RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 216 of 2009 Upendra Singh Maniyari ……… Appellant Versus Jagmohan Singh and others ……… Respondents Coram:- HON’BLE J.S. KHEHAR, CHIEF JUSTICE HON’BLE B.C. KANDPAL, JUDGE Present: Mr. U.K. Uniyal, Senior Advocate with Mr. Sandeep Kothari Advocate for the appellant. Mr. Rakesh Thapliyal, Advocate for respondent No.1. Mr. L.P. Naithani, the then Advocate General with Mr. P.C. Bisht, Advocate for the State. Date of Decision : 19th February, 2010. J.S. Khehar, C.J. Jagmohan Singh filed Criminal Writ Petition No.898 of 2009 under Article 226 of the Constitution of India, wherein he sought a writ in the nature of certiorari, for quashing a first information report dated 15.09.2009, lodged by Upendra Singh Maniyari, on the alleged commission of the offence of abetment to suicide, under Section 306 of the Indian Penal Code. The aforesaid first information report was registered as Crime Case No. 97 of 2009 at Police Station Basant Vihar in District Dehradun. 2. In Criminal Writ Petition No. 898 of 2009 it was alleged by the aforesaid Jagmohan Singh alias Raj, that his marriage was settled with Sweta alias Ritu, sister of the aforesaid Upendra Singh Maniyari. The engagement ceremony between Jagmohan Singh and Sweta alias Ritu was held on 14.01.2009, whereafter, the parties agreed, that the marriage ceremony would be held on 28.09.2009. On 13/14.09.2009 Sweta alias Ritu consumed poison. She died on 14.09.2009. On 15.09.2009 Upendra Singh Maniyari, the brother of the deceased, lodged the aforesaid first information report alleging that his sister Sweta 2 alias Ritu had committed suicide due to demand of dowry, by Jagmohan Singh alias Raj. 3. A learned Single Judge, after examining the contents of the first information report as also the SMS (short message service) addressed by Jagmohan Singh alias Raj to Sweta alias Ritu, dated 13.09.2009, arrived at the conclusion that no offence under Section 306 of the IPC was made out. Accordingly, the learned Single Judge, while allowing the writ petition on 18.11.2009 quashed the first information report dated 15.09.2009 lodged by Upendra Singh Maniyari. 4. Through the instant “Special Appeal”, Upendra Singh Maniyari, the brother of the deceased Sweta alias Ritu, has assailed the order passed by the learned Single Judge dated 18.11.2009, allowing Criminal Writ Petition No.898 of 2009. 5. Before we could proceed with the determination of the controversy on merits, we were confronted with the issue of maintainability of the instant “Special Appeal”. Learned counsel for respondent No.1 (Jagmohan Singh alias Raj), invited our attention to Rule 5 contained in Section C of Chapter VIII of the Rules of the Court, 1952 (which provides for an intra court appeal) and submitted, that the impugned order dated 18.11.2009, having been rendered by the learned Single Judge in exercise of “criminal jurisdiction” vested in him, was not appealable by way of a “Special Appeal”, to this Court. 6. The same objection, as has been noticed in the foregoing paragraph, has also been raised in Special Appeal No. 220 of 2009 (Rajesh Dube versus State of Uttarakhand and others) and Special Appeal No. 225 of 2009 (Dinesh Lal Verma versus State of Uttarakhand and others). For adjudication on the issue of maintainability, all the aforementioned Special Appeal’s are being taken up togetherr. With the consent of learned counsel representing the rival parties, Special Appeal No.216 of 2009 shall be treated as the lead case. 7. Keeping in view the importance of the issue involved Shri L.P. Naithani, the then Advocate General, Uttarakhand was also requested to assist the Court. 3 8. It is by now well settled, that no remedy (whether of appeal, revision or review) is available, unless it has been specifically provided for. Only a court of competent jurisdiction, duly vested with express or implied power, can adjudicate on a matter. It is definitely not within the purview of a court on its judicial side, to vest itself, or any court subordinate to it, with any such authority. In so far as the instant issue is concerned, reference can be made to the decision rendered in A.R. Antulay versus R.S. Nayak and another, (1988) 2 SCC 602, (Criminal Appeal No. 468 of 1986, decided on 29.04.1988), wherein it was observed as under:- “The creation of a right to an appeal is an act which requires legislative authority, neither an inferior court nor the superior Court nor both combined can create such a right, it being one of limitation and extension of jurisdiction”. On the same analogy, but in a different context, in Hari Singh Mann versus Harbhajan Singh Bajwa and others, (2001) 1 SCC 169, it was observed as under:- “There is no provision in the Code of Criminal Procedure authorising the High Court to review its judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Criminal Procedure Code. Section 362 of the Criminal Procedure Code has extended the bar of review, not only to the judgment, but also to the final orders other than the judgment. Section 362 is based on an acknowledged principle of law that once a matter is finally disposed of by a court, the said court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain a fresh prayer for the same relief unless the former order of final disposal is set aside by a court of competent jurisdiction in a manner prescribed by law. The court becomes functus officio the moment the official order disposing of a case is signed.” We can therefore, conveniently conclude by observing, that a remedy in law must be specifically provided for, and further that, a court in exercise of its judicial functions cannot suo motu provide for any remedy. 9. In so far as the controversy in hand is concerned, whilst it is the case of the appellants before us, that the remedy to file a “Special Appeal” is available to the appellants under Rule 5, contained in Part C, of Chapter VIII of the “Rules of the Court, 1952” as the impugned order passed by the learned Single Judge, is not excluded from the purview of the aforesaid rule; it is the contention of the 4 learned counsel for the respondents, that no such remedy is available, to the appellants as the impugned order had been passed by a learned Single Judge in exercise of “criminal jurisdiction” vested in him. Stated differently, the appellants before this court pleaded that the order sought to be impugned through the instant Special Appeal, had been passed by a learned Single Judge of this court in exercise of the “writ jurisdiction” under Article 226 of the Constitution of India, and not in exercise of “criminal jurisdiction”, and as such, the objection raised on behalf of the respondents is of no consequence. In order to repudiate the contention advanced by the learned counsel for the respondents, two submissions were advanced by the learned counsel for the appellants. Firstly, that “writ jurisdiction” exercised by this Court under Article 226 of the Constitution, is separate and distinct from “civil jurisdiction” or “criminal jurisdiction”, and as such, an order passed by the High Court in exercise of “writ jurisdiction” could not be considered as having been passed by it, either in exercise of “civil jurisdiction” or in exercise of “criminal jurisdiction”. And secondly, the meaning of the term “criminal jurisdiction” has to be ascertained from rules 10 and 11, contained in Section D, of Chapter VIII of the “Rules of the Court, 1952”. The impugned order, according to learned counsel, can not be treated as one, having been passed under either of the aforesaid provisions. As such, according to learned counsel, the objection raised by the respondents, to the maintainability of the instant “Special Appeal” is of no consequence. In view of the submissions advanced by the learned counsel for the rival parties, it is imperative for this Court, while adjudicating upon the present controversy, to determine, firstly, whether the impugned order passed by the learned Single Judge was rendered in exercise of “criminal jurisdiction” vested in this Court. In answering this question, it would also be essential for this court to determine, whether an order passed by a learned Single Judge in exercise of jurisdiction vested in the High Court under Article 226 of the Constitution of India, can be treated as having been passed by it in exercise of “criminal jurisdiction”. 10. Rule 5 contained in Section C, of Chapter VIII, of the “Rules of the Court, 1952” is being extracted hereunder:- “5. Special Appeal.- An appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of appellate jurisdiction) in respect of a decree or order made by a Court subject to 5 the Superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of superintendence or in the exercise of criminal jurisdiction (or in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award-(a) of a Tribunal, Court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution, or (b) of the Government or any Officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act of one Judge.” Since learned counsel for the appellants in order to support their assertions had also relied on Rules 10 & 11, contained in Section D, of Chapter VIII, of the “Rules of the Court, 1952”, the aforesaid two Rules are also being extracted hereunder:- “10. Ordinary original criminal jurisdiction.- The Court shall have ordinary original criminal jurisdiction in respect of all persons within its territorial jurisdiction and shall in the exercise of such jurisdiction, be empowered to try all persons brought before it in due course of law. 11. Extraordinary original criminal jurisdiction.- The Court shall have extraordinary original criminal jurisdiction over all persons residing in places within the jurisdiction of any Court subject to its superintendence and shall have authority to try at its discretion any such persons brought before it on charge preferred by any Magistrate or other officer specially empowered by the Government in that behalf.” 11. According to the learned counsel for the appellants, there can be no dispute that Rule 10, extracted herein above, could not be deemed to have been invoked by this Court when it passed the impugned order disposing of Criminal Writ Petition No.898 of 2009, inasmuch as, the said Rule requires, that in exercise of “ordinary criminal original jurisdiction”, this court would have the authority to try “. . . all persons brought before it in due course of law.” Since no one was brought before the learned Single Judge, to face trial, it is submitted on behalf of the appellants, that Rule 10, contained in Section D, of Chapter VIII, of the “Rules of the Court, 1952” had most definitely not been invoked, by the learned Single Judge, while passing the impugned order dated 18.11.2009. 6 12. In our considered view also there is hardly any basis to contest, the submission advanced by the learned counsel for the appellants, as has been noticed in the foregoing paragraph. In so far as the interpretation of Rule 10 is concerned, the language of the provision, does not leave any room for ambiguity. The Rule extends the “ordinary original criminal jurisdiction” vested in the High Court, to all persons who are located within the territorial jurisdiction of the High Court ; the Rule further mandates, that the High Court in the exercise of its jurisdiction would have the authority to try “. . . all persons brought before it in due course of law.” The latter part of Rule 10 relied upon by the appellants, and also referred to by us hereinabove, is sufficient to accept this submission advanced by the learned counsel for the appellants. In fact even the learned counsel for the respondents did not repudiate the instant submission advanced on behalf of the respondents. The submission advanced on behalf of the appellants (on the issue whether the impugned order passed by the learned Single Judge, had been passed under Rule 10 aforesaid) can be examined from another angle as well. Undisputedly the impugned order dated 18.11.2009, disposing of Criminal Writ Petition No.898 of 2009 had been passed in a case filed under Article 226 of the Constitution of India. When this court dispose of a controversy brought before it under Article 226 of the Constitution of India, it does so in exercise of the extraordinary jurisdiction vested in it. Since the impugned order had been passed by the learned Single Judge in exercise of “extraordinary” jurisdiction vested in him, as against “ordinary” jurisdiction contemplated under Rule 10 aforesaid, it can be safely concluded, that the impugned order dated 18.11.2009 had not been passed by the learned Single Judge of this court in furtherance of the jurisdiction vested in it under Rule 10, contained in Section D, of Chapter VIII of the “Rules of the Court, 1952. Accordingly, we have no difficulty, whatsoever, to hold that the impugned order in the present case could not be deemed to have been passed by this Court in exercise of jurisdiction vested in it under Rule 10, contained in Section D of Chapter VIII, of the “Rules of Court, 1952”. 13. The scope of the controversy, therefore, gets further narrowed. If the learned Single Judge, can be stated to have passed the impugned order, under Rule 11, contained in Section D, of Chapter VIII of the “Rules of the Court, 1952”, then and only then, the claim of the respondents can be 7 accepted. On the contrary, if the appellants can show and establish, that while passing the impugned order, the learned Single Judge did not even exercise the authority vested in him under Rule 11, contained in Section D, of Chapter VIII, of the “Rules of Court, 1952”, then the appellants will be able to succeed in asserting, that the impugned order which is subject matter of challenge in the present Special Appeal, is not one passed by this Court in exercise of its “criminal jurisdiction”. In that case, the sole basis canvassed at the hands of the respondents, to contest the maintainability of the instant “Special Appeal”, would stand repudiated. Accordingly, this Court will conclude, one way or the other, whether the “Special Appeal” filed by the appellants herein, is maintainable in law. 14. To understand the true effect of Rule 11, contained in Section D, of Chapter VIII, of the “Rules of the Court, 1952”, it is essential in the first instance to determine the true meaning of the words “extraordinary”, “original” and “criminal jurisdiction” used therein. It is only thereafter, that we shall be able to draw conclusions, on the submissions advanced by the learned counsel for the rival parties. We shall, therefore, venture to do so, before proceeding with the matter any further. 15. We may first commence by defining the term “original jurisdiction”. For the aforesaid purpose, reference may first be made to the decision in Ladli Parshad Jaiswal versus The Karnal Distillery Co., Ltd. Karnal and others (1963) 33 Comp Cas, 593, wherein the Apex Court observed as under:- “There is no warrant for making a distinction between an appeal filed against the judgment of a single Judge exercising original jurisdiction and a judgment in exercise of “appellate jurisdiction”. There is nothing in the context to support the plea that the expression “court immediately below” includes a Judge of the High Court trying a proceeding in exercise of original jurisdiction, i.e. sitting as a court of first instance, but not a Judge exercising appellate jurisdiction.” (emphasis is ours) The term court “original jurisdiction” also came up for consideration at the hands of the Apex Court in A. Rangaswamy Iyengar versus Pattammal (alias) Rajalakshmi Ammal and another, 1971 (1) Supreme Court Cases, 274, wherein the court has observed as under:- 8 “The expressions “a court immediately below” and “a court subordinate to the High Court” had different meanings and were, therefore, not one and the same. The test for determining whether an aggrieved party has a right to appeal, other conditions being fulfilled, is not whether the judgment is of a court subordinate to the High Court but whether the judgment is of a court immediately below and that a Single Judge of the High Court hearing a proceeding either as a court of original jurisdiction or in exercise of appellate jurisdiction is a court immediately below the Division Bench which hears an appeal against his judgment under the relevant clause of the Letters Patent.” (emphasis is ours) In both the cases noticed hereinabove i.e. in Ladli Parshad Jaiswal’s case (supra) and A. Rangaswamy Iyengar’s case (supra), the Apex Court divided the jurisdiction exercised by the High Court into two categories i.e. “appellate jurisdiction” and “original jurisdiction”. Where an issue is determined as a matter of appeal, the court would be exercising appellate jurisdiction, however, where the High Court is a court of first instance, i.e., the court in which proceedings have been initiated, the court would be exercising its “original jurisdiction”. The inference drawn by us hereinabove also finds support from the decision in Shah Babulal Khimji versus Jayaben D. Kania and another, (1981) 4 SCC 8, wherein the Apex Court projected its view in the following words:- “There is also no force in the contention that while Order 43 makes provision for appeal from one court to another, it is not intended to apply to an appeal from one Judge of the High Court to a Bench of the same Court. If Order 43 Rule 1 were to apply to orders passed by the Single Judge (Trial Judge), the order would be one passed by only one Judge of the High Court and, therefore, in the context of the original jurisdiction exercised by a Single Judge of the High Court, the appellate jurisdiction would lie with the Division Bench as contemplated by the Letters Patent and the Rules framed by the High Court.” (emphasis is ours) Although contextually different, yet the same conclusion emerges from the decision of the Supreme Court in Jagdish Singh versus Madhuri Devi (2008) 10 SCC 497, wherein the Court observed thus: “At the same time, however, the appellate court is expected, nay bound, to bear in mind the finding recorded by the trial court on oral evidence. It should not forget that the trial court had an advantage and opportunity of seeing the demeanour of witnesses and, hence, the trial court’s conclusions should not normally be disturbed. When the court of original jurisdiction has considered oral evidence and recorded findings after seeing the demeanour of witnesses and having 9 applied its mind, the appellate court is enjoined to keep that fact in mind.” (emphasis is ours) Accordingly, there can be no doubt that “original proceedings” and “original jurisdiction” has reference to the court, wherein the litigation originates. We, therefore, we have no hesitation in concluding that reference to “original jurisdiction” in Rule 11, contained in Section D, under Chapter VIII of the “Rules of Court, 1952” essentially means a proceeding, in respect of a controversy, which originates in the High Court itself. 16. The next step in the process of interpretation would be to ascertain the meaning and effect of the term, “criminal jurisdiction”. In this behalf the decision rendered by the Apex Court in M.S. Ahlawat versus State of Haryana and another, (2000) 1 SCC 278, may possibly bring to light the connotation of the term. In the aforestated case, during the course of proceedings before the Supreme Court, M.S. Ahlawat was proceeded against and punished, for the offence under Section 340 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.). Before doing so, the Apex Court had issued a notice to M.S. Ahlawat requiring him to show cause. Having received his response, an order was passed by the Court, holding him guilty of the offence under Section 340 of the Cr.P.C. The aforesaid order passed by the Supreme Court came to be assailed by M.S. Ahlawat. In the challenge raised by him, the Court held as under:- “The Supreme Court has always adopted the procedure prescribed by Section 195 CrPC whenever it is noticed that proceedings before it have been tampered with by production of forged or false documents or any statement has been found to be false. In the present case also the Supreme Court could not have assumed jurisdiction by issue of a notice proposing conviction for forgery and making false statements at different stages in the Court punishable under Section 193 IPC without following the procedure prescribed under Sections 195 and 340 CrPC. Primarily the Supreme Court does not exercise any original criminal jurisdiction in relation to offences arising under Section 193 IPC and secondly the seriousness of the charge arising under Section 193 IPC requires an elaborate inquiry and trial into the matter by the competent criminal court and a summary inquiry by mere issuing a show-cause notice and considering affidavits or inquiry reports would not tantamount to the procedure provided under the CrPC. The order made by the Supreme Court convicting the petitioner under Section 193 IPC is, therefore, one without jurisdiction and without following the due procedure prescribed under law. Though it is not clear from the impugned order whether the powers under 10 Article 142 of the Constitution were exercised to convict the petitioner under Section 193 IPC, one can presume that it is by exercise of that power that the impugned order had been made for there is no other provision enabling the passing of such an order.” In order to record a finding on the instant aspect of the matter, reference must also be made to the decision rendered in Savitri w/o Govind Singh Rawat versus Govind Singh Rawat, (1985) 4 Supreme Court Cases 337, wherein it was observed as under:- “The jurisdiction of a magistrate under Chapter IX of the Code is not strictly a criminal jurisdiction. While passing an order for maintenance under it, the magistrate does not impose any punishment on such person for a crime committed by him. It does not really create any serious new obligation unknown to Indian social life. It contains a summary remedy for securing some reasonable sum by way of maintenance, subject to a decree, if any, which may be made in a civil court in a given case provided the Personal Law applicable to the person concerned authorises the enforcement of any such right to maintenance.” (emphasis is ours) The same meaning was ascribed to the terms “criminal jurisdiction” (as in the extract reproduced above) in Bhimappa Basappa Bhu Sannavar versus Laxman Shivarayappa Samagouda and others, (1970) 1 Supreme Court Cases 665, where the Court held as under: “In criminal jurisdiction means ordinarily a proceeding for the prosecution of a person alleged to have committed an offence. . . . . . it must mean a proceeding which at the end results either in discharge, conviction, or acquittal of an accused person.” (emphasis is ours) It is, therefore, apparent that the exercise of “criminal jurisdiction” involves the adjudication of a matter pertaining to the commission of an offence, leading to the infliction of a punishment, in case the commission of the offence is established. For understanding the term “criminal jurisdiction” reference may also be made to the decision rendered by the Apex Court in Ram Chandra Aggarwal and another versus The