1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR 1. D.B. Civil Special Appeal (Writ) No.155/2010 In S.B. Civil Writ Petition No.11394/2009 with D.B. Civil Misc. Stay Application No.297/2010 Sanjay Dixit vs. Prahlad Gurjar & Ors. 2.D.B. Civil Special Appeal (Writ) No.165/2010 In S.B. Civil Writ Petition No.11394/2009 with D.B. Civil Misc. Stay Application No.310/2010 Rajeet Singh vs. Prahlad Gurjar & Ors. Date of order :: 10.11.2010. HON'BLE THE ACTING CHIEF JUSTICE MR. ARUN MISHRA HON'BLE MR. JUSTICE MOHAMMAD RAFIQ Shri Alok Sharma with) Shri Ravi Bhojak) Shri A.K. Sharma ) for appellants. Shri Amit Agarwal for respondent no.1. Shri Praveen Poswal for respondent nos.3 & 4. Shri Tej Prakash Sharma for respondent no.6 *** These intra court appeals have been filed assailing the order passed by the Single Bench passed in S.B. Civil Writ Petition No.11394/09 on January, 13, 2010. Petitioner Prahlad Gurjar preferred writ petition praying for directions against respondent nos.1 to 3 to prosecute Ranjeet Singh u/s.12(1) and Sanjay Dixit u/s.12(2) of the Passport Act, 1967 (hereinafter referred to `the Act of 1967') or the petitioner may be permitted to prosecute the aforesaid persons u/s.15 of the Act of 1967. Alternative prayer was made that if permission of Chief Secretary of the State is necessary, it be obtained with respect to Sanjay 2 Dixit and Chief Secretary be directed to grant such permission to respondent nos.1 to 3. It was alleged that Ranjeet Singh applied for urgent passport to go abroad. He had obtained the verification certificate from Sanjay Dixit, IAS, the then Secretary of Department of Horticulture, State of Rajasthan. It was stated in that certificate that Ranjeet Singh bears a good moral character and reputation and recommendation was made to issue him passport. The certificate was given in format attached to the Passport Rules, 1980, on the basis of which passport could have been issued without police verification. On the basis of said certificate alone, respondent no.3 issued passport to Ranjeet Singh on 5.7.2007. The passport was obtained on the basis of false declaration and by suppressing material facts and Rajeet Singh tried to leave India so as to avoid many serious criminal cases pending against him. He was then arrested at the Indira Gandhi International Airport, New Delhi and taken into custody as there were several criminal cases pending against him and in other cases he had been convicted. Various criminal cases were referred in the writ-application. It was further submitted that petitioner approached the Ministry of External Affairs to take action against Ranjeet Singh and Sanjay Dixit, however, no action was taken. For obtaining the prosecution of the said 3 persons, hence he filed the writ-application. After obtaining information under Right to Information Act, petitioner submitted that respondents have failed to initiate the prosecution against such persons. Serious allegations were made against Ranjeet Singh and Sanjay Dixit. The respondent nos.1 to 3 contested the writ application. It was contended that it was necessary to implead Sanjay Dixit as party. The respondents had initiated action, as such, the writ application was not maintainable. The Single Bench after considering the material on record, which was filed against the appellants Ranjeet Singh and Sanjay Dixit has directed the CBI to register the case and to investigate it. Pursuant to the order passed by the Single Bench, CBI had registered a case and started investigation. However, before filing of the charge sheet, petition u/s.482 of Cr.P.C. has been preferred by the appellant Sanjay Dixit. In such petition, there was interim order of stay on filing of the charge sheet. Prayer has been made in the petition to quash the FIR. The petition u/s.482 Cr.P.C. is still pending. Aggrieved by the order, passed by the Single Bench in the writ-application, dated 13.1.2010, 4 directing the CBI to proceed in the matter, these intra court appeals have been preferred. Shri Alok Sharma and Shri A.K. Sharma, learned counsel appearing on behalf of appellants submitted that it was necessary to implead appellants Sanjay Dixit and Ranjeet Singh as respondents in the writ application preferred before the Single Bench as serious allegations were made against both of them. They have relied on the decision of Apex Court in Divine Retreat Centre vs. State of Kerala & Ors.-(2008) 3 SCC 542 and have prayed that the impugned order has been passed without providing them opportunity to rebut the serious allegations made against them in the writ-application as to the criminal cases, antecedents and their conduct etc., consequently, the impugned order be set aside. Shri Amit Agarwal,learned counsel appearing on behalf of respondent no.1 has submitted that as only investigation was sought in the matter, it was not necessary to implead the appellants as party in the writ-application. He has relied on the decision of Apex Court in Union of India & Anr. vs. W.N. Chadha-1993 Supp (4) SCC 260. He has further contended that this Court can grant opportunity of hearing in these intra court appeals. Investigation has already been made and charge sheet remains to be filed. Petition u/s.482 Cr.P.C. has been preferred, which is pending 5 consideration, as such, no case for interference in the intra court appeals is made out as in between, subsequent developments have been taken place in the instant case. Shri T.P. Sharma, learned counsel appearing for respondent no.6 and Shri Praveen Poswal, learned counsel appearing on behalf of respondent nos.3 and 4 have submitted that as per the direction issued by the Single Bench, investigation has been made, FIR has been registered and challan remains to be filed in the case after due investigation. After hearing the learned counsel for the parties and considering the serious kind of allegations made against the appellants, it was necessary, in our opinion, to implead them as party in the writ-petition and grant them opportunity of hearing. As against Ranjeet Singh, there were serious allegations made about his antecedents and conduct in obtaining the passport, which has been discussed elaborately in the order. There were several criminal cases which were pointed out against Ranjeet Singh. It was alleged that he was a history sheeter and committed violation of various provisions of the Act of 1967. Conduct of Sanjay Dixit has also been adversely commented upon in the petition, which is the basis of the order. In all fairness, it was necessary for the petitioner to implead the 6 appellants as respondents and they should have been given opportunity of hearing before passing of the impugned order. Though Hon'ble Single Judge has asked the CBI to appraise itself of the allegations and to make investigation without any loss of time, however, the fact remains that such an order was required to be passed after giving due opportunity of hearing to the appellants, in case they were unable to rebut the allegations made against them by the petitioner in the petition. There are certain observations which have been made on due consideration of the facts and material on record in paragraph 11 and other paragraphs of the impugned order. In our opinion, it was necessary to grant opportunity of hearing to the appellants. The Apex Court in Divine Retreat Centre (supra) has laid down the order directing the investigation on the basis of certain allegations without impleading concerned person as party to writ petition as violative of principles of natural justice. The Apex Court also considered the aspect whether accused gets a right of hearing only after submission of the charge-sheet, before a charge is framed or the accused is discharged vide Sections 227, 228, 239 and 240 Cr.P.C. The Apex Court observed that High Court could not have passed a judicial order directing investigation against the appellant and his activities without 7 providing an opportunity of being heard to him. When criminal law is directed to be set in motion on the basis of the allegations made in anonymous petition filed in the High Court, no judicial order can ever be passed by any court without providing a reasonable opportunity of being heard. The Apex Court has laid down thus: “51. The order directing the investigation on the basis of such vague and indefinite allegations undoubtedly is in the teeth of principles of natural justice. It was, however, submitted that the accused gets a right of hearing only after submission of the charge-sheet, before a charge is framed or the accused is discharged vide Sections 227 & 228 and 239 and 240 Cr.P.C. The appellant is not an accused and, therefore, it was not entitled for any notice from the High Court before passing of the impugned order. We are concerned with the question as to whether the High Court could have passed a judicial order directing investigation against the appellant and its activities without providing an opportunity of being heard to it. The case on hand is a case where the criminal law is directed to be set in motion on the basis of the allegations made in anonymous petition filed in the High Court. No judicial order can ever be passed by any court without providing a reasonable opportunity of being heard to the person likely to be affected by such order and particularly when such order results in drastic consequences of affecting one's own reputation. In our view, the impugned order of the High Court directing enquiry and investigation into allegations in respect of which not even any complaint/information has been lodged with the police is violative of principles of natural justice. 52. It is unnecessary to go into the question as to whether Divine Retreat Centre is not a “person” contemplated by Article 21 of the Constitution and express any opinion as to whether any right guaranteed by Article 21 of the Constitution has been infringed. Suffice it to note that, the Director of the appellant institution has been impleaded as a party respondent in the criminal petition and the whole of the allegations in the anonymous petition are leveled against the appellant and in such a situation it was imperative for the High Court to put the appellant on notice before passing the impugned order. 8 53. The appellant undoubtedly is aggrieved by the impugned order and, therefore, entitled to invoke the jurisdiction of this Court under Article 136 of the Constitution of India. The decisions in Janata Dal Vs. H.S. Chowdhary (supra) and Union of India & Anr. Vs.W.N. Chadha laying down the law that hearing to the accused is provided by the Code under specified circumstances are not relevant to decide the issue of locus in cases where challenge is to a judicial order under which institutions and/or persons connected therewith are subjected to inquiry and investigation. 54. Here is a case where no information has been given to the police by any informant alleging commission of any cognizable offence by the appellant and the persons associated with the appellant institution. It is a peculiar case of its own kind where an anonymous petition is sent directly in the name of a learned judge of the Kerala High Court, which was suo motu taken up as a proceeding under Section 482 of the Code. The High Court ought not to have entertained such a petition for taking the same on file under Section 482 of the Code. 55. It was contended that nomenclature of the petition is not decisive. The High Court can exercise power suo motu either under Article 226 or under Section 482 Cr.P.C. or under both. It was submitted that if for any reason the petition entertained by the High Court is held not maintainable under Section 482 of the Code, the same can always be treated as the one filed under Article 226 of the Constitution of India. Reliance was placed upon the observations made by this Court in Pepsi Foods Ltd. Vs. Special Judicial Magistrate (supra). The decision in Pepsi Foods (supra) is an authority for the proposition 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. This Court took the view that if the court finds that the appellant could not invoke its jurisdiction under Article 226, the court can certainly treat the petition as one under Article 227 or Section 482 of the Code. The observations were made in the context of correcting grave errors that might be committed by the subordinate courts. The decision does not lay down any law that the High Court in exercise of its power under Section 482 of the Code or Article 227 may be resorted to constitute any special Investigating Agency to investigate 9 into allegations made for the first time in an anonymous petition. 56. In our view, the whole of public law remedies available under Article 226 of the Constitution of India and the constituent power to issue writs in the nature of mandamus, certiorari, prohibition and quo warranto are neither echoed nor transplanted into Section 482. May be both the powers to issue writs and pass appropriate orders under Section 482 of the Code are conferred upon the High Court but they undoubtedly operate in different fields.” Shri Amit Agarwal, learned counsel for the respondent no.1 with ingenuity at his command has tried to persuade us to affirm the order, relying on the decision of Apex Court in Union of India & Anr. vs. W.N. Chadha, (supra). The Apex Court in the aforesaid decision has laid down that when Investigating Officer is not deciding any matter except collecting the materials for ascertaining whether a prima facie case is made out or not and a full enquiry in case of filing a report under Section 173(2) follows in a trial before the Court or Tribunal pursuant to the filing of the report, it cannot be said that at that stage rule of audi alteram partem superimposes an obligation to issue a prior notice and hear the accused which the statute does not expressly recognise. The said decision has been considered in Divine Retreat Centre, (supra) and is distinguishable as it is based on the provisions of Section 173(2) of Cr.P.C. This aspect has also been considered by the Apex Court 10 in the aforesaid dictum of Divine Retreat Centre (supra). Counsel for respondent no.1 has also relied on decision of Calcutta High Court in Ashok Kumar Todi vs. Kishwar Jahan & Ors. decided on 18.5.2010 to argue that in this intra court appeal, opportunity can be granted for filing of return to the appellants and matter may be decided here afresh. We are not inclined to adopt this recourse though, it may be permissible in the peculiar facts of this case. As the petition u/s.482 Cr.P.C. is pending before the Single Judge and there is interim order of stay on filing of charge sheet, it is considered appropriate in the facts and circumstances of the case that these matters be heard and decided together by Single Bench. We direct hearing of both the matters together by the Single Bench. Return be filed by the appellants before the Single Bench within three weeks from today. The appellants shall stand impleaded as respondents to the petition. The impugned order dated 13.1.2010 is set aside. It is made clear that we have not expressed any opinion on the merits of the case and regarding the investigation which has been made as it is subject matter of petition filed u/s.482 Cr.P.C. We also make it clear that due to setting aside of the order passed by the Single Bench, the FIR which has been registered, shall not be deemed to have 11 been quashed automatically as it is subject matter of the petition filed u/s.482 Cr.P.C. and would be dependent upon the outcome of these matters, which are to be heard together. With the above observations, both the appeals as well as stay applications stand disposed of. (MOHAMMAD RAFIQ), J. (ARUN MISHRA),ACTING CJ. RS/-