred to, and relied upon, in Sushilabai Laxminarayan Mudliyar and Others v. Nihalchand Waghajibhai Shaha and Others,1993 Supp (1) SCC 11 ]. The relevant observations, appearing in this regard at para 4 of Sushilabai Laxminarayan Mudliyar (supra), read as under:
“4. The Full Bench of the Bombay High Court wrongly understood the above Umaji Kesho Meshram case. In Umaji case it was clearly held that where the facts justify a party in filing an application either under article 226 or 227 of the constitution of india and the party chooses to file his application under both these articles in fairness of justice to party and in order not to deprive him of valuable 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. rule 18 of the bombay high court appellate side rules read with clause 15 of the Letters Patent provides for appeal to the Division Bench of the High Court from a judgment of the learned Single Judge passed on a writ petition under article 226 of the constitution. In the present case the Division Bench was clearly wrong in holding that the appeal was not maintainable against the order of the learned Single Judge. In these circumstances we set aside the impugned order of the Division Bench and direct that the Letters Patent Appeal filed against the judgment of the learned Single Judge would now be heard and decided on merits. In view of the fact that it is an old matter we request the High Court to decide the Letters Patent Appeal within six months. It is further directed that till the final disposal of the Letters Patent Appeal the operation of the order of the Single Judge shall remain stayed. The appeals are allowed in part with no order as to costs.”
(emphasis added)
238. While considering the case of Umaji Keshao Meshram (supra), it may, however, be borne in mind that Umaji Keshao Meshram’s case relates to jurisdiction of Bombay High Court under articles 226 and 227, which was a Chartered High Court and was governed by clause 15 of the Letters Patent. In the case of Gauhati High Court, it is debatable, in the light of the decisions, in Her Majesty the Queen v. Burah, (1877-78) 5 IA 178, Howrah Insurance Co. Ltd. v. Sochindra Mohan Das Gupta, (1975) 2 SCC 523, M.V. Elisabeth v. Hawran Investment and Trading (P.) Ltd., 1993 Supp (2) SCC 433, P.V. Hemlatha v. Kattamkandi Puthiya Maliackal Saheeda, (2002) 5 SCC 548, and Umaji Keshao Meshram (supra), whether the power, under clause 15 of the Letters Patent, is available to the Gauhati High Court. Perhaps, realizing that Letters Patent is not available to Gauhati High Court, the Rules, made in exercise of this High Court’s power under article 225 of the constitution of india read with article 6 of the Assam High Court Order, 1958, provide for intra-court appeal against an order passed by a Single Judge in exercise of power under article 226; whereas, no such provision for infra-court appeal has been provided to an order passed by a Single Judge in exercise of power under article 227. At any rate, when the question has not arisen for determination, in this appeal, as to how an infra-court appeal is maintainable against an order passed by a Single Judge, either in exercise of power under article 226 or refusing to exercise power under article 226, we, though take note of the position of law governing infra-court appeals in writ jurisdiction of this court, leave the question to be answered on some other appropriate occasion. As tar as the present appeal is concerned, suffice it to point out that if the writ petition, mode by the present appellant, wanted exercise of power under article 226 and the learned Single Judge has not exercised the power, this writ appeal is maintainable and appropriate order, in exercise of power under article 226, can be passed in this appeal, particularly, in a case arising out of the State of Tripura.
239. In the case of Pepsi Foods Ltd. (supra), too, the Supreme Court has made it clear that “……….nomenclature under which petition is filed is not quite relevant and that does not debar the court from exercising its jurisdiction, which, otherwise, it possesses unless there is special procedure prescribed, which procedure is mandatory.
240. If a judgment under appeal falls squarely within the four corners of article 227, an ‘infra-court’ appeal from such a judgment would not, under the rules of the High Court, be maintainable. If, on the other hand, the petitioner, has invoked the jurisdiction of the High Court for issuing a writ under article 226, although article 227 too is mentioned, and, principally, the judgment, appealed against, falls under article 226, the appeal would be maintainable. What is important to be ascertained is the true nature of the order and not what provisions have been mentioned, while passing the order by a learned Single Judge. [See Ashok K. Jha and Others v. Garden Silk Mills Limited and Another, (2009) 10 SCC 584]. This apart, what must also be borne in mind is that exercise of power, under article 226 or even under article 227, depends upon what facts have been brought on record or what has surfaced on record. It the facts, emerging, therefore, on record, warrant or justify invoking of jurisdiction under articles 226 or 227, the court must exercise its appropriate jurisdiction and not deny to a person the relief, which he is, otherwise, entitled to receive, merely on the ground that the relief, which the person is entitled to receive, has not been sought for or correct constitutional provisions have not been mentioned in the application.
241. In fact, in Ramesh Chandra Sankla (supra), it has been held that a statement, made by a learned Single Judge, that he has exercised power under article 227, cannot take away the right of appeal against such an order if the power is, otherwise, found to have been exercised under, or traceable to, article 226. The vital factor for determination of maintainability of an ‘intra-court’ appeal, arising out of a writ proceeding, is the nature of jurisdiction invoked by the party, the true nature of order passed by a Single Judge and the nature of relief, which a party may be entitled to.
242. In view of the fact that in the case at hand, the learned Single Judge had, as discussed above, the power, under article 226, to direct ‘further investigation’ and, as we are also of the view that in the facts and attending circumstances of the present case, the power, under article 226, ought to have been invoked in order to direct ‘further investigation’ so that a fair trial can take place, the present one is a case, where there is an omission to exercise jurisdiction under article 226, though exercise of such a jurisdiction was warranted. In such circumstances, there can be no escape from the conclusion that this ‘infra-court’ appeal must give to the appellant the relief, which this court is, even now, capable of granting and which relief the learned Single Judge ought to have granted, by invoking the power under article 226, so that a fair investigation is conducted, a fair trial can take place and justice is not done, but must appears to have been done.
243. In fact, it is clear, from the decision in Farook Mohammed Kasim Mapkar (supra), that in exercise of its power under article 226, the High Court can direct investigation by even CBI if such a direction is warranted in the facts of a given case.
244. It has been submitted by Mr. Bhowmik, learned counsel for the accused-respondent, that article 227 is not exercised in original jurisdiction, whereas article 226 is exercised in original jurisdiction. In the case at hand, according to Mr. Bhowmik, as the appellant had filed the writ petition against a judicial order, the writ application was rightly treated as an application under article 227 and the original jurisdiction, under article 226, could not have been invoked inasmuch as the appellant’s writ application sought relief from the High Court by invoking its supervisory jurisdiction under article 227 against a judicial order. In other words, what Mr. Bhowmik contends is that when a writ application is made, challenging the legality of a judicial order, the writ petition must, invariably, be treated as a writ application under article 227 and article 226 would not be attracted inasmuch as the original proceeding, in such a case, was the proceeding, where the judicial order is made. Suffice it to point out, with regard to the above, that even if an application is made under article 227 and the High Court finds that in the given set of facts and circumstances of a case. Article 227 is not appropriate constitutional provisions, but it is the article 226, which needs to be invoked, there is, as already indicated above, no constitutional or legal bar in the High Court invoking its extraordinary jurisdiction under article 226.
245. The jurisdiction under article 227 is neither original nor appellate; rather the jurisdiction is supervisory in nature, both administrative as well as judicial; whereas article 226 gives rise to an original jurisdiction. In the case at hand, the writ petition filed by the present appellant was not to invoke appellate jurisdiction; rather, it might have been to invoke High Court’s supervisory jurisdiction under article 227, but the mere fact that the appellant had sought to invoke article 227 could not have been a ground to deny to him the benefit of article 226 if the facts of the case had so warranted, particularly, when the writ application clearly mentioned not merely article 227, but also article 226, whereunder the said writ petition had been made.
246. Merely, therefore, on the ground that the present appellant had filed a writ petition against a judicial order, it cannot be held that the High Court could have exercised its power only under article 227 and, in no circumstances, the learned Single Judge could have invoked jurisdiction under article 226 and/or that this court cannot, now, invoke its extraordinary jurisdiction, under article 226, even if the facts of the case, as we have elaborately discussed above, necessitate invoking of High Court’s extraordinary jurisdiction under article 226.
247. As a drowning man catches hold of a straw, it has been, lastly, submitted, on behalf of the accused-respondent, that in the statement of the appellant’s grand-mother, who had, allegedly, witnessed the occurrence, there is no mention of the names of the two witnesses, namely, Dayal Guha and Nimai Banik, as persons, who were present in the house of the deceased couple on the night of the occurrence. Suffice it to point out, in this regard, that it is precisely this omission, in the statement of the present appellant’s grand-mother (since deceased), which furnishes us one more ground to direct further investigation so that truth surfaces as to whether what is being asserted by the appellant and the said two witnesses claim, namely, that the said two persons were present at the house of the deceased couple, on the night of the occurrence, and had witnessed the occurrence, is or is not true and as to whether the Investigating Officer had, truthfully and honestly, not mentioned, in the statement of the appellant’s grand-mother, about the fact that Dayal Guha and Nimai Banik were present in her house, where the occurrence had taken place.
248. Yet another reason for not allowing the prayer for further investigation by the learned Single Judge is that the case has been pending for the last more than 20 years and the accused-respondent is presently in custody. Though delay in completion of trial is one of the factors, which is invariably required to be considered by the court in conducting a fair trial, the mere fact, that there would be delay in completing a trial it ‘further investigation’ or ‘re-investigation’ is directed, cannot be the sole consideration, because the ultimate object of any criminal trial is to arrive at the truth and to do justice. When, therefore, the facts and circumstances of a given case warrant ‘further investigation’ or ‘re-investigation’, the court shall not hesitate to direct such investigation merely because there is likely to be delay in either commencing the trial or in concluding the trial. A reference, in this regard, may be made to the case of Hasanbhai Valibhai Qureshi (supra), wherein, commenting on this aspect of law, the Supreme Court observed as under:
“11. Coming to the question whether a further investigation is warranted, the hands of the investigating agency or the court should not be tied down on the ground that further investigation may delay the trial, as the ultimate object is to arrive at the truth.”
249. In fact, even in the case of Omprakash Narang and Anr. v. State (Delhi Admn.), MANU/SC/0216/1979, the Supreme Court pointed out that when defective investigation comes to light during the course of trial, it may be cured by ‘further investigation’ if the circumstances so permit. The Supreme Court, in Omprakash Narang (supra), observed out that it would, ordinarily, be desirable that police inform the court and seek formal permission to make ‘further investigation’, when fresh facts come to light, instead of remaining silent over, the matter on the ground that there is likely to be delay in the trial, for, points out the Supreme Court, in Omprakash Narang (supra), an effective trial for real or actual offences is as relevant and necessary as an expeditious trial.
250. The mere fact, therefore, that there may be further delay in concluding the trial, should not stand on the way of ‘further investigation’ if ‘further investigation’ would help the court in arriving at the truth and in doing substantial and effective justice. The relevant observations, made, in this regard, in Omprakash Narang (supra), read:
“………[F]urther investigation is not altogether ruled out merely because cognizance has been taken by the court. When defective investigation comes to light during course of trial, it may be cured by further investigation, if circumstances so permitted. If would ordinarily be desirable and all the more so in this case, that police should inform the court and seek formal permission to make further investigation when fresh facts come to light instead of being silent over the matter keeping in view only the need for an early trial since an effective trial for real or actual offences found during course of proper investigation is as much relevant, desirable and necessary as an expeditious disposal of the matter by the courts. In view of the aforesaid position in law, if there is necessity for further investigation, the same can certainly be done as prescribed by law. The mere fact that there may be further delay in concluding the trial should not stand in the way of further investigation if that would help the court in arriving at the truth and do real and substantial as well as effective justice. We make it clear that we have not expressed any final opinion on the merits of the case.”
(emphasis added)
251. With regard to the question of delay, it appears to have completely escaped the attention of the learned Single Judge that the accused-respondent is himself responsible for causing the delay inasmuch as the trial commenced barely within a period of two years from the date of the occurrence, but it is due to the fact that the accused-respondent had absconded that the trial got delayed. The accused-respondent cannot be allowed to reap the benefit of his own wrong, when it is he [i.e., the accused-respondent), who has delayed the trial and not the prosecution.
252. As regards the observations made by the learned trial court that the present appellant was a mere witness and could not have, therefore, sought for any direction to the police to conduct further investigation, it needs to be carefully noted that as the learned trial court did not have the power to direct further investigation, at the instance of the present appellant, the High Court did not suffer from any such limitation if it was, otherwise, found necessary to direct further investigation in order to ensure a fair trial.
253. However, what is pertinent to note is that while considering an application made under section 482 of the code or under article 226, the High Court must be conscious of the fact that an informant may not be a victim. It does not, however, mean that he is not required to be given notice if final report is submitted by police. In the light of the decision in Bhagawant Singh (supra), the notice is required to be given, in such a case, even to the victim. Thus, the court has to determine the status of a person vis-a-vis crime and if a witness is an aggrieved person, his petition cannot be ignored merely on the ground that he is an informant and not a witness or he is the victim and not the informant. In the present case, the appellant is the son of the deceased couple and there is no reason for not treating him as an aggrieved person in the present case.
254. In the present case, the impugned order, passed by the learned trial court, to the extent that the same declined to direct ‘further investigation’ at the instance of the appellant being not an order of refusal to exercise jurisdiction where such jurisdiction existed in the learned trial court, the question of invoking article 227 did not arise. Nonetheless, as the materials on record warranted, in the light of the discussions held above, a direction for ‘further investigation’, the remedy was really available in the High Court invoking its extraordinary jurisdiction under article 226. Seen in this light, it becomes clear that though the writ petition, in the present case, stood styled as a writ petition made under article 226 as well as 227, the appellant’s remedy really lied in making either an application under section 482 of the code or under article 226. As the learned Single Judge has declined to exercise the power under section 482, this court can still treat the writ petition, which the appellant had filed, as an original application made under article 226 and as there has been refusal by the learned Single Judge to invoke the High Court’s extraordinary jurisdiction under article 226, though such exercise of jurisdiction was warranted, this appeal is wholly maintainable as on intra court appeal arising out of a writ application made under article 226 and there is no impediment, on the part of this court, now, to exercise, in the present appeal, its jurisdiction under article 226 in order to exclude all possibilities of justice being denied in consequence of unfair, motivated and manipulated investigation.
255. While considering the question as to whether this court can, now, exercise its extraordinary jurisdiction, under article 226, in order to direct further investigation, the fundamental difference between a criminal case vis-a-vis a civil case needs to be borne in mind.
256. A decree binds only the parties to the decree and their successors-in-interest; whereas a criminal case, particularly, a sessions case, under the scheme of the Code, is not a private dispute between two parties. The prosecution of the accused is on behalf of the society, especially, in a sessions trial.
257. No wonder, therefore, that even when a complaint is made alleging commission of an exclusively session triable case, the Magistrate is merely required to record statements of the complainant and his witnesses and such other witnesses as may be necessary and, then, commit the case for trial.
258. However, once the case stands committed to the court of Session for trial, the trial has to be conducted by the Public Prosecutor and not by the counsel engaged by the complainant. The responsibility of conducting trial, in a session case, cannot be waived, ignored or given up by the Public Prosecutor in favour of the complainant.
259. Naturally, therefore, when one of the parties, out of many others, comes to the High Court against a decree or order seeking interference by the High Court under articles 226 and 227, the court will examine the decree or the order vis-a-vis the person, who claims to be aggrieved by the decree or the order, as the case may be. If the decree or the order is found to be correct and tenable in law to the extent that the decree or the order, as the case may be, covers the party, who has approached the High Court, the High Court may not entertain the writ petition even if it finds that another part of the decree or the order is illegal if the illegal part of the order could not have been challenged by the party, who has come to the High Court, but could have been challenged only by the party, who has been adversely effected by such decree or order, but has opted not to come to the High Court and challenge that part of the order, which is untenable in law.
260. As against what has been pointed out above, a criminal case, being a case, wherein the State conducts the prosecution, an order has to be examined, as a whole, by the High Court under article 226 as well as 227. If a part of the order, which is under challenge, in a writ petition, made under article 226 and/or 227, is tenable in law, but another part of the order is not tenable in law, the High Court cannot refuse to undo the wrong, which has been done by that part of the order, which is not under challenge, merely because of the fact that the part of the order, which is illegal, has not been challenged by the person, who could have challenged the illegal part of the order.
261. To put it a little differently, while dealing with a criminal case, wherein the High Court’s jurisdiction under article 226 as well as 227 is sought to be invoked, the High Court has the responsibility of looking into the order from every angle and even if it finds that a part of the order, which is under challenge by the party approaching the High Court, is, tenable in law, but the other pan of the same order, which has been decided against another party, who has not approached the High Court, is illegal, the High Court has nevertheless the duty to interfere with that part of the order, which may not be under challenge if the order is against the law, because the High Court, while exercising its jurisdiction under article 226 as well as 227, examines an order, passed in a criminal case, not vis-a-vis the party, which has approached the High Court, but as a whole.
262. In the case at hand, we have already held, that no direction to conduct further investigation could have been given at the instance of the present appellant, because trial had already commenced. However, on the basis of the materials placed before the learned trial court, we have also pointed out above, that the learned trial court could not have declined to direct further investigation at the instance of the learned Additional Public Prosecutor. When the State chose not to come in revision or make an application under section 482 or not to file any writ petition either under articles 226 or 227 against that part of the order, whereby the learned trial court had declined to direct further investigation on the application made by the learned Additional Public Prosecutor, and the present appellant had not challenged that port of the order, which had been decided against the application seeking further investigation, which the learned Additional Public Prosecutor had filed, could the High Court remain a silent spectator if the refusal to pass an order for further investigation, at the instance of the learned Public Prosecutor, by the learned trial court, was untenable in law?
263. The answer to the question, posed above, has to be in the negative, because if the answer to this question is given in the affirmative, then, the whole concept and scheme of criminal trials would suffer a setback. The right of the victim to demand fair trial under article 21 and, consequently, fair investigation, is as much fundamental, in nature, as the right of the accused in this regard. The victim’s right to demand fair trial and, consequently, fair investigation, cannot be left at the mercy of the State and/or its agencies. The High Court, in such circumstances, could not have declined to direct a further investigation, when the facts of the case, otherwise, so warranted.
265. We have also pointed out above that the order of the learned trial court was, to the extent that the same concerned the appellant’s petition, was justified and the remedy of the appellant lied in making an application under section 482 or an application under article 226. Since the learned trial court’s order was correct, the appellant could not have sought to invoke High Court’s revisional jurisdiction or supervisory jurisdiction. The remedy lied, as already indicated hereinbefore, in making an application under section 482 or under article 226.
266. As the facts of the present case warranted a direction for further investigation, there was no limitation, on the part of the High Court, to exercise its power under article 226; rather, the fact situation of the present case, the High Court ought to have exercised its extraordinary jurisdiction under article 226 so that a fair investigation, which was required, takes place and a fair trial becomes possible. Since the learned Single Judge has omitted to exercise the jurisdiction under article 226, though such an exercise was warranted, this court, in this infra-court appeal, is wholly competent to direct, in exercise of the High Court’s extraordinary jurisdiction under article 226, further investigation.
267. Moreover, the State, having assumed the responsibility of conducting, the prosecution, ought to have come to the High Court by way of revision or an application under section 482 or by way of a writ petition either under articles 226 or 227. The State has, however, not done so. There was, thus, omission, on the part of the State, in conducting the prosecution in effective manner. In such circumstances, the High Court had ample power to undo the wrong by exercising its revisional as well as supervisory jurisdiction as against that part of the order, whereby the learned Additional Public Prosecutor’s application had been rejected. As the State had not come forward, the High Court could have, suo motu, exercised its revisional as well as supervisory jurisdiction. As the learned Single Judge has not done so, we cannot, now, in exercise of the High Court’s revisional or supervisory jurisdiction, interfere with that part of the order, whereby the learned trial court has declined to direct further investigation at the instance of the learned Additional Public Prosecutor.
268. There was and there is, however, no limitation, on the part of the High Court, to invoke its extraordinary jurisdiction under article 226, when the appellant, who stands in the position of a victim, has approached this court seeking to invoke its extraordinary jurisdiction under article 226, because it is this power, which is befittingly available to the High Court to undo the wrong and take the wholly indispensable step to direct further investigation in order to ensure that there is no miscarriage of justice and there is no denial of the victim’s right to demand a fair investigation, which is as much guaranteed under article 21 as in the case of an accused. [ RANA SINHA @ SUJIT SINHA V. STATE OF TRIPURA OTHERS 28 APR 2011 – GAUHATI HIGH COURT]
