Letters Patent Appeal No. 335 of 2011 in Special Criminal Application No. 989 of 2009 and Civil Application No. 2373 of 2011 in Letters Patent Appeal No. 335 of 2011 and Letters Patent Appeal No. 336 of 2011 in Special Criminal Application No. 990 of 2009 and Civil Application No. 2374 of 2011 in Letters Patent Appeal No. 336 of 2011. Case: Nitin Shantilal Bhagat and Anr. Vs State of Gujarat through B.R. Choksi. Gujarat High Court

Case Number:Letters Patent Appeal No. 335 of 2011 in Special Criminal Application No. 989 of 2009 and Civil Application No. 2373 of 2011 in Letters Patent Appeal No. 335 of 2011 and Letters Patent Appeal No. 336 of 2011 in Special Criminal Application No. 990 of 2009 and Civil Application No. 2374 of 2011 in Letters Patent Appeal No. 336 of 2011
Party Name:Nitin Shantilal Bhagat and Anr. Vs State of Gujarat through B.R. Choksi
Counsel:For Appellant: Percy Kavina, Sr. Counsel and Shilpa R. Shah, Adv. and For Respondents: Krina Calla, AGP.
Judges:S.J. Mukhopadhaya, C.J., Anant S. Dave and J.B. Pardiwala, JJ.
Issue:Drugs and Cosmetics Act, 1940; Indian High Courts Act, 1861 - Sections 13, 15, 101, 101(1), 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 113, 114, 223, 130; High Courts Acts, 1865; High Courts Acts, 1911; Government of India Act, 1915 - Sections 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 135; Government of India ...
Citation:2011 (3) GLR 1972, 2012 CriLJ 886
Judgement Date:May 10, 2011
Court:Gujarat High Court
 
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Judgment:

S.J. Mukhopadhaya, C.J., (At Ahmedabad)

1. The present controversy relates to an important question `whether an intra-court appeal (Letters Patent Appeal) under Clause 15 of the Letters Patent is maintainable against an order passed by a learned Single Judge of the same High Court under Article 226 of the Constitution of India while exercising such power in its criminal jurisdiction'.

2. There being conflicting views of two Division Benches of this Court, and some ambiguity whether there can be separate civil and criminal jurisdiction with regard to the petitions under Article 226 of the Constitution, cases were referred to Larger Bench for its decision.

3. The facts giving rise to these appeals in brief are as follows:

L.P.A. No. 335/2010:

The State of Gujarat preferred a writ petition under Article 226 of the Constitution, in Special Criminal Application No. 989 of 2009 before this Court against one Nitinbhai Shantilal Bhagat and Anr. (Appellants in Letters Patent Appeal No. 335 of 2001) challenging the judgment and order dated 12th May 2008 passed by the learned Chief Metropolitan Magistrate, Ahmedabad, in Criminal Case No. 368 of 1996. The said case pertains to offences punishable under the provisions of Drugs and Cosmetics Act, 1940, allegedly committed by the Appellants herein. Learned Single Judge after hearing the parties quashed the order dated 12th May 2008 passed by Chief Metropolitan Magistrate and remanded the entire proceeding to decide the quantum of punishment, the admission of guilt having achieved finality.

L.P.A. No. 336/2010:

The other writ petition under Article 226 of the Constitution of India in Special Criminal Application No. 990 of 2009 was also preferred by the State of Gujarat against M/s. Dermocare Laboratories and two others, Appellants herein. In the said case, judgment and order dated 12th May 2008 was challenged. The said case pertains to offence punishable under the provisions of Drugs and Cosmetics Act, 1940 allegedly committed by the Appellants herein. In the said case also by order dated 3rd February 2011, learned Single Judge remitted the matter to learned Chief Metropolitan Magistrate, Ahmedabad to decide the quantum of punishment after giving opportunity to the Appellants, admission of guilt having achieved finality.

4. While Mr. Percy Kavina, learned Senior counsel for the Appellant in Letters Patent Appeal No. 335 of 2010 would contend that appeal under Clause 15 of the Letters Patent is maintainable against an order passed by the learned Single Judge in a petition under Article 226, and referred to one or other decisions of this Court and Supreme Court; according to Mrs. Krina Calla, learned A.G.P., appeal under Clause 15 of Letters Patent Appeal is not maintainable against an order of learned Single Judge even passed under Article 226, if power is exercised under criminal jurisdiction.

5. For determination of the issue, it will be desirable to notice the background history of Letters Patent, the relevant Clause 15 and other provisions. The background history having already discussed by the Supreme Court in Umaji Keshao Meshram and Ors. v. Smt. Radhikabai reported in AIR 1986 SC 1272 (1), we take advantage of the same and quote some of the relevant paragraphs, as follows:

5. The High Court of Judicature at Bombay was established by Letters Patent. dated June 26, 1862, issued by the British Crown in pursuance of authority conferred upon it by the Indian High Courts Act, 1861 (24 and 25 Vict., Clause 104). Clause 14 of the said Letters Patent provided as follows:

14. 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 Bombay from the judgment, in all cases of original civil jurisdiction, of one or more Judges of the said High Court or of any Division Court, pursuant to Section 13 of the said recited Act: Provided always that no such appeal shall lie to the High Court as aforesaid from any such decision made by a majority of the full number of Judges of the said High Court, but that the right of appeal in such case shall be to us. Our heirs or successors, in Our or Their Privy Council in manner hereinafter provided.

6. The Letters Patent issued in 1862 were revoked and replaced by Letters Patent dated December 28, 1865. Clause 15 of the new Letters Patent in its original form was in the following terms:

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 Bombay, from the judgment (not being a sentence or order passed or made in any criminal trial) of one Judge of the said High Court, or of one Judge of any Division Court, pursuant to Section 13 of the said recited Act; and that an appeal shall also lie to the said High Court from the judgment not being a sentence or order as aforesaid, of two or more Judges of the said High Court, or of such Division Court, wherever such Judges are equally divided in opinion, and do not amount in number to a majority of the whole of the Judges of the said High Court, at the time being, but that the right of appeal from other 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.

7. By Letters Patent dated March 11, 1919. published in the Bombay Government Gazette dated June 19, 1919. Part I, pages 1446-7 the words and brackets in Clause 15, namely, "(not being a sentence or order passed or made in any criminal trial)", were substituted by the words and brackets "(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 section one hundred and seven of the Government of India Act, 1915, or in the exercise of criminal jurisdiction)." By Letters Patent dated December 9, 1927, published in the Bombay Government Gazette dated February 2, 1928, Part I, Pages 196-7, Clause 15 was substituted. This substituted clause was amended by Letters Patent dated January 22, 1929, published in the Bombay Government Gazette dated January 24, 1929, Part 1, at pages 131-2. The substituted Clause 15 as amended in 1929 reads as follows:

15 Appeal to the High Court from Judges of the Court. And we do further ordain that an appeal shall he to the said High Court of Judicature at Bombay from the judgment (not being a judgment gassed 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 Section 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 Section 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall he to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 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 other 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.

In Clause 15 as substituted in 1927 the words "on or after the first day of February One thousand nine hundred and twenty-nine" did not find a place but were inserted by the said Letters Patent of 1929.

8. It may be pointed out that the provision in Clause 15 providing for an appeal from a judgment in a second appeal decided by a Judge of the High Court if such Judge declares that the case is a fit one for appeal has now become inoperative in view of Section 100A of the Code of Civil Procedure, 1908, which was inserted in that Code by the Code of Civil Procedure (Amendment) Act, 1976, under which no further appeal is to lie against the judgment of a single Judge of the High Court in a second appeal. The provision in Clause 15 providing for an appeal from the judgment of one judge of any Division Court has also become redundant and inoperative after the amendment of Clause 36 of the Letters Patent by the said Letters Patent dated December 9, 1927....

67. The next statute with which we are concerned is the Government of India Act, 1915 (5 and 6 Geo. V, Clause 61). This Act was amended in 1916 by the Government of India (Amendment) Act, 1916 (6 and 7 Geo. V, Clause 37), and principally by the Government of India Act, 1919 (9 and 10 Geo. V, Clause 101). The Government of India Act, 1915, as so amended, is, under Section 135 of that Act, to be cited as "the Government of India Act". The Government of India Act introduced a scheme of diarchy in the Provinces but the constitutional set-up still remained unitary. The Act of 1915 repealed several statutes including the High Courts Acts 1861, 1865 and 1911. Under Section 130, such repeal was inter alias not to affect "the validity of any law, charter, letters patent...under any enactment hereby repealed and in force at the commencement of" the Act of 1915. The provisions of the Government of India Act with which we are really concerned are those contained in Part IX thereof which...

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