IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION ORIGINAL SIDE The Hon’ble JUSTICE SANJIB BANERJEE And The Hon’ble JUSTICE SIDDHARTHA CHATTOPADHYAY APO No.106 of 2017 With ACO No.158 of 2016 And ACO No.3 of 2017 In CP No.452 of 2013 LAXMI NARAYAN UDYOG LIMITED (IN LIQN) AND PANKAJ KUMAR AGARWAL -VERSUSOMENDRA KUMAR CHOWDHURY AND OTHERS For the Appellant: Mr Ratnanko Banerji, Sr Adv., Mr Reetobroto Kumar Mitra, Adv., Mr Sarosij Dasgupta, Adv., Mr Jayanta Samanta, Adv., Ms Sutapa Mitra, Adv. For the Respondents: Mr Mainak Bose, Adv., Mr Anurag Bagaria, Adv., Mr Aniruddha Poddar, Adv. For the Official Liquidator: Ms Ruma Sikdar, Adv. Hearing concluded on: July 18, 2017. Date: July 24, 2017. SANJIB BANERJEE, J.
: – The issue involved herein is simple, but the matter assumes a complex character in view of a seemingly well-settled order of a Division Bench of this court being found to have been rendered per incuriam by a subsequent Division Bench and the opinion of such subsequent Division Bench not being in consonance with a legal provision that it failed to notice. At any rate, the subsequent Division Bench’s view has been rendered bad law by a recent pronouncement of the Supreme Court.
2. The opinion rendered by the more recent Division Bench of this court is inconsistent with the views expressed on such aspect by several other High Courts, including Delhi and Gujarat, in respect of a Central statute. However, even such position elsewhere in the country may not have prompted this Division Bench to dislodge the point of law decided by the more recent of the two previous Division Bench judgments of this court and, had it not been for a Supreme Court judgment delivered in March of this year, the matter may have been referred to a larger bench despite the immediate previous Division Bench view on such aspect appearing, on the face of it, to be erroneous and unsustainable.
3. To linger a further while on the prelude, it must never be lost sight of that in our hierarchical system of the judiciary governed by the rule of law, judicial discipline is of greater importance than jurisprudential correctness. Certainty and finality are the hallmarks of a mature judicial system and, just as the principle of res judicata has more to do with finality and conclusivity than correctness, the doctrine of stare decisis commands that a settled position of law should scarcely be disturbed.
4. The issue as to the maintainability of an appeal from an order passed by a Single Bench of this court on a petition under Section 340 of the Code of Criminal Procedure, 1973 has been raised by the court. The respondents have gleefully supported such proposition and cited appropriate judgments in such regard.
5. Before referring to the contentions raised by the appellant or noticing the several judgments that the parties have brought to bear on the subject, the primary provisions need to be seen. Section 341 of the present Code of 1973 provides for appeals arising out of orders passed under Section 340 thereof. Since Section 341 of the Code of 1973 provides for the right of appeal against orders passed under Section 340 thereof other than by a High Court and the prevailing view in this court is that the right of an intra-court appeal in this High Court is found in Clause 15 of the Letters Patent, 1865, such appellate provisions are set out:
“341. Appeal. – (1) Any person on whose application any Court other than a High Court has refused to make a complaint under subsection (1) or sub-section (2) of section 340, or against whom such a complaint has been made by such Court, may appeal to the Court to which such former Court is subordinate within the meaning of subsection (4) of section 195, and the superior Court may thereupon, after notice to the parties concerned, direct the withdrawal of the complaint or, as the case may be, making of the complaint which such former Court might have made under section 340, and if it makes such complaint, the provisions of that section shall apply accordingly. (2) An order under this section, and subject to any such order, an order under section 340, shall be final, and shall not be subject to revision.”
. “Clause 15. Appeal from the Courts of original jurisdiction to the High Court in its appellate jurisdiction. – And We do further ordain, that an appeal shall lie to the said High Court of Judicature at Fort William in Bengal from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction and not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of s. 107 of the Government of India Act or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to sec. 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall lie to the High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to sec. 108 of the Government of India Act made on or after the first day of February One thousand nine hundred and twenty nine in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court where the Judge who passed the judgment declares that the case is a fit one for appeal, but that the right of appeal from the judgments of Judges of the said High Court or of such Division Court shall be to Us, Our heirs or successors in Our or Their Privy Council as hereinafter provided.”
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6. The appellant first contends that Section 341 of the Code of Criminal Procedure does not prohibit an intra-court appeal in any High Court, but merely does not make any provision therefor. In other words, the appellant asserts that if there is any provision other than Section 341 of the Code of Criminal Procedure which can be seen as a mandate for providing for an appeal in such a situation, Section 341 of the Code of Criminal Procedure would not affect the operation of such other appellate provision.
7. It is the further case of the appellant that when a civil court exercises the authority conferred on it by any provision of the Criminal Procedure Code, the status of the civil court is not altered to that of a criminal court; the civil court remains a civil court even while exercising a power vested in it by the Criminal Procedure Code and the regular provisions for appeal governing such civil court will hold the key as to whether an appeal will lie from an order passed by the civil court, albeit in the exercise of an authority conferred exclusively by the Code of Criminal Procedure. In furtherance of such argument, the appellant maintains that the character of a civil court is not metamorphosed merely by virtue of it exercising a jurisdiction conferred on it by the Criminal Procedure Code since the procedure for adjudicating the matter is the same as in the regular civil proceedings before such civil court.
8. The appellant first refers to a judgment reported at (2006) 3 CHN743(Subir Kumar Ghosh v. Prasar Bharati Broad Casting Corporation of India) and the categorical finding rendered therein that an appeal from an order passed by a Single Bench of this court on a petition under Section 340 of the Code of Criminal Procedure would lie under Clause 15 of the Letters Patent. The Division Bench noticed the earlier view of another bench of coordinate jurisdiction of this court reported at 81 CWN762(Pashupati Nath De v. Murari Mohan De) and observed as follows at paragraphs 8 to 10 of the report before proceeding to adjudicate on the merits of the appeal before it:
“8. It is true that a Division Bench of this Court in the case of Pashupati Nath De Vs. Murari Mohan (supra), came to the conclusion that section 341 of the Code of Criminal Procedure having prohibited filing of an appeal against an order passed under section 340 of the Code if such an order is passed by a Judge of the High Court, even a Letters Patent appeal before a Division Bench of this Court against such an order is not maintainable.
“9. We, however, find that the principle laid down in the aforesaid Division Bench decision is no longer a good law in view of the recent decision of a Bench of the Supreme Court consisting of five-Judges in the case of P.S. Sathappan vs. Andhra Bank Ltd., reported in AIR2004SC5152 where the majority of the Judges of the said Bench has held that in order to exclude the jurisdiction conferred by the Letters Patent to hear an appeal against an order of the learned Single Judge, specific provision must be appearing in the relevant statute explicitly excluding such jurisdiction. The Supreme Court in the said case approved the earlier decision of a Bench of two-Judges of the Supreme Court in the case of Vinita M. Khanolkar vs. Pragna M Pai, reported in 1998(1) SCC500 In the said case of Vinita M Khanolkar (supra), the question was whether a decree passed by a learned Judge in the Original Side of the Bombay High Court under section 6 of the Specific Relief Act could be challenged by preferring an appeal under Clause 15 of the Letters Patent before the Division Bench although, according to section 6 of the Specific Relief Act itself, such decree is not appealable. The Supreme Court in that case held that the Letters Patent being law for the time being in force, even if the provision in a particular statute debars further appeal from an order, such provision cannot take away the right of appeal under Clause 15 of the Letters Patent. The majority of the Larger Bench of the Supreme Court in the case of P.S Sathappan (supra), has reiterated the same view and has pointed out that in order to exclude the operation of Letters Patent appeal, there must be explicit bar and mentioned by way of illustration, the provision of section 100A of the Code of Civil Procedure where the right to prefer appeal under Clause 15 of the Letters Patent Act has been specifically taken away. In the Code of Criminal Procedure, there is no provision prohibiting the application of the Letters Patent in case of an appeal under section 341 and on the other hand section 5 thereof saves the special or local law for the time being in force or the special jurisdiction or power conferred by other law for the time being in force.
“10. In view of the aforesaid subsequent decision of the Supreme Court of a Larger Bench, we are of the view that the earlier Bench decision of this Court in the case of Pashupati Nath De vs. Murari Mohan (supra), is no longer a good law. The provisions of the Letters Patent must be held to be an existing special or local law within the meaning of section 5 of the Code of Criminal Procedure which pari materia with the provisions contained in section 4 of the Code of Civil Procedure and therefore, the principle laid down in those two Supreme Court decisions squarely apply to the facts of the present case. We, therefore, turn down the preliminary objection raised by Mr. Basu.”
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9. The next judgment brought by the appellant is reported at (2004) 11 SCC672(P. S. Sathappan v. Andhra Bank Limited) where the majority view of the Constitution Bench was that a Letters Patent appeal cannot be ousted by implication, but the right of an appeal thereunder may be taken away by an express provision in an appropriate legislation.
10. The issue that was before the Constitution Bench was whether a Letters Patent appeal was maintainable against an order passed by a single judge of the High Court sitting in the appellate jurisdiction. The question arose in the context of Section 104 of the Code of Civil Procedure, 1908. The majority opinion was that notwithstanding any anomalous situation that may be thrown up, since an appeal is a creature of a statute, when an appeal is provided for in some provision and the operation of such provision is not curbed by any other provision, the appeal has to be seen to be permissible. What is of importance is that the judgment considered the right of appeal under the Letters Patent in a civil matter.
11. Apropos the appellant’s contention that a civil court exercising authority under any provision of the Code of Criminal Procedure does not lose its character as a civil court, a Division Bench judgment reported at 85 CWN647(Sambhu Nath Sadhukhan v. Meghesh Kumar Sadhukhan) has been placed. In that case, an application under Section 476 of the Criminal Procedure Code, 1898 was dismissed for default. The question that arose was whether the application for restoration would be governed by the Code of Civil Procedure or the Code of Criminal Procedure. An ancillary question that came up was whether a revision against any order passed in such proceedings would lie under Section 115 of the Code of Civil Procedure or under Section 439 of the Code of Criminal Procedure. Such ancillary question was answered on the basis of a Full Bench judgment reported at 17 CWN647(Har Prasad Das v. Emperor) which laid down that in case of an order passed under Section 476 of the old Code of Criminal Procedure by a civil or a revenue court, Section 439 of the old Code of Criminal Procedure had no application as the civil or revenue courts were not inferior criminal courts and orders passed by such courts could only be revised by the High Court under Section 115 of the Code of Civil Procedure. On the principal question, the Division Bench opined that it would be the procedure under Order IX Rule 9 of the Code of Civil Procedure which would apply for the restoration of an application under Section 476 of the old Code of Criminal Procedure which was dismissed for default. In course of arriving at such conclusion, the Division Bench observed that merely because a civil court entertained a matter under the authority conferred on it by the Code of Criminal Procedure would not transform the character of the civil court to that of a criminal court.
12. The appellant next relies on a judgment reported at (1961) 1 SCR676(Narain Das v. State of Uttar Pradesh) where the issue of appellability pertaining to a matter under Section 476 of the old Code of Criminal Procedure fell for consideration. It must be noticed at this stage that though Section 340 of the present Code of Criminal Procedure reflects the essence of what was contained in Section 476 of the old Code of Criminal Procedure, the provisions are not identical. Further, Section 476B of the old Code of Criminal Procedure, which was brought in by an amendment of 1923, did not make a distinction between appeals arising out of orders passed on applications under Section 476 of the old Code of Criminal Procedure on the basis of whether such orders were passed by a High Court or any other court.
13. Coming back to the judgment in Narain Das, the appellant relies on the reference therein with approval to a previous judgment of the Supreme Court which held that an appeal under Section 476B lay to the Supreme Court from a decision of a Division Bench of a High Court in a matter pertaining to Section 476 of the old Code of Criminal Procedure. In Narain Das, an appeal was carried from a decision of a single judge of the Allahabad High Court refusing to file a complaint under Section 476 of the old Code of Criminal Procedure. The Supreme Court held that such appeal would not lie to the Supreme Court but it would lie within the High Court itself.
14. The last of the authorities carried by the appellant is a Division Bench judgment reported at AIR1918Cal 850 (Budhu Lal v. Chattu Gope). In that case a defendant applied before the Small Causes Court for sanction to prosecute the plaintiff, inter alia, for giving false evidence. A judge in the Small Causes Court refused the sanction. A further application was made to a Single Bench of this court, whereupon such Single Bench made an order that the matter should be further investigated by the judge of the Small Causes Court and that such judge should determine, upon the material placed before the court and having regard to the decision of the Single Bench of this court, whether or not sanction should be granted. An appeal was preferred by the plaintiff against such order of the Single Bench of this court to a Division Bench. The issue of appellability was raised more on the ground that the order under appeal against could not be regarded as a judgment within the meaning of Clause 15 of the Letters Patent. Both judges of the Division Bench were of the opinion that the order impugned in the appeal could not be described as a sentence passed or order made in any criminal trial and had to be regarded as an order under Section 195(6) of the old Code of Criminal Procedure. Section 195(6) of such Code provided that “Any sanction given or refused under this section may be revoked or granted by any authority to which the authority giving or refusing it is subordinate.”
. More importantly, in considering whether the order could be regarded as appellable under Clause 15 of the Letters Patent, the following extract from Clause 15 of the Letters Patent as it stood then was referred to: “… an appeal shall lie to the High Court from a judgment, not being a sentence or order passed or made in any criminal trial of one Judge of the said High Court.”
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15. The respondents submit that the question was decided by a Division Bench in 1977 and such was the position in this court till the view in Pashupati Nath De was upset in the 2006 judgment in Subir Kumar Ghosh. The appeal in Pashupati Nath De arose from an order passed by a Single Bench of this court on a petition under Section 476 of the old Code of Criminal Procedure. However, the matter appears to have been considered under the new Code of Criminal Procedure. Upon an objection as to the maintainability of the appeal being taken, the court noticed the difference between Section 476B of the old Code of Criminal Procedure and the comparable provision in Section 341 of the new Code of Criminal Procedure. The Division Bench interpreted the change in law to imply as follows: “… In the Old Code there was no restriction in preferring an appeal from an order passed under Section 476 or Section 476A, but in Section 341 of the new Code it has been clearly provided that no appeal lies against an order passed by this Court on an application under Section 340. A similar question came up for decision in a case before the Supreme Court reported in A.I.R. 1965 S.C. 1442 (South Asia Industries vs. Swarup Sing). Their Lordships at page 1443 laid down: ‘That if a specific enactment makes an order of a Single Judge – conclusive and final, the appeal provided in the Letters Patent will not prevail over such bar; it is only if there is no such bar that the appeal lies under the Letters Patent’. In view of the observations referred to above we have no hesitation to hold that irrespective of any provision in Clause 15 of the Letters Patent no appeal lies against an order passed by a Judge of this Court on an application under Section 340 of the Code. We therefore hold that this appeal is not maintainable.”
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16. The respondents also rely on a recent judgement of the Delhi High Court reported at 2012 (131) DRJ479(Ramesh Jaiswal v. Semjeet Singh Brar) where the Delhi High Court disagreed with the view expressed in Subir Kumar Ghosh on the ground that whatever may be the character of a court receiving a petition under Section 340 of the present Code of Criminal Procedure, such court would be exercising criminal jurisdiction in course of such petition and an appeal from an order passed in the exercise of criminal jurisdiction by a Single Bench of a High Court to which the Letters Patent applies would not be appellable under Clause 15 thereof on such ground alone.
17. The last of the judgments brought by the respondents is the one reported at (2017) 5 SCC533(Ram Kishan Fauji v. State of Haryana). Since such judgment holds the key to the present matter, it must be noticed in some detail. A recommendation was made by the Lokayukta in Haryana for the registration of a first information report for offences punishable under the Prevention of Corruption Act, 1988 against the appellant before the Supreme Court and investigation. The appellant before the Supreme Court challenged such recommendation by instituting proceedings under Article 226 of the Constitution. The writ Petition succeeded substantially and an appeal was carried from such order before a Division Bench of the Punjab & Haryana High Court. The principal issue raised by the appellant before the Supreme Court was that no appeal lay from the order of the Single Bench to the Division Bench of the High Court and that the order impugned before the Supreme Court was without jurisdiction.
18. The Supreme Court referred copiously to a judgment reported at 1966 (1) SCR190(CIT v. Ishwarlal Bhagwandas) and accepted what matters could be regarded as criminal proceedings as recognised at paragraph 8 of Ishwarlal Bhagwandas:
“8. … A 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 a danger to the maintenance of peace and order, or orders aimed at preventing vagrancy are contemplated to be passed. … The character of the proceeding, 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.”
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19. The Supreme Court referred to Clause 10 of the Letters Patent in the Punjab & Haryana High Court (inherited from the erstwhile Lahore High Court) and noticed the operative part thereof, for the purpose of the discussion in the judgment, to be the second limb of the words in parenthesis in such clause as highlighted herein: “… (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction and not being a sentence or order passed or made in the exercise of power of superintendence under the provisions of Section 107 of the Government of India Act, or in the exercise of criminal jurisdiction).”
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20. Clause 10 of the Letters Patent originally applicable to the erstwhile Lahore High Court and, at any rate, the relevant part thereof quoted above, is in pari materia with Clause 15 of the Letters Patent applicable to this court.
21. After referring to several judgments, including the views expressed by a Division Bench of the Gujarat High Court, a Full Bench of the Delhi High Court and a Full Bench of the Andhra Pradesh High Court, the Supreme Court concluded as follows at paragraph 56 of the report in Ram Kishan Fauji:
“56. … The conception of “criminal jurisdiction”. as used in Clause 10 of the Letters Patent is not to be construed in the narrow sense. It encompasses in its gamut the inception and the consequence. It is the field in respect of which the jurisdiction is exercised, is relevant. The contention that solely because a writ petition is filed to quash an investigation, it would have room for intra-court appeal and if a petition is filed under inherent jurisdiction under Section 482 CrPC, there would be no space for an intra-court appeal, would create an anomalous, unacceptable and inconceivable situation. The provision contained in the Letters Patent does not allow or permit such an interpretation. When we are required to consider a bar or non-permissibility, we have to appreciate the same in true letter and spirit. …”.
22. A previous Supreme Court judgment which could have some bearing on the matter in issue may also be referred to. The attention of the parties has been drawn to such decision. In the judgment reported at (1978) 1 SCC18(K. Karunakaran v. T. V. Eachara Warrier), the distinction between Section 476B of the old Code of Criminal Procedure and its successor provision, Section 341 of the present Code of Criminal Procedure, was noticed in the following words at paragraph 19 of the report:
“19. … Under section 476B, Cr.P.C. (old) there was a right of appeal from the order of a subordinate court to the superior court to which appeals ordinarily lay from an appealable decree or sentence of such former court. Under Section 476B (old) there would have ordinarily been a right of appeal against the order of the High Court to this Court. There is, however, a distinct departure from that position under Section 341, Cr.P.C. (new) with regard to an appeal against the order of a High Court under S. 340 to this Court. An order of the High Court made under sub-section (1) or sub-section (2) of Section 340 is specifically excluded for the purpose of appeal to the superior court under Section 341 (1), Cr.P.C. (new). …”.
23. To begin with, it appears to be rather obvious that when a court exercises its authority under any provision of the Code of Criminal Procedure it exercises criminal jurisdiction. The court may not otherwise have the status of a criminal court, but the general character of the court has no nexus with the nature of the jurisdiction that it exercises. The procedure applicable to the court by virtue of its character may apply even to the criminal matter before it, but that would not mean that the exercise of jurisdiction under any provision of the Code of Criminal Procedure by a civil court will amount to the nature of the authority exercised being civil in character. Clause 15 of the Letters Patent clearly excludes its applicability in case of an “order passed or made … in the exercise of criminal jurisdiction”.. It follows, therefore, that an order made under Section 340 of the Code of Criminal Procedure, by whatever forum empowered to exercise such authority, will not be appellable under Clause 15 of the Letters Patent as such order would have been made in the exercise of criminal jurisdiction and nothing else.
24. By virtue of Section 195 of the Code of Criminal Procedure, it is only “on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate”. that a criminal court take cognizance of certain offences pertaining to, broadly speaking, the administration of justice. The word ‘Court’ in Section 195(1)(b) of the Code of Criminal Procedure has been defined, by Section 195(3) thereof, to be “a Civil, Revenue or Criminal Court, and includes a Tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section.”
. Section 340 of the Code of Criminal Procedure refers to an offence under Section 195(1)(b) of the Penal Code. Such penal provision is covered by Section 195(1)(b)(i) of the Code of Criminal Procedure. Section 340 specifies that when an offence under Section 195(1)(b) of the Penal Code appears to have been committed “in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary”., inter alia, record a finding to such effect, make a complaint thereof in writing and send it to an appropriate magistrate.
25. Simply put, if perjury is alleged or perceived to have been committed in course of any proceedings before a court, it is such court that may make a complaint in respect thereof and send it to an appropriate magistrate. It is also possible for such complaint to be made by “some other Court to which that Court (in which the perjury is alleged or perceived to have been committed) is subordinate”. by virtue of Section 195(1)(b) of the Code of Criminal Procedure. It is the very nature of the offence that commands that the sanction to prosecute a perceived offender must be accorded by the very court wherein the offence is perceived to have been committed or by a court to which the relevant court is subordinate.
26. In the 1961 judgment of the Supreme Court in Narain Das, it was squarely held that an appeal from an order passed under Section 476 of the old Code of Criminal Procedure by a Single Bench of the Allahabad High Court would lie within such High Court. But that was by reason of Section 476B of the old Code of 1898 uniformly permitting appeals from all orders passed under Section 476 of the old Code of 1898 to the regular appellate forum of the court which passed such order. The source of authority for the appeal was in Section 476B of the old Code of 1898. Such right of appeal is no longer available in the comparable provision of Section 341 of the present Code of 1973 when it comes to an order passed under Section 340 of the present Code by a Single Bench of a High Court. Narain Das was decided purely on the basis of the authority in Section 476B of the old Code to prefer an appeal against an order passed under Section 476 of such Code and the right of appeal being available even in respect of orders passed under Section 476 of the old Code by a Single Bench of a High Court.
27. At the point of time prior to the present Code of 1973 replacing the old Code of 1898, an intra-court appeal in this High Court from an order passed under Section 476 of the old Code was provided for in Section 476B of such old Code in view of the expression “to the Court which such former Court is subordinate within the meaning of Section 195, sub-section (3)”.. It was only in such a scenario when Section 476B of the old Code of 1898 provided for an unrestricted right of appeal that an appeal from an order passed under Section 476 of the old Code by a Single Bench of this court could be maintained before a Division Bench of this court. Since the right of appeal under Section 476B of the old Code was already there, the exclusion under Clause 15 of the Letters Patent of an appeal against an order passed or made in the exercise of criminal jurisdiction would not matter; for, though the appeal before a Division Bench would lie on a conjoint reading of Section 476B of the old Code and Clause 15 of the Letters Patent, the authority for the appeal was exclusively in Section 476B of the old Code and only the forum to receive the appeal was guided by Clause 15 of the Letters Patent.
28. The situation is completely changed in the regime of the present Code of 1973 and in appeals not being permitted under Section 341 thereof from an order passed under Section 340 of the present Code if such order is passed by a High Court. In such an altered milieu, from the position that obtained under Section 476B of the old Code of 1898, the comparable Section 341 of the present Code can no longer be regarded as the source of the authority conferring a right of appeal against an order passed under Section 340 of the present Code when such order is passed by a Single Bench of a High Court. Even though Section 341 of the present Code does not prohibit an appeal being filed from an order passed under Section 340 of such Code by a Single Bench of a High Court, an appeal in such a situation would lie only if some other provision authorised it. Clause 15 of the Letters Patent cannot be seen to authorise such an appeal in view of the exclusion therein of appeals from an “order passed or made … in the exercise of criminal jurisdiction”..
29. An appeal, as is elementary, is the creature of a statute and a party to any proceedings does not have any inherent right to prefer an appeal against any order that such party may be aggrieved by or dissatisfied with, unless there is a specific provision in such regard. It is also not necessary that appeals from the similar nature of orders are provided for in a solitary provision of a single statute or even in different provisions of a same statute. A ready example in such regard is the situation created by Clause 15 of the Letters Patent which provides for intra-court appeals in a host of cases where the orders of such nature passed in the district judiciary may not be appellable under the Code of Civil Procedure. The rule as recognised by the majority opinion in the Constitution Bench judgment in P. S. Sathappan is that unless an appeal permitted by the Letters Patent is expressly excluded by some other law, an appeal against an order permissible under the Letters Patent would lie.
30. It is here that the judgment in Pashupati Nath De was appropriately found to be per incuriam in the more recent Division Bench judgment of this court in Subir Kumar Ghosh. To the extent that Pashupati Nath De read the words “other than a High Court”. in Section 341 of the present Code of Criminal Procedure to imply that they expressly prohibited an intra-court appeal in the High Court, such judgment was, indeed, rendered per incuriam by virtue of the dictum in P. S. Sathappan. But that is only one aspect of the matter. Even though Section 341 of the present Code of Criminal Procedure may not be seen to prohibit an intracourt appeal in respect of an order passed by a Single Bench of this court under Section 340 thereof, there has to be an appellate provision discovered elsewhere for an appeal to lie in such a case. In Subir Kumar Ghosh it was perceived that an intra-court appeal against an order passed by a Single Bench of this court under Section 340 of the present Code of Criminal Procedure would lie by virtue of Clause 15 of the Letters Patent. However, the judgment in Subir Kumar Ghosh did not refer to Clause 15 of the Letters Patent by quoting it or explaining how such an appeal would lie despite the words of exclusion used in parenthesis in such provision.
31. The only possible interpretation of the dictum in Subir Kumar Ghosh is that the Division Bench considered an order passed on a petition under Section 340 of the present Code of Criminal Procedure not to be an order passed or made “in the exercise of criminal jurisdiction”.. No reasons are evident, however, from the judgment as to why the authority exercised by a court under Section 340 of the present Code of Criminal Procedure should not be seen to be authority in the exercise of criminal jurisdiction. At any rate, the issue has been laid to rest by the recent Supreme Court judgment in Ram Kishan Fauji. The dictum in Subir Kumar Ghosh cannot be regarded as good law any longer.
32. At the time that the Division Bench judgment in Budhu Lal was decided on November 27, 1916, Clause 15 of the Letters Patent was quite different from how it stands now. The relevant clause in the original Letters Patent of 1865 underwent a substantial change following three amending Letters Patent of March 11, 1911, December 9, 1927 and December 12, 1928. The relevant part of the clause as it stood at the time that the judgment in Budhu Lal was rendered has been quoted above and the exclusion as to criminal matters was restricted to “a sentence or order passed or made in any criminal trial of one judge of the said High Court”.. The corresponding part in Clause 15 now precludes appeals from orders, inter alia, “passed or made … in the exercise of criminal jurisdiction”.. Thus, the law as recgonised in Budhu Lal is no longer applicable.
33. The other Division Bench judgment of this court in Shambu Nath Sadhukhan did not directly deal with the principal matter in issue herein, but referred to the applicable procedure being governed by the nature of the court irrespective of the nature of the authority that it exercised under a particular provision. Apart from the fact that the dictum may have no manner of application in the present case, in a sense, such decision may no longer be good law in view of the judgment in Ram Kishan Fauji.
34. To conclude, it must be held that no appeal lies from an order passed by a Single Bench of this court under Section 340 of the present Code of Criminal Procedure under Clause 15 of the Letters Patent. As a consequence, APO No.106 of 2017 is dismissed as not maintainable. ACO No.158 of 2016 and ACO No.3 of 2017 are also dismissed.
35. There will be no order as to costs.
36. Urgent certified website copies of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities. (Sanjib Banerjee, J.) I agree. (Siddhartha Chattopadhyay, J.)