Keshav Mohan and Another vs State of Assam

Manisana, J.—In this application u/s 482, Code of Criminal Procedure read with Article 226 of the Constitution of India the Petitioners have prayed for Bashing the FIR in Moranhat PS Case No 112 of 1990 (GR Case No. 926 of 1990) under Sections 3 and 4 of the Terrorist and Disruptive Activities (Prevention) Act, 1987, for short, ''the TADA Act''. The Petitioners Sarvashri Keshav Mohan and Dilip Phukan have been in jail after they were arrested in connection with the FIR case referred to above.

In Civil Rule No. 3 of 1991 (Girish Chandra v. Union of India) this Court has held that in a case involving arrest of a person on accusation of having committed an offence punishable under the TADA Act, the High Court has no jurisdiction to entertain an application u/s 482, Code of Criminal Procedure for quashing the FIR In that view of the matter, learned Counsel for the Petitioners has prayed for converting this application u/s 482. Code of Criminal Procedure to one under Article 226 of the Constitution.

Conversion may be made in exercise of the inherent powers of the Court. But the exercise of that power must be within clearly defined limits guided by rules of reason. In my judgment, the original proceeding and the converted proceeding must be of the same sort or type of legal proceeding, and the Court converting the proceeding must have the jurisdiction to hear the converted proceeding Thus, a civil appeal can be converted to a civil revision or vice versa; but, not a civil proceeding to a criminal proceeding. Let me now state the reasons. Civil appeal and revision are regulate by the Code of Civil Procedure. In Shankar Ramchandra Abhyankar Vs. Krishnaji Dattatreya Bapat, the Supreme Court has held:

Section 115 of the CPC circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of High Court as a superior Court. It is only one of the modes of exercising power conferred by the statute ; basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoiced and exercised in a wider and larger sense

The above decision indicates that the appeal and the revision are of the same sort or type of proceeding.

As regards the jurisdiction to hear the converted proceeding, if an appeal from an order arising out of a suit before the District Judge is later on found that a revision shall lie against that order the District Judge cannot convert the appeal to revision and hear the same as he has no jurisdiction to hoar revision u/s 115, Code of Civil Procedure. Let me take another instance. There are rules made by our High Court for hearing of the appeal and revision. Under the rules second appeal and revision arc heard by a Single Bench irrespective of the value of the suit, and first appeal is heard either by a Single Bench or by a Division Bench depending upon the value of the suit out of which the appeal arises. If a Single Bench converts a revision to a first appeal which can be heard by it, there will be no problem. But, if the Single Bench converts revision to first appeal which cannot be heard by a Single Bench the appeal is to be placed before a Division Bench. The Division Bench is, (sic) while dealing with appeal, of the opinion that the conversion of the revision to appeal by the Single Bench is not right, then an anomaly shall arise.

The question which, therefore, arises for consideration is whether the present application u/s 482 can be converted to one under Article 226. There are rules made by our High Court governing applications, orders or writs (other than in the nature of hebeas corpus) under Article 226 of the Constitution of India. Therefore, petition under Article 226 is to be modelled as provided under the rules and the procedure for carrying on the petition is regulated by the rules of the High Court. The petition under Article 226 is to be heard by a Division Bench, not by a single Bench. A proceeding u/s 482, Code of Criminal Procedure is governed by the Code of Criminal Procedure and is to be heard by a Single Bench. Therefore, the two proceedings are not of the same type of proceedings and I sitting singly cannot hear and dispose of the petition, if be converted to under Article 226. That apart, conversion is a discretionary matter For these reasons and also considering the facts and circumstances of the case I decline to convert this application u/s 482 to one under Article 226.

In the result, the petition is dismissed as not maintainable.