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Raj Nath Vs. Avadh Behari and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 598 of 1974
Judge
Reported in11(1975)DLT113
ActsConstitution of India - Article 226
AppellantRaj Nath
RespondentAvadh Behari and ors.
Advocates: B.S.C. Singh and; Sultan Singh, Advs
Cases ReferredIn Praayat Kumar. Bose v. The Hon
Excerpt:
.....writ petition filed under article 226 of the constitution of india, against the order of a single judge of high court was amenable to its own writ jurisdiction - the order rendered by the single judge of the high court was challenged on the ground that it violated the fundamental rights of the petitioners - it was ruled that the order being an order of the high court, could not be challenged by invoking writ jurisdiction - accordingly, it was ruled that the petition was not amenable to its own writ jurisdiction - - learned counsel further contends that the impugned order of the learned single judge clearly militates against the consritutional guarantee against self-incrimination in that it compels the petitioner, who is alleged to have committed an offence, to produce certain records,..........a judicial order could not breach the fundamental right under article 19 of the constitution, the learned judge specifically posed but left open the further question whether a judicial order could be conceived as constituting an infraction of the fundamental guarantee against self incrimination. (8) in the case of naresh shridhar mirajkar(supra) the supre ae court was concerned with a petition under article 32 of the coasticution of india by a press correspondent seeking quashing of an oral order passed by tarkunde j. in the trial of a civil action on the or ginal side of the bombay high court prohibiting the publication in the press of the evidence of a witness at the trial on the ground that it militated against the fundamental right of the petitioner under article 19(1) of the.....
Judgment:

H.L. Anand, J.

(1) The questions that this petition under Article 226 of the Constitution of India raises are (a) whetter a judicial order made by a learned Single Judge of this Court in the trial of a Civil Suit on the Original side can breach the fundamental right of a citizen, (b) whether, assuming that it does, such an order would be amenable to the writ jurisdiction of this court either for the enforcement of the fundamental right or for any other purpose. The petition has been filed in the following circumstances :

(2) In the course of proceedings of a civil suit pending before a learned Single Judge of this Court, the petitioner filed an affidavit that property bearing No. 8225-26, Ward No. Xvi, situated on plot No. 61/4, Ramjas Road, W.F.A. Karol Bagh, New Delhi, belonged to respondent No. 3 before us. Respondent No. 2 applied under Sections 476,479A and 561A of the Code of Criminal Procedure read with Article 215 of the Constitution with the allegations that the affidavit contained false statements and called for action against the petitioner. In support of the application, respondent No. 2, to substantiate his case, summoned the petitioner and required him to produce certain accounts books in evidence. Petitioner took exception to this and contended that he could not be required to appear as a witness as the proceedings being criminal in nature and he being in the position of an accused, the requisition would militate against the fundamental guarantee against self-incrimination as embodied in Article 20(3) of the Constitution of India.

(3) The learned Single Judge overruled the objection and held. basing the decision on the case of Raja Narbyahanlal Bansilal v. Naneck Phiroz Mistry State of Bombay Hathi Kalu and certain other cases, that the constitutional protection of Article 20(3) was not available to the petitioner at that stage as he could riot be considered to be a 'person accused of an offence' in that no formal accusation had as yet been made against him and consquently directed the petitioner to comply with the requisition failing which warrants for his arrest 'will be issued to enforce his attendance in Court'. It is this order which is sought to be quashed by the petition. Apart from the parties to the proceedings, the learned Single Judge has also been imp leaded.

(4) On the said petition coming up for preliminary hearing Rule nisi was issued but at the stage when a motion for stay came up for consideration, learned counsel for the petitioner was celled upon to satisfy us if the petition was maintainable and a writ could be issued in the circumstances of the case.

(5) Learned counsel for the parties have since addressed us on both the questions that arise for consideration.

(6) On the first of the two questions referred to above, Bawa Shivcharan Singh, learned counsel for the petititioner contended and rightly in our view, that State action is subject to the restriction imposed by Part Iii of the Constitution and any such action would be liable to be struck down if it travels beyond the permissible constitutional limitations. Learned counsel, however, further contends that the judiciary being a judicial wing of the State was as much within the aforesaid limitations as the other two branches of the State, viz. the legislature and the executive and that, thereforee, jud cial action must also be confined to the aforesaid limits so that if a judicial order transgressed any of the fundamental rights guaranteed by the Constitution, it would be liable to be struck down by the Supreme Court, as inde d, by the High Court having jurisdiction in the matter by appropriate writs under Article 32 or Article 226 of the Constitution, as the case may be. Learned counsel further contends that the impugned order of the learned Single Judge clearly militates against the consritutional guarantee against self-incrimination in that it compels the petitioner, who is alleged to have committed an offence, to produce certain records, saide to the capable of substantiating the charge and would, thereforee, entitle the petitioner to such judicial protection under Article 226 of the Constitution for the enforcement of his fundamental right of freedom from self-incrimination.

(7) Learned counsel, however, candidly conceded that the contention that a judicial order made by a Court of competent jurisdiction within the limits of such jurisdiction could breach a fundamental right would ex-facie he contrary to ihe majority Judgment of the Supreme Court in the case of Naresh Shridhar Miraikar v. State of Maharashtrad, but contends that the Supreme Court in that case was concerned with the challenge to ajudicial order on the ground that it transgressed the fundamental rights of the petitioner before the Supreme Court under Article 19(1) of the Constitution of India and even though the larger question whether the judicature was entitled to be excluded from the definition of the term 'State' under Article 12 of the Constitution .of India and as to a possible challange to any such order on the ground that it constituted an infraction of Article and certain other fundamental rights were argued before the Supreme Court,the majority judgme'nt in terms confined the determination to narrow limits and that the question whether a judicial order was capable of militating against the fundamental guarantee against self-incrimination had been left open. Learned counsel on the other hand relied on the minority decision of Hidayatullah J., as he then was. in which larger qrestion as to the true meaning of the term 'Stated under Areicle 12 of,the Constitution and as to the possible infraction by the judicial order of the fundameatal guarantees as the one provided by Article 90(8) of the Constitution were dealt with at length and the learned counsel also sought support from the sepirate though concurring judgment of Shah J, as he then was in which even while holding that a judicial order could not breach the fundamental right under Article 19 of the Constitution, the learned Judge specifically posed but left open the further question whether a judicial order could be conceived as constituting an infraction of the fundamental guarantee against self incrimination.

(8) In the case of Naresh Shridhar Mirajkar(supra) the Supre ae Court was concerned with a petition under Article 32 of the Coasticution of India by a Press correspondent seeking quashing of an oral order passed by Tarkunde J. in the trial of a civil action on the or ginal side of the Bombay High Court prohibiting the publication in the press of the evidence of a witness at the trial on the ground that it militated against the fundamental right of the petitioner under Article 19(1) of the Constitution of India The order of Tarkunde J. was initially challenged by the petitioner in a petition under Article 226 of the Constitution of India before a Division Bench of the said High Court but the petition was dismissed by the High Court in liming, though by a detailed order on the ground that the impugned order was a judicial order of the High Court and was not amenable to its writ jurisdiction. (See Naresh Shridhar Mirajkar v. His Lordship The Honourable Mr. Justice Tarkunde.

(9) The majority judgment by Gajendargadkar C. J., as he then was, for himself and for Wanchoo, Mudholkar, Sikiri and Ramaswami JJ. took the view that the oral order of Tarkunde J. banning the publication of the evidence did not impose ' a permanent ban on the publication of the said evidence ' that the High Court had inherent jurisdiction to hold a trial in camera if it was satisfied that the ends of justice required that such a course be adopted ; that a judicial order of a Court of competent jurisdiction in and in relation to matter brought before it for adjudication could not affect the fundamental rights of .the citizen under Article 19(1) of the Constitution: that the challenge to the order on the ground that it infringed the fundamental right of the petitioner under Article 19(1) was 'based on a complete misconcep corporation about the true nature and character of judicial process and of judicial decisions'; that assuming that the impugned order could be .said 'incidentally or indirectly to effect the fundamental rights of the petitioner under Article 19(1)' such incidental consequences 'which may flow from the order will not introduce any constitutional infirmity in it'; that the impugned order was not amenable to the writ jurisdiction of the Supreme Court under Article 32 of the Constitution of India because the order had been made by a superior Court of record in the exercise of its inherent power having the power to decide any question with regard to its jurisdiction. The petition was accordingly dismissed.

(10) In his dissenting judgment, Hiyadatullah J. came to the conclusion that the ban imposed by the impugned order was not of a temporary nature but would ensure for all time; that the impugned order was illegal and without urisdiction that the order violated the fundamer taler ghts of the petitioner under Article 19(1) of the Constitution of India: that the term 'State' in Article 12 of the Constitution also included within its ambit the judicature as well; that Article 20 in particular had relation to judicial action and that judicial action was not immune from attack on the ground of infraction of a fundamental right : that a judicial order could in certain circumstances breach the fundamental rights and be corrected by approp iate writ under Article 32 of the Constitution of India and quashed the impugned order.

(11) By a separate but concurring judgment. Shah J. posed but Ieft open the question whether orders made by a Court may vrolate the fundamenial guarantees under Articles 20, 21 and 22(1) of the Constitution would be subject to the jurisd ction of the Supreme Court under Article 32 of the Constitution. The learned Judge, however, found a clear distinction between the fundamental guarantee incorporated in Articles 20, 21 and 22(1) of the Constitution and certain other Articles such as Article 19(1) of the Constitution and observed that Article 19 on the one hand and Articles 20, 21 and 22 on the other were differently worded and that while Article 19 had relation to the State action, 'Articles 20, 21 and 22(1) impose directly restrictions .upon the power of authorities'. It was further observed that 'the personal freedoms under Article 19 are subject to reasonable restrictions which may bs imposed by law' but 'the prohibitions in Articles 20, 21 and 22 are absolute in terms' and that the form in which the rights under Articles 20, 21 and 22(1) were guaranteed and the absolute character of injunctions against the authorities' clarly emphasize the distinct and special character of those rights.' A decision on the question was, however, considered unnecessary.

(12) It appears to as that while learned counsel is correct in his submission that even though larger questions whether the judicature was entitled to be excluded from the definition of the term 'States under Article 12 of the Constitution or as to a possible challenge to any judicial order on the ground of infraction of Article 20 and certain other fundamental rights were argued before the Court, the majority decision was in terms confined to determination to narrow limits and may besaid to have left the question with regard to the possible infraction of the guarantee against self-incrimination by judicial order open and that the minority judgment of Hidayatullah J., to an extent, supported the contention that the judicature was not above the fundamental rights and that a judicial order could in certain circumstances be considered as infringing the fundamental rights of a citizen and be dealt with accordingly in the same way in which an executive or legislative action may be treated and that Shah J. in his judgment treated Article 20 Along with certain other Articles as a category by themselves and eft the question of their possible violation by a judicial order open, the majority judgment nevertheless does not leave any manner of doubt that ajudicial order made by a.Court of competent jurisdiction within the confines of the limits of that jurisdiction could not be conceived as being vocative of any fundamental right and the observation do not appear to us to be confined to the fundamental right guaranteed by Article 19(1) by Constitution. This is how the majority judgment sets out its conclusion on the question:..

'The argument that the impugned order affects the fundamental rights of the petitioners under Article 19(1), is bassed on a complete misconception about the true nature and character of judicial process and of judicial decisions. When a Judge deals with matters brought before him for his adjudication, he first decides questions of fact on which the parties are atissue, and then.applies the relevant law to the said facts. Whther, the rindings of fact recorded by the Judge are right or wrong, and whether the conclusion of law- drawn by him suffers from any infirmity, can beconsidered and decided if the party aggrieved by the decision of the Judge takes the matter up before the appellate Court. But it is singularly inappropriate to assume that a judicial decision pronounced by a Judge of competent jurisdiction in or in relation to a matter brought before him for adjudication can-affect the fundamental rights of the. citizens under Article 19(1). What the judicial decision purports to . do is to decide the controversy between the parties brought before. the Court and nothing more.'

(13) We have considered the observations of Hidayatullah and Shah JJ. in the aforesaid judgment, and they are entitled to utmost respect and are aware of the strong support that the minority opinion of Hidayatullah J. has since received from the leading commentator on the constitutional law of India as to the true meaning and import of the term 'State' and in particular that it would take within its sweep the judicature as well in the same way as it does the executive aad legislative wings of the State. We do not, however, find anything in any of the aforesaid judgments or in the observations' of the .learned commentator which may justify the extreme contention urged before us that an order made by a Court in judicial proceedings could be conceived as militating against the fundamental right even though it is made after hearing the parties and within the limits of the Court's jurisdiction. Even Hidayatulla J.has in the minority judgment concedtcl that such an order could not be conceived as violating the fundamental rights. The proposition whether a judicial order, which is without jurisdiction, could breach the fundamental right does not fall to be considered in the present case.

(14) The first question must, thereforee, he answered in the negative.

(15) This takes us to the consideration of the second question and it appears to us that even assuming that a judicial order made by a learned Single Judge of this Court could be conceived as militating against the fundamental right including the fundamental guantee against the self-incrimination it would not be amenable to the writ jurisdiction of this Court.

(16) Article 226 of the Constitution of India empowers High Courts to issue to any person or authority, including in appropriate cases any Government appropriate writs, orders and directions for the enforcement of the fundamental rights and for other purposes and this power has been recognised to he-in a sense wider then one conferred on the Supreme Court of India by Article 32 of Constitution of India, in that, the power can be exercised by the High Courts not only for the enforcement of the fundamental rights but even for other purposes. It is also well recogntsed that in the matter of invoking their jurisdiction under Article 226 of the Constitution of India, the High Courts need not look back to the earlier history or procedural technicalities of writs 'in English law,'nor fel oppressed by any difference or change of opinion expressed in particular cases by English Judges' and that the High Courts could issue writ'irifcluding the writs in the nature of certicrari in all appropriate cases and in appropriate manner, so long as they 'keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law.'

(17) There has been some controversy both in England and in this country as to whether a superior' Court or a Court of concurrent jurisdiction or a Judge within the same Court would be amenable to the writ jurisdiction and it may be useful to consider these decisions.

(18) In Goonesinha O' L.de Kretser it was held by the Judicial Commitiee in a case from Ceylon that a Court having jurisdiction to issue a writ of certiorari will not and cannot issue it to bring up an order made by a Judge of that Court even though in that case a Judge of the Supreme Court to whom the writ was sought to be issued had been discharging functions as Election Tribunal but was held nevertheless still to be a Judge of that Court. In Naresh Shridhar Mirajkar v. His Lordship The Honourable Mr. Justice Tarkunde a Division Bench of the Bombay High Court held that in respect of an older passed by a Single Judge of that High C'ourt in his judicial capacity no other Bench of the same Court had jurisdiction to issue any writ against him in the exercise of its constitutional powers It was further held that the learned Single Judge, whose order was sought to be quashed wtiile sitting on the original side of the Bombay High Court, was peforming the function of the High Court even though in the exercise of the original jurisdiction of that Court and was, thereforee, functioning as the High Court in the same manner as the other Judges of that Court, whither in the exercise of original or appellate jurisdiction. In N. Devasahayam v. State of Madras,' it was held that no writ could lie against the High Court or any of its Judges acting judicially but the administrative matters of the High Court or of a Single Judge or Chief Justice were not immune from such jurisdiction In Praayat Kumar. Bose v. The Hon'ble Chief Justice of Calcutta High Court,' and Himansu Kumar Bone v. .Jyoti Prakash Mitter the question whether a judicial order of High Court would be amenable to the writ jurisdiction of that Court was left open but certain observations of the Supreme Court in the case of Naresh Shridhar Mirajkar (supra) would appear to leave no manner of doubt that a writ could no be issued by a Division Bench of the High Court to a Judge of that Court or to any Judge of any other high Court. The question was considered by the Supreme Court from the point of view of the amenability of the order of the High Court to a writ jurisdiction of the Supreme Court and the majority judgment dealt with the point in the following manner :

'THEREis yet another aspect of this matter to which it is necessary to refer. The High Court is a superior Court of Record and under Article 215 shall have all powers of such a Court of record including the powers to punish contempt of itself. One distinguishing characteristic of such superior Courts is that they are entitled to consider questions of their jurisdiction raised before them. This question fell to be considered by this Court in Special Reference No, 1 of 1964, 1965 1 Scr 413. In that case, it was urged before this Court that in granting bail to Keshav Singh, the High Court had exceeded its jurisdiction and as such, the order was a nullity. Kejecting this argument this Court observed that in the case of a superior Court of Record, it is for the Court to consider whether any matter falls within its jurisdiction or not Untike a Court of limited jurisdiction, the superior Court is entitled to determine for itself questions about is own jurisdiction. That is why this Court did not accede to the proposition that in passing the order for interim bail, the High Court can be said to have exceeded its jurisdiction with the result that the order in question was null and void. In support of this view, this Court cited a passage from Halsbury's La.wsof England where it is observed that 'prima facie no matter is deemed to b3b..'yond the jurisdiotion of a superior Court unless it is expressly shown to be so, while norhing is within the jurisdiction of an inferior Court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular Court.'

If the decision of a superior Court on a question of its jurisdiction is erroneous. It can, of course, be corrected by appeal or revision as may be permissible under the law ; but until the adjudication by a superior Court on such a point is set aside by adopting the appropriate course, it would not be open to be corrected by the exercise of the writ jurisdiction of this Court.'

(19) Certain observations in the minority opinion of Hidayatullah J. in the above case appear to support the majority opinion on this aspect of the matter. This is how Hidayatullah J. put it :

'Imust hold that this English practice of not issuing writs in the same court is in the very nature of things One High Court will thus not be able to issue a writ to an another High Court nor even to a court exercising the powers of the High Court. In so far as this Court is concerned, the argument that the Bench or one Judge, might issue a writ to another Bench or Judge, need hardly be considered. My opinion gives no support to such a view and I hope I have said nothing to give countenance to it. These are imaginary fears which have no reality either in law or in fact.'

(20) It is in the light of these principles that we have to consider how far a judicial order made by a Single Judge of this Court would be amenable to the writ jurisdiction of this Court. It is well settled that a writ of certiorari would issue to an inferior Court or Tribunal and would never issue within the same Court or the Court of concurrent jurisdiction or to a Court which was a Court of Record and in that sense itself a superior Court. If the order of the High Court was not amenable to the writ jurisdiction of the Supreme Court because the High Court was itself a superior Court of Record even though the Supreme Court had appellate jurisdiction over the High Court, it would be difficult to accept the position that a Division Bench of this Court could issue a writ against the learned Single Judge Of this Court merely because the Division Bench-had appellate jurisdiction in certain matters over the decision of the Single Judge. The position 'would in no way be different merely because the learned-Single Judge may be exercising original jurisdiction because, as pointed out by the Bombay High Court in the case of Naresh Sharidhar Mirajkar (supra) alearned Single Judge of the High Court exercising original or appellate -jurisdiction was as much the High. Court as the learned Judges of the Court sitting in larger Benches.

(21) We are, thereforee, of the view that the order of learned Single Judge is not amenable to the writ jurisdiction of that Court and this contention of the petitioner must also fail.

(22) In the circumstances, the petition fails and is hereby dismissed but without costs.


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