Judgment:
R.R. Prasad, J.
1. As the question of maintainability of this writ application filed under Article 226 of the Constitution of India has been raised by the office, learned Counsel appearing for the petitioners and also other counsel appearing in other writ applications' maintainability of which has also been questioned, were heard.
2. Mr. V.P. Singh, learned senior counsel appearing for the petitioners submitted that invariably whenever writ application is field for quashment of any order passed by a criminal court, Stamp Reporter raises the question of maintainability presumably for the reason that other statutory remedy by way of revision or remedy under Section 482 of the Code of Criminal Procedure is available to the petitioners but that objection is totally uncalled for in view of the settled law that availability of statutory remedy never obliterates power of the High Court under Article 226 or 227 of the Constitution of India.
3. Learned Counsel in this respect referred to decisions rendered in a case of Jagir Singh v. Ranbir Singh : 1979CriLJ318 and Chandrasekhar Singh and Ors. v. Siya Ram Singh and Ors. : 1979CriLJ13 .
Thus, it was submitted that it is beyond the competence of the Stamp Reporter to raise issue of the maintainability of a writ application filed for quashment of an order passed by a criminal court.
4. Learned Counsel Mr. Kaushik Sarkhel, Mr. Pandey Niraj Rai as well as other counsel appearing in other writ applications also put forth the same submission that availability of other forum never diminishes the power of this Court under Articles 226 and 227 of the Constitution of India.
5. In this respect decision rendered by the Hon'ble Supreme Court in a case of Mosaraf Hossain Khan v. Bhagheeratha Engg. Ltd. and Ors. : 2006CriLJ1683 and a decision of this Court rendered in a case of Ranjana Verma v. State of Jharkhand and Ors. (2006) 4 JLJR 666 were referred to.
6. However, Mr. Rajiv Ranjan Mishra a learned Counsel appearing for the State submitted that in view of the ratio laid down by Full Bench of Patna High Court in a case of Ramesh Chandra Ravi alias Ram Prasad v. State of Bihar and 3 Ors. 1987 PLJR 650, judgments and orders of the judicial Magistrates and the courts of sessions would be totally out of purview of a writ of certiorari and are amenable only to the process of appeal, revision or the inherent jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure.
7. Learned Counsel by referring to a decision render and in a case of State of Himachal Pradesh v. Pirthi Chand and Anr. : 1996CriLJ1354 submits that the High Court would not be justified to exercise its power under Article 226 of the Constitution of Indian when the remedy under Section 482 of the Code of Criminal Procedure is available. In furtherance of his submission learned Counsel also put forth that remedy under Article 226 shall not be available except where violation of some statutory duty on the part of the statutory authority is alleged.
8. In this respect a decision rendered in a case of Mohan Pandey and Anr. v. Usha Rani Rajgaria (Smt. ) and Ors. : [1992]3SCR904 was referred to.
9. Invariably it is being noticed that under following circumstances power under Article 227/227 of the High Court is sought to be invoked.
Firstly, where no appeal or revision has been provided against the order in question.
Secondly, where a revision application filed before the sessions court gets dismissed, an application is being filed under Article 226 or 227 of the Constitution of India on account of the fact that second revision is barred under Section 397(3) of the Code of Criminal Procedure.
Third situation is that in spite of forum of revision or forum of this Court under Section 482 of the Code being available against the impugned order, the application under Article 227 is filed.
10. So far first category of the case is concerned, one in absence of any remedial forum can invoke jurisdiction of this Court either under Article 226 or 227 of the Constitution of India.
11. So far other two categories are concerned, it be reminded that Full Bench of the Patna High Court in a case of Ramesh Kumar Ravi alias Ram Prasad v. The state of Bihar and 3 Ors. 1987 PLJR 650 took the view that judicial orders of the criminal court (stricto sensu) under the Code of Criminal Procedure, are not amenable to quashing by a writ of certiorari. But that view subsequently was overruled by the Special Bunch of the Patna High Court in a case of Surendra Singh and Ors. v. State of Bihar 1990 (2) PLJR 693 holding therein that it is difficult to hold that orders of judicial Magistrates and the courts of session would be totally out of the purview of a writ of certiorari. The court while holding so, did take notice of the decision rendered in a case of Jagir Singh v. Ranbir Singh and Ors. (supra) holding therein that even if there is prohibition under the statute of preferring second revision before the High Court, it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India.
12. Similar view has also expressed by the Hon'ble Supreme Court in a case of Chandrasekhar Singh and Ors. v. Siya Ram Sigh and Ors. (supra) holding therein that any statutory bar cannot affect the power of the High Court under Article 227 of the Constitution of India. The same view has been expressed by the Hon'ble Supreme Court subsequently in a case of Umaji's case : [1986]1SCR731 where it has been held as follows:
Further the insertion of Articles 226, 227 and 228 in the Constitution without making them subject to any law to be made by the appropriate legislature put these Articles beyond the legislative reach of Parliament and the State Legislature with the result that these Articles can only be curtailed or excluded with respect to any matter by a Constitutional amendment and not by ordinary legislation.
Recently in a case of Mosaraf Hossain Khan v. Bhagheeratha Engg. Ltd. and Ors. (supra), a question arose before the Hon'ble Supreme Court as to whether High Court can exercise its extraordinary certiorari jurisdiction against the order passed by the Magistrate taking cognizance under Section 190 of the Code of Criminal Procedure? The same was answered hereunder:
It is no doubt true that in a criminal matter also the High Court may exercise its extraordinary writ jurisdiction but interference with an order of the Magistrate taking cognizance under Section 190 of the Code of Criminal Procedure will stand somewhat on a different footing as an order taking cognizance can be the subject-matter of a revisional jurisdiction as well as of an application invoking the inherent jurisdiction of the High Court. A writ of certiorari ordinarily would not be issued by a writ court under Article 226 of the Constitution against a judicial officer (Naresh Shridhar Mirajkar v. State of Maharashtra). However, we are not obvious of a decision of this Court in Surya Dev Rai v. Ram Chandra Rai wherein this Court upon noticing Naesh Shridhar Mirajkar and also relying on a Constitution Bench of this Court in Rupa Ashok Hurra v. Ashok Hurra opined that a Judicial Court would also be subject to exercise of writ jurisdiction of the High Court. The said decision has again been followed in Ranjeet Singh v. Ravi Prakash. It is, however, not necessary to dilate on the matter any further. The jurisdiction of the High Court under Section 482 of the Code of Criminal procedure was noticed recently by this Court in State of U.P v. Surendra Kumar holding that even in terms thereof, the Court cannot pass an order beyond the scope of the application thereof. In Surya Dev Rai we may, however, notice that this Court categorically stated that the High Court in issuing a writ of certiorari exercises a very limited jurisdiction. It also made a distinction between exercise of jurisdiction by the High Court for issuance of a writ of certiorari under Articles 226 and 227 of the Constitution. It categorically laid down that while exercising its jurisdiction under Article 226, the High Court can issue a writ of certiorari only when an error apparent on the face of the record appears as such; the error should be self-evident Thus, an error according to this Court needs to be established. As regards exercising the jurisdiction under Article 227 of the Constitution it was held:
The power may be exercised in cases occasioning grave injustice of failure of justice such as when (i) the court or tribunal has assumed a jurisdiction which it dos not have, (ii) has failed to exercise a jurisdiction which it does not have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamount to overstepping the limits of jurisdiction.
Following the said decision as well as other decisions of the Hon'ble Supreme Court, this Court in a case of Ranjana Verma v. State of Jharkhand and Ors. (supra) did hold that the order passed by the Sub-divisional Judicial Magistrate is amenable to the jurisdiction of the High Court under Articles 226 and 227 of the Constitution and thereby did hold that decision taken by the Division Bench of this Court in W.P.(Cr.) (H.B) No. 122 of 2006 holding therein that the order passed by the judicial Magistrate is amenable only to the writ jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure is per incuriam.
13. It be also noticed that in a case of State of Himachal Pradesh v. Pirthi Chand and Anr. (supra) as referred to on behalf of the State, it has never been held that in case of remedy being available under Section 482 of the Code of Criminal Procedure, writ application would not be maintainable, rather it has only been held that when the remedy under Section 482 of the Code of Criminal Procedure is available, the High Court would be loath and circumspect to exercise its extraordinary power under Article 226 of the Constitution of India.
14. Thus, there is no hesitation in holding that even in the aforesaid two categories one can invoke extraordinary jurisdiction of the High Court as the power of this Court under Article 226/227 of the Constitution cannot be abridged or curtailed by statutory provision or even by judicial pronouncement but at the same time as has been held by the Hon'ble Supreme Court in a case of Jagir Singh v. Ranbir Singh and Anr. (supra) that power should be exercised in very exceptional circumstances and, therefore, it is only for the Court to decide as to whether order sought to be quashed warrants interference by this Court in exercise of jurisdiction under Article 226/227 of the Constitution of India. Accordingly, the question of maintainability raised by the office is hereby overruled. Put up this case for admission.