Nature of proceeding(not nomenclature) is the “litmus test” to determine maintainability of intra-court appeal, SC

In a significant judgment, a 3-judge Bench of the Supreme Court has held that an appeal to a Division Bench of the High Court is not maintainable against an order of a single judge in a criminal matter, even if the order by the single judge was passed in a petition styled as civil writ petition..In the process, the Court has laid down that the nature of the controversy and proceedings would be the deciding factor to ascertain whether an intra-court appeal will lie or not..The judgment was delivered by a Bench of Justices Dipak Misra, A M Khanwilkar and M Shantanagoudar. Senior Advocate Rajeev Dhawan appeared for appellant while advocate Sanjay Kumar Visen represented the respondent State..The case has its genesis in a recommendation by Lokayukta, Haryana to enquire into and register an FIR against certain corrupt persons. An FIR was accordingly registered and criminal investigation was initiated..A civil writ petition was filed in the Punjab & Haryana High Court praying for issue of a writ in the nature of Certiorari for quashing of the orders of the Lokayukta. The single judge disagreed with the power exercised by the Lokayukta and quashed the proceedings..The matter then came to a Division Bench of the Court via a Letters Patent Appeal. The Division Bench overturned the decision of the Single judge and ordered an SIT to be constituted against the accused persons..The appellant, aggrieved by this, moved the Supreme Court. Assailing the sustainability of the order passed by the Division Bench of the High Court, Senior Advocate Rajeev Dhawan, raised the contention that the LPA preferred before the Division Bench was not maintainable as the Single Judge had exercised criminal jurisdiction..Advocate Sanjay Kumar Visen, resisted the aforesaid submission. He contended that the writ petition was registered as a civil writ petition for the purpose of issuing a writ of Certiorari and the exercise of jurisdiction by the High Court is civil in nature thereby permitting intra-court appeal..His contention was that when the posts held by Lokayukta and Upa-Lokayukta are quasi-judicial in nature, their functioning has to be given the same character. Once they are clothed with such functioning and action taken by them is subject to challenge before the High Court under Article 226 of the Constitution seeking a writ of certiorari for quashing of the same, the adjudication has to be regarded as civil in nature..The Court in its judgment noted that it is not concerned with the nature of the post held by the Lokayukta. Instead it placed reliance on clause 10 of the Letter Patent as applicable to High Court..“In the instant case, we are really not concerned with the nature of the post held by Lokayukta or Upa-Lokayukta; On a plain reading of the aforesaid clause of the Letters Patent, it is manifest that no appeal lies against the order passed by the Single Judge in exercise of criminal jurisdiction…..If the proceeding, nature and relief sought pertain to anything connected with criminal jurisdiction, intra-court appeal would not lie as the same is not provided in Clause 10 of the Letters Patent…Thus, the question that is required to be posed is whether the learned Single Judge, in the obtaining factual matrix has exercised criminal jurisdiction or not.”.It then discussed the ambit of criminal jurisdiction as used in clause 10 of the Letters Patent..“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 Court made it clear that the relevant factor for deciding whether the court has exercised criminal jurisdiction would be the subject of controversy and the nature of proceeding..“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. It confers jurisdiction as regards the subject of controversy or nature of proceeding and that subject is exercise of jurisdiction in criminal matters. It has nothing to do whether the order has been passed in exercise of extraordinary jurisdiction under Article 226 of the Constitution or inherent jurisdiction under Section 482 CrPC.”.Applying the same to the facts of the instant case, the Court held that the effort of the writ petitioner was to avoid criminal investigation and the order of the single judge of the writ court was to quash FIR registration. Hence, it would be a criminal proceeding..“In the case at hand, the writ petition was filed under Article 226 of the Constitution for quashing of the recommendation of the Lokayukta. The said recommendation would have led to launching of criminal prosecution, and, as the factual matrix reveals, FIR was registered and criminal investigation was initiated. The learned Single Judge analysed the report and the ultimate recommendation of the statutory authority and thought it seemly to quash the same and after quashing the same, as he found that FIR had been registered, he annulled it treating the same as a natural consequence. Thus, the effort of the writ petitioner was to avoid a criminal investigation and the final order of the writ court is quashment of the registration of FIR and the subsequent investigation. In such a situation, to hold that the learned Single Judge, in exercise of jurisdiction under Article 226 of the Constitution, has passed an order in a civil proceeding as the order that was challenged was that of the quasi-judicial authority, that is, the Lokayukta, would be conceptually fallacious. It is because what matters is the nature of the proceeding, and that is the litmus test.”.In so laying down, the Court also clarified that the Gujarat and Delhi High Courts have laid down the correct law in this regard while the view expressed by a Full Bench of the Andhra Pradesh High Court is incorrect..Read full judgment below.