Criminal Application No.394 of 2011,Criminal Application No.424 of 2011,Criminal Writ Petition No.436 of 2011,Criminal Writ Petition No.452 of 2011

21st October, 2011

Petitioner Counsel: Shri AMOL DESHPANDE
Respondent Counsel: Mrs. DANGRE, Mr. R.B. PENDHARKAR with Shri BELSARE

Cases Cited:
Chhatru Shobraj Taleraj and others Vs. State of Maharashtra, 1978 Mh.L.J. 871 [Para 7,13,23,25,31]
Joseph Salvaraja Vs. State of Gujarat and others, 2011 ALL SCR 1601=(2011) 7 SCC 59 [Para 7]
Pandurang and others Vs. State of Maharashtra, 1986 Mh.L.J. 994 [Para 8,12]
Rahemat Khan Daulatkhan Pathan Vs. State of Maharashtra, 1997 ALL MR (Cri) 677=1997(1) Mh.L.J. 659 [Para 8]
Jonathan Samuel Solomon, 1973 Mh.L.J. 584 [Para 8]
Principal, Micky School Vs. State of Maharashtra and others, 2005(4) ALL MR 958=2006 [1] BCR 694 [Para 9]
Prabhakar Sadasheo Nandanwar Vs. State of Maharashtra and others, 2002 [4] BCR 710 [Para 9,24]
The Siemens Engineering and Manufacturing Co. of India ltd. Vs. The Union of India and another, 2008 [5] SCC 539 [Para 10]
State of Orissa Vs. Dhaniram Luhar, (2004) 5 SCC 568 [Para 10]
Chanda Impex Private Ltd. Vs. Commissioner of Customs, New Delhi, (2011) 7 SCC 289 [Para 10]
B.V. Nagesh and another Vs. H.V. Sreenivasa Murthy, 2010(6) ALL MR 928 (S.C.) [Para 10]
Janba Daulatrao Borkar Vs. Rajeshkumar Ramjiwan Agarwal, 1975 Mh.L.J. 746 [Para 10]
Sohanlal Vs. Satnam Singh and others, (1995) 1 SCC 760 [Para 10]
Hiru B. Barot Vs. IPCA Laboratories Ltd. and another, 2011(4) ALL MR 141=2011 (4) Mh.L.J. 120 [Para 10]
State of U.P. and another Vs. Synthetics and Chemicals Ltd and another, (1991) 4 SCC 139 [Para 11]
Synthetics & Chemicals Ltd. Vs. State of U.P., AIR 1990 SC 1927 [Para 11]
Arnit Das Vs. State of Bihar, 2000 ALL MR (Cri) 1403 (S.C.)=(2000) 5 SCC 488 [Para 11]
State of Orissa and another Vs. Mamata Mohanty, (2011) 3 SCC 436 [Para 11]
Suga Ram Vs. State of Rajasthan, 2007 ALL MR (Cri) 546 (S.C.)=(2006) 8 SCC 641 [Para 11]
Mayurram Subramanian Srinivasan Vs. CBI, 2006 ALL MR (Cri) 2679 (S.C.)=(2006) 5 SCC 752 [Para 11]
Dattaraj Nathuji Thaware Vs. State of Maharashtra and others, 2005(5) ALL MR 270 (S.C.)=2005 (5) Bom. C.R. 814 [Para 12]
Popular Muthiah Vs. State represented by Inspector of Police, 2006 ALL MR (Cri) 2335 (S.C.)=(2006) 7 SCC 296 [Para 12]
State of Maharashtra Vs. Prashram Jagannath Aute, 2007(5) ALL MR 711 (F.B.) [Para 13]
Shankar Ramchandra Abhyankar Vs . Krishnaji Dattatraya Bapat, AIR 1970 SC 1 [Para 14]
State through CBI Vs. Parmeshwaran Subramani and others, 2010 ALL MR (Cri) 326 (S.C.)=AIR 2010 SC 584 [Para 14]
Seth Chand Ratan Vs. Pandit Durgaprasad (D) by L.Rs., AIR 2003 SC 2736 [Para 15]
Narayandas Hiralalji Sarda and others Vs. State of Maharashtra and others, 2008 ALL MR (Cri) 2737=2009 (2) Mh.L.J. 426 [Para 15]
Rajkumar Shivhare Vs. Assistant Director, Directorate of Enforcement and another, 2010 ALL SCR 961=AIR 2010 SC 2239 [Para 15]
M/s. Pepsi Foods Ltd. Vs. Special Judicial Magistrate and others, 1998 ALL MR (Cri) 144 (S.C.)=AIR 1998 SC 128 (1) [Para 15,23]
Criminal Writ Petition No. 449 of 2005 Dt.16/12/2005 [Para 16,23,29,31]
D. Velusamy Vs. D. Patchaiamma, 2010 ALL SCR 2639=(2010) 10 SCC 469 [Para 17]
Municipal Committee, Patiala Vs. Model Town Residents Association, 2007 ALL SCR 2782=AIR 2007 SC 2844 [Para 17]
B. Premanand and others Vs. Mohan Koikal and others, (2011) 4 SCC 266 [Para 17]
Shamrao Shripat Tamgade Vs. State of Maharashtra and others, 2006(6) ALL MR 55=2006 (6) Mh. L.J. 524 [Para 17]
State of Rajasthan Vs. Prakash Chand and others, 1998 ALL MR (Cri) 1446 (S.C.)=(1998) 1 SCC 1 [Para 17]
State of Uttar Pradesh Vs. Neeraj Chaubey and others, 2011 ALL SCR 716=(2010) 10 SCC 320 [Para 17]
Jasbir Singh Vs. State of Punjab, 2007 ALL SCR 423=(2006) 8 SCC 294 [Para 17]
State of Haryana and others Vs. Ch. Bhajanlal and others, AIR 1992 SC 604 : (1991) (supp) 1 SCC 335 [Para 18,23]
Saurabh Anil Redij Vs. State of Maharashtra and another, 2010(3) ALL MR 738=2010 (3) Bom. Civil Reports 257 (vol.10) [Para 19]
State of Maharashtra Vs. Arun Gulab Gawali and others, 2010 ALL MR (Cri) 3263 (S.C.)=(2010) 9 SCC 701 [Para 20,23]
Mosaraf Hossain Khan Vs. Bhagheeratha Engg. Ltd. And others, 2006(2) ALL MR 140 (S.C.)=(2006) 3 SCC 658 [Para 20,23]
Advani Oerlikon Ltd. Vs. Machindra Govind Makasare and others, 2011(3) ALL MR 564 (F.B.)=2011 (2) Mh.L.J. 916 [Para 21,31]
Rajasthan Public Service Commission and another Vs. Harish Kumar Purohit and others, AIR 2003 SC 3476 [Para 21]
R.P. Kapoor Vs. State of Punjab, AIR 1960 SC 866 [Para 23]
M/s. Nagpur Cable Operator's Association .Vs. Commissioner of Police and another, AIR 1996 Bombay 180 [Para 29]

JUDGMENT

B.P. DHARMADHIKARI, J. :- Criminal Application No. 394/2011 has been filed under Section 482 of the Code of Criminal Procedure for quashing First Information Report dated 01.07.2011, for offences punishable under Section 341 of Indian Penal Code and Section 3[1][x] of the Scheduled Caste, Scheduled Tribe Prevention of Atrocities Act, vide Crime No. 250/2011 with prayer to direct the Police Authorities not to arrest the applicant and other appropriate relief. This Court issued notice on 28.07.2011 and granted adinterim relief. It was continued on 11.08.2011 until further orders. On 14.09.2011, the orders passed in Criminal Writ Petition No. 213/2011 on 18.07.2011 at Principal Seat have been considered by learned Single Judge and Registry has been directed to place the matter before the Division Bench. That is how this 482 application has come up before us.

2. Criminal Application No.424/2011, filed originally was under Section 482 of the Code of Criminal Procedure with similar prayers in respect of First Information Report No.207/2011 under Section 498, 328, read with Section 34 of Indian Penal Code. On 20.08.2011 the above mentioned order at Principal Seat has been looked into and Registry was directed to place the matter before the Division Bench. The learned Counsel then sought permission to amend the cause title and to insert words "and Article 226 of the Constitution of India". Leave to amend accordingly was also granted on 20.08.2011 by learned Single Judge.

3. In Criminal Writ Petition No. 436/2011, proceedings filed are under Articles 226 and 227 of the Constitution of India, read with Section 482 of the Code of Criminal Procedure. Prayer is to set aside the first information report registered vide crime no.54/2011 for offence punishable under Sections 406, 418, 420, 468, 471 and Section34, 109 and 120-B of Indian Penal Code. Matter has been directly listed before the Division Bench as per Bombay High Court Appellate Side Rules,1960.

4. Criminal Writ Petition No. 452/2011 is also under Articles 226 and 227 of the Constitution of India, read with Section 482 of the Criminal Procedure Code, with prayer to quash and set aside the first information report dated 17.06.2011 registered vide Crime No. 86/2011 for offence punishable under Sections 406, 408 read with Section 34 of the Indian Penal Code. The Registry has placed the matter as per Bombay High Court Appellate Side Rules,1960 before the Division Bench.

5. Applicant as also nonapplicant in Criminal Application No. 394/2011 has contended that his application being under Section 482 of Criminal Procedure Code deserves to be considered by learned Single Judge only, and the order dated 18.07.2011 passed at principal seat cannot be applied as precedent in the matter. Similar challenge has been raised by other applicants. In view of the grievances made and request of High Court Bar Association, the Bar Association was permitted to inform all interested Advocates to assist this Court in resolving the alleged confusion created by 18.07.2011 order. Accordingly we have heard the respective Advocates in all these 4 matters together in this respect.

6. Opening the arguments and opposing the consideration by the Division Bench, Shri R.B. Pendharkar, learned Senior Counsel with Shri Belsare, learned Counsel for respondent no.2 in Criminal Application No.394/2011 has contended that provision of Chapter I Rule 1 and Rule 2 of the Bombay High Court Appellate Side Rules, 1960 (hereinafter referred to as "the Appellate Side Rules" for short) are very clear in this respect. Attention is invited to Part-II and particularly various clauses thereof which give power to learned Single Judge of this Court to point out that Article 227 or Section 482 challenges are placed before the learned Single Judge only by these Rules. It is urged that any Bench of High Court dealing with Criminal matters can exercise powers under Section 482 of Criminal Procedure Code suo motu. In this background, orders dated 18.07.2011 passed at Mumbai Bench are commented upon with contention that, the same cannot be viewed as an adjudication or decision binding upon the learned Single Judge or then Division Bench of this Court. The view recorded therein is stated to be not correct and per incuriam, as no arguments on the issue were heard, points falling for determination have not been framed and relevant provisions of Appellate Side Rules or then earlier binding precedents holding the field, have not been noted. It is urged that ,it is no more than an administrative order. It is also contended that only reason is, the view or opinion of that Division Bench and in this background that view or opinion, is not sufficient to sustain it. It is contended that the power to quash and set aside the FIR/CR is conferred by the said order upon the Division Bench only, while power to grant relief in relation to more serious matters like quashing of judicial proceedings which is superior in nature, is continued with Single Judge.

7. The judgment of Division Bench of this Court reported at 1978 Mh.L.J. 871 (Chhatru Shobraj Taleraj and others .vrs. State of Maharashtra), is relied upon to contend that binding law laid down therein is clearly missed or overlooked. Some orders passed earlier, are also pressed into service to show that powers under Section 482, have been utilized to set aside the first information report, as also charge sheet. The judgment of Hon'ble Apex Court reported at (2011) 7 SCC 59 : [2011 ALL SCR 1601] (Joseph Salvaraja .vrs. State of Gujarat and others), particularly paragraph nos. 6, 18, 19 and 20 are read out to explain the scope of Section 482 with specific attention to fact that there the matter arose out of judgment delivered by the learned Single Judge of Gujarat High Court.

8. Judgment of Hon'ble Apex Court reported at 1986 Mh.L.J. 994 (Pandurang and others .vrs. State of Maharashtra ), is relied upon to contend that the Single Judge of High Court cannot decide any matter which according to the Appellate Side Rules, must be looked into by the Division Bench, and for that purpose amendment to Appellate Side Rules was felt necessary and is only solution. Division Bench judgment reported at 1997 (1) Mh.L.J. 659 : [1997 ALL MR (Cri) 677] (Rahemat Khan Daulatkhan Pathan vrs. State of Maharashtra) and 1973 Mh.L.J. 584 (Jonathan Samuel Solomon), are also pressed into service for the same purpose.

9. To demonstrate how Courts have approached in past to similar situations where the Appellate Side Rules required interpretation, attention is invited to judgment reported at 2006 [1] BCR 694 : [2005(4) ALL MR 958] (Principal, Micky School .vs. State of Maharashtra and others), and 2002 [4] BCR 710 (Prabhakar Sadasheo Nandanwar .vrs. State of Maharashtra and others) and judgment delivered by us in Writ Petition No. 4837/2009, particularly paragraph no.10 therein, with contention that only three categories mentioned in part-II of Rule 2[j] of ChapterI stands excluded from the jurisdiction of learned Single Judge. It is also contended that the word "may" used and as appearing in ChapterI Rule 2 in its opening part needs to be construed as "shall".

10. 2008 [5] SCC 539 and AIR 1976 SC 1785 (The Siemens Engineering and Manufacturing Co. of India ltd. .vrs. The Union of India and another) are pressed into service to show what constitutes a "decision" in the eye of law. Emphasis is given on need to record reasons and effect of its absence. For very same purpose judgments reported at (2004) 5 SCC 568 (State of Orissa .vrs. Dhaniram Luhar), (2011) 7 SCC 289 (Chanda Impex Private Ltd. .vrs. Commissioner of Customs, New Delhi), 2010(6) ALL MR 928 (B.V. Nagesh and another .vrs. H,V. Sreenivasa Murthy), 1975 Mh.L.J. 746 (Janba Daulatrao Borkar .vrs. Rajeshkumar Ramjiwan Agarwal ) and (1995) 1 SCC 760 (Sohanlal .vrs. Satnam Singh and others ), are also relied upon. Judgment reported at 2011 (4) Mh.L.J. 120 : [2011(4) ALL MR 141] (Hiru B. Barot .vrs. IPCA Laboratories Ltd. and another), particularly paragraph no.16 is relied upon to demonstrate what are the elements of and what the process of "adjudication" contemplates.

11. Judgment reported at (1991) 4 SCC 139 (State of U.P. and another .vrs. Synthetics and Chemicals Ltd and another), delivered by the Hon'ble 2 Judges of Hon'ble Apex Court is pressed into service to show how the view of Hon'ble 7 Judges reported at AIR 1990 SC 1927 (Synthetics & Chemicals Ltd. .vrs. State of U.P.), is found per incuriam. It is urged that view taken in order dated 18.07.2011 at Mumbai also suffers from vice of sub silentio as it fails to note and decide the real issue and controversy as per law. (2000) 5 SCC 488 : [2000 ALL MR (Cri) 1403 (S.C.)] (Arnit Das .vrs. State of Bihar), (2011) 3 SCC 436 (State of Orissa and another .vrs. Mamata Mohanty), (2006) 8 SCC 641 : [2007 ALL MR (Cri) 546 (S.C.)] (Suga Ram .vrs. State of Rajasthan) and (2006) 5 SCC 752 : [2006 ALL MR (Cri) 2679 (S.C.)] (Mayurram Subramanian Srinivasan .vrs. CBI ), are relied upon to buttress this contention.

12. Judgment of Hon'ble Apex Court reported at 2005 (5) Bom.C.R. 814 : [2005(5) ALL MR 270 (S.C.)] (Dattaraj Nathuji Thaware .vrs. State of Maharashtra and others (paragraph no.11), 1986 Mh.L.J. 994 (Pandurang and others .vrs. State of Maharashtra) (supra), are pressed into service to urge that learned Single Judge is entrusted with certain jurisdictions by High Court Appellate Side Rules, to see that two Judges can function independently and discharge judicial work and save time. Judgment reported at (2006) 7 SCC 296 : [2006 ALL MR (Cri) 2335 (S.C.)] (Popular Muthiah .vrs. State represented by Inspector of Police), is relied upon to contend that cognizance of appropriate cases suo motu under Section 482 of the Code is well recognized position.

13. As order dated 18.07.2011 at principal seat does not record arguments of rival sides, as controversy falling for decision is not stated, as Appellate Side Rules and 1978 Division Bench judgment in case of Chhatru Shobraj Taleraj and others .vrs. State of Maharashtra (supra), are also not looked into and no "reasons" are recorded, the learned senior advocate states that said order could not have been used to place the matter before this Bench by learned Single Judge. It is contended that position founded on Appellate Side Rules must continue and judgment reported at 2007(5) ALL MR 711 (F.B.) (State of Maharashtra Vs. Prashram Jagannath Aute), is relied upon to contend that no reference to larger Bench is necessary in this matter.

14. Shri R.L. Khapre, learned Counsel for applicant in Criminal Application No. 394/2011 has also supported the arguments of Shri Pendharkar, learned Senior Counsel. He contends that High Court Appellate Side Rules are statutory and the order dated 18.07.2011 passed at Mumbai attempts to create a situation contrary to it. Such legislation by Court is not possible. Judgment delivered by the Hon'ble Apex Court on non-permissibility of constitution of Grievance Committee for redressal of grievances of Shikshan Sevaks by judicial exercise, is relied upon to urge that the scheme in Appellate Side Rules can not be amended by such judicial order. Similarly to show that when remedy under Section 482 of Criminal Procedure Code is available, recourse to remedy under Article 226 for same purpose is not permissible and to urge that recourse to such constitutional remedy must be held to be barred, he has placed reliance upon judgment reported at AIR 1970 SC 1 (Shankar Ramchandra Abhyankar .vrs . Krishnaji Dattatraya Bapat). He has also relied upon the judgment reported at AIR 2010 SC 584 : [2010 ALL MR (Cri) 326 (S.C.)] (State through CBI .vrs. Parmeshwaran Subramani and others) (paragraph nos. 15 and 18), to contend that in such process, Courts by judgment cannot add words.

15. AIR 2003 SC 2736 (Seth Chand Ratan .vrs. Pandit Durgaprasad (D) by L.Rs.), 2009 (2) Mh.L.J. 426 : [2008 ALL MR (Cri) 2737] (Narayandas Hiralalji Sarda and others .vrs. State of Maharashtra and others), AIR 2010 SC 2239 : [2010 ALL SCR 961] (Rajkumar Shivhare .vrs. Assistant Director, Directorate of Enforcement and another), are relied upon by him to show that when alternative remedy is found available, how recourse to Article 226 is discouraged. AIR 1998 SC 128 (1) : [1998 ALL MR (Cri) 144 (S.C.)] (M/s. Pepsi Foods Ltd. .vrs. Special Judicial Magistrate and others) is shown to urge that Section 482 of Criminal Procedure Code, is itself a recognized remedy. He has contended that in view of this position, availability of Section 482 remedy must be held as absolute bar to invocation of Article 226 in criminal matters.

16. Shri Anil Mardikar, learned Counsel in order to assist the Court has pointed out that similar controversy had arisen before the Division Bench of this Court at Aurangabad in Criminal Writ Petition No. 449/2005 and how it has been resolved in consonance with the Appellate Side Rules on 16.12.2005. He contends that this view of Aurangabad Division Bench has not been looked into by the Bench which decided Criminal Writ Petition No. 213/2011 at Mumbai on 18.11.2007. He also states that the remedy under Section 482 of Criminal Procedure Code is itself an independent remedy and it, therefore, absolutely bars remedy under Article 226 of the Constitution of India.

17. Shri S. Dewani, learned Counsel has contended that the orders at Mumbai dated 18.07.2011 amend the provisions of Appellate Side Rules, and this cannot be done. He has relied upon judgments reported at (2010) 10 SCC 469 : [2010 ALL SCR 2639] (D. Velusamy vrs. D. Patchaiamma) (Paragraph no.32 and 33), AIR 2007 SC 2844 : [2007 ALL SCR 2782] (Municipal Committee, Patiala .vrs. Model Town Residents Association) (Paragraph no.31); (2011) 4 SCC 266 (B. Premanand and others .vrs. Mohan Koikal and others ) (Paragraph nos.10 and 13) and 2006 (6) Mh. L.J. 524 : [2006(6) ALL MR 55] (Shamrao Shripat Tamgade .vrs. State of Maharashtra and others) (Paragraph no.24). He has also contended that the said order indirectly adds to or amends the roaster prepared by the Hon'ble the Chief Justice and this is not legally possible. Support is being taken from the judgment reported at (1998) 1 SCC 1 : [1998 ALL MR (Cri) 1446 (S.C.)] (State of Rajasthan .vrs. Prakash Chand and others), (2010) 10 SCC 320 : [2011 ALL SCR 716] (State of Uttar Pradesh .vrs. Neeraj Chaubey and others) and (2006) 8 SCC 294 : [2007 ALL SCR 423] (Jasbir Singh .vrs. State of Punjab).

18. Shri Amol Mardikar, learned Counsel has relied upon the guidelines laid down by the Hon'ble Apex Court in AIR 1992 SC 604 (State of Haryana and others .vrs. Ch. Bhajanlal and others) and Article 141 of the Constitution of India to urge that nothing to the contrary can be done by this Court.

19. Shri Kurhekar, learned Counsel has relied upon judgment reported at 2010 (3) Bom. Civil Reports 257 (vol.10) : [2010(3) ALL MR 738] (Saurabh Anil Redij .vrs. State of Maharashtra and another), to urge that the view taken on 18.07.2011 by the Division Bench of this Court is not correct.

20. Mrs. Dangre, learned Additional Government Pleader has contended that the order dated 18.07.2011 cannot be viewed as suffering from vice of sub-silentio. She has contended that by taking recourse to the powers under Article 227, FIR/CR cannot be quashed and in this background the Division Bench has treated mention of Article 227 in cause title, as reference to Article 226, and hence the Registry has been directed to list the matter before the Division Bench. Only to assist this Court, she has invited attention to the observations of Hon'ble Apex Court reported at (2010) 9 SCC 701 : [2010 ALL MR (Cri) 3263 (S.C.)] (State of Maharashtra .vrs. Arun Gulab Gawali and others) (paragraph no.3) and (2006) 3 SCC 658 : [2006(2) ALL MR 140 (S.C.)] (Mosaraf Hossain Khan .vrs. Bhagheeratha Engg. Ltd. And others) (paragraph No.25). She has also urged that last judgment considers the distinction between Articles 226 and 227 in so far as criminal matters are concerned. It is her contention that, if relief can be obtained under Section 482 of Criminal Procedure Code, recourse to Article 226 must be held as barred.

21. Learned Senior Advocate in his brief reply has invited attention to Full Bench judgment of this Court reported at 2011 (2) Mh.L.J. 916 : [2011(3) ALL MR 564 (F.B.)] (Advani Oerlikon Ltd. .vrs. Machindra Govind Makasare and others) at page 923, and contended that as per the law as laid down therein, the Single Judge of this Court is competent to exercise powers under Article 226 of the Constitution of India also. Principles as laid down by this Full Bench judgment and appearing at page no.934 of the report are also pressed into service. The learned Senior Counsel has contended that the label of petition is not decisive even in criminal matters, but it is the prayer and substantive material therein which must be looked into. Inviting attention to the provisions of Section 154, 172 and 173 of the Code of Criminal Procedure, it is contended that cognizance of a complaint taken by the Police Officer is a quasi judicial act which must be held amenable to jurisdiction of learned Single Judge in the light of provisions contained in Chapter XVII Rule 18[3] of the Appellate Side Rules. Our attention has also been drawn to judgment reported at AIR 2003 SC 3476 (Rajasthan Public Service Commission and another .vrs. Harish Kumar Purohit and others)(para 12), to urge that if, a different view is to be taken, reference to larger bench is called for.

22. We place in on record that the learned Senior Counsel as also some of the learned Counsel have urged that as there is no intra court appeal available in criminal matters, this controversy is only academic for litigants, but of important in so far as the discipline and decorum or forum are concerned. The learned Single Judge has relied upon the observations made by the Division Bench at Mumbai in paragraph no.5 of it's order dated 18.07.2011, while directing matters to be placed before the Division Bench. Said paragraph no.5 is reproduced below :

"5. In our view, Criminal Writ Petition No.3011 of 2010 could not have been filed under Article 227 of the Constitution of India read with Section 482 of the Cr.P.C., when it is for quashing of CR, and it has also been seen that because the petition was filed under Article 227 of Constitution of India, it came to be placed before the Single Bench. We direct the Registrar (Judicial) to ensure that the petitions for quashment are placed before the Division Bench or Single Bench based solely on the reliefs prayed for, and if the petition prays for quashing of CR/FIR, it must be placed before the Division Bench notwithstanding that it is filed under Article 227 of the Constitution of India, and if the petition prays for quashing of criminal proceedings pending before the Court below, it ought to be listed before the Single Bench."

The scope of jurisdiction available under Section 482 of the Criminal Procedure Code or then under Article 226 of the Constitution of India, is not in dispute before us. At the fag end of his reply argument, learned Senior Counsel has attempted to urge that jurisdiction under Article 226 to issue writ of certiorari and prohibition is available to learned Single Judge even in criminal matters because of Chapter XVII Rule 18 [3] of the Appellate Side Rules. We will consider this contention little later.

23. Judgment in case of M/s. Pepsi Foods Ltd. .vrs. Special Judicial Magistrate and others (supra), is delivered by Hon'ble Supreme Court in which in paragraph no.29, the Hon'ble Supreme Court has observed that a Magistrate can discharge the accused at any stage of trial, if he considers the charge to be groundless and that does not mean that accused cannot approach High Court under Section 482 of the Criminal Procedure Code or Article 227 to have proceedings quashed against him, when complaint does not make out any case. In Mosaraf Hossain Khan .vrs. Bhagheeratha Engg. Ltd. and others [2006(2) ALL MR 140 (S.C.)] (supra), in paragraph No.25 the Hon'ble Apex Court has found that the High Court may in exercise of its extra ordinary writ jurisdiction interfere in Criminal matters but, then interference with an order of Magistrate taking cognizance under Article 190 of the Code stands somewhat on different footing, as such order can form subject of revision jurisdiction as well as of application invoking inherent jurisdiction of High Court. It is also observed that a writ of certiorari ordinarily cannot be issued by a writ Court under Article 226 of the Constitution of India against a judicial officer. In State of Maharashtra .vrs. Arun Gulab Gawali and others [2010 ALL MR (Cri) 3263 (S.C.)] (supra), the Hon'ble Apex Court has considered the scope of judicial review and in the process in paragraph no.13, observed that power to quash criminal proceedings must be exercised sparingly with circumspection and in rarest of rare cases. The extra ordinary and inherent powers of High Court do not confer an arbitrary jurisdiction on Court. The provisions of Articles 226, 227 and Section 482 of the Code of Criminal Procedure are held to be a device to advance justice and not to frustrate it. The power of judicial review is discretionary to be exercised to prevent miscarriage of justice and for correcting some grave error. It is also noted that the guidelines for exercise of inherent powers or principles therefor are laid down in judgments reported at AIR 1960 SC 866 (R.P. Kapoor .vrs. State of Punjab) and (1991)(supp) 1 SCC 335 (State of Haryana and others .vrs. Ch. Bhajanlal and others). It is also mentioned by the Hon'ble Apex Court that types of cases mentioned therein are not exhaustive, but only illustrative. The Division Bench of this Court at Aurangabad in Criminal Writ Petition No. 449/2005 have made similar observations in paragraph nos. 6, 8 and 9. Even in judgment reported in case of Chhatru Shobraj Taleraj and others .vrs. State of Maharashtra (supra), the Division Bench ruling on which the learned Senior Counsel has placed reliance, notices this scope in paragraph no.5. It therefore, appears that recourse to Section 482 of Criminal Procedure Code is also viewed as a remedy available to aggrieved person and which normally bars recourse to Article 226 of the Constitution of India.

24. This brings us to consideration of provisions of Appellate Side Rules. In Prabhakar Sadasheo Nandanwar .vrs. State of Maharashtra and others (supra), the Division Bench of this Court in paragraph no.8 has observed that because of heavy work load and large number of litigations ,the work was required to be distributed. Number of cases can be conveniently decided by the Single Judge so that two Judges become available to do that job with equal ability. It is noted that therefore, an exception in Rule 18 Chapter XVII of the Appellate Side Rules has been created to normal consideration by Division Court. The question, there arose out of the challenge to order of caste verification committee invalidating the caste claim. The Division Bench therefore, was not required to evaluate effect of provisions in Chapter I, particularly Rule 2 Part-II of the Appellate Side Rules.

25. Chhatru Shobraj Taleraj and others .vrs. State of Maharashtra (supra), also observes in paragraph no.18 that Section 482 applications are to be looked into by the learned Single Judge. The controversy there was entirely different. We make reference to it at this stage. It's opening paragraph itself shows that the learned Single Judge earlier passed an order in Criminal Application No. 2659/1976 on 12.10.1976 to place the matter before the Division Bench. The Public Prosecutor contended that application under section 482 was required to be placed for hearing before the Division Bench and not before the Single Judge and Office (Registry) informed that such applications were being placed before the Division bench and not before the Single Judge. One of the contentions raised before the Division Bench by the State Government was that such application needed to be dealt with by the Division Bench, though it related to judgment delivered by the learned Single Judge because of practice. In paragraph no.8, the Division Bench has noted that power under Section 482 of the Criminal Procedure Code is available also to Single Judge and to Division Court. In paragraph no.12 after referring to the provisions of Chapter- I of the Appellate Side Rules , particularly its Rule 2 is looked into. It is observed that when ever there is a specific provision in the Rule, jurisdiction has to be exercised in the manner as provided by such Rule, and if there is no such provision, then the Division Court consisting of two or more Judges has to exercise that power. Thereafter reference is made to clause [h] appearing in its part-II of Rule 2 to gather that applications of nature involved before it required consideration by the Single Judge only. In paragraph no.18 there is discussion about exercise of inherent powers and Division Bench has found that when Letters Patent Appeal do not provide for any intra court proceeding in criminal matters, by taking recourse to section 482 of the Code, judgment of single Judge of High Court cannot be called in question before the Division Bench. Discussion in this judgment shows that there was no debate there about maintainability of application under said section 482 read with either Article 226 or Article 227 before the learned Single Judge of this Court. It needs to be mentioned that as per Chapter-I Rule 2 Part-II Clause [j] of the Appellate Side Rules, all applications under Section 482 of the Criminal Procedure Code, except those seeking review, modification or setting aside of any orders passed by the Division Bench, lie before the Single Judge of this Court.

26. Unreported order of Division Bench of this Court at Aurangabad delivered in Criminal Writ Petition No. 449/2005 on 16.12.2005 shows that the same has been delivered in Writ Petition styled as one under Article 226 read with Section 482 of the Criminal Procedure Code and circulated before the Division Bench. Contention of the applicant was Single Judge sitting on criminal side cannot hear writ petitions under Articles 226 as litigant can invoke it to for quashing a FIR and consequential investigation. Division Bench did not approve the petitioner's arguments about simultaneous availability of three contingencies to enable a recourse to section 482 of the Criminal Procedure Code, and held 3 cases covered by Section 482 and those requirements are to be construed disjunctively. Its third clause "otherwise to secure ends of justice" confers unlimited inherent powers to interfere in FIR and investigation in pursuance thereof which is a proceedings ,if actions of investigating agency are malafide. Such FIR or investigation forms subject matter of scrutiny under S.482 because of this clause. The said Division Bench therefore, rejected the arguments that Section 482 does not provide an alternative efficacious remedy. It is also noted that cases wherein remedy under section 482 of the Code may be found inadequate, would be very rare and few. Quashment of FIR is found to be not one such exceptional relief. It has been noted that the Division Bench has to be slow in entertaining a writ petition for which appropriate relief can be given by Single Judge. At the end of paragraph no.9, it has been concluded that said writ petition under Article 226 can be entertained in "very very exceptional circumstances". The said Division Bench, therefore, held that writ petition as filed before it invoking powers under Article 226 needed to be heard as an application under Section 482 of the Criminal Procedure Code by the learned Single Judge. As this order of division bench is not reported, the Division Bench at Mumbai on 18.07.2011 had no occasion to consider this exposition.

27. The learned Senior Counsel before us has attempted to contend that the provisions of Chapter XVII Rule 18[3] of the Appellate Side Rules, permit learned Single Judge of this Court to exercise powers under Article 226. It is also contended that the police officer taking cognizance of a complaint exercise quasi judicial powers and hence the said sub-rule [3] of Rule 18 is attracted. Sub-rule [3] of Rule 18 contemplates challenge before the learned Single Judge to an order passed by any quasi judicial authority. It has not been demonstrated as to how the police officer who registers criminal complaint and undertakes investigation can be said to be exercising quasi judicial powers. As per settled procedure, adjudication starts only after his investigation is over and before the court of law. Not only this, explanation at the end of Rule 18 defines "order" to mean any order passed by any judicial or quasi judicial authority "empowered to adjudicate". Which provision in Criminal Procedure Code or any other law empowers the investigating officer to adjudicate is not pointed out. It is to be noted that after completing his investigation the said officer submits his report to the competent Magistrate as per Section 173 of the Criminal Procedure Code and the adjudication begins thereafter. Till that adjudication(prosecution) returns a finding of guilt, the person charged is presumed innocent. Only investigation does not deprive him of his rights and liberties. We therefore, do not find any substance in this contention of learned Senior Counsel.

28. Moreover Rule 18 of Chapter XVII deals with the powers of Single Judge to dispose of application under Articles 226 and 227 or Article 227. Chapter I Rule 2 Part-II enlists the criminal matters which can be disposed of by Single Judge. It's clause [i] specifically deals with "application under Article 227 of the Constitution of India" challenging orders and decision of courts constituted under the code of Criminal Procedure. It is, therefore, obvious that having already provided and placed challenge in criminal matters under Article 227 before the Single Judge of this Court, it cannot be said that again a provision has been made therefor in Chapter XVII Rule 18(3). Even if such a provision is to be presumed to have been made, it would be a general provision and because of specific mention of orders and decision of courts constituted under the Code of Criminal Procedure in clause [i] of Rule 2 of Chapter-I, it is obvious that Article 227 challenge must be placed before the learned Single Judge of this Court. Having made this provision in Part-II of Rule 2, it cannot be accepted that scheme in Chapter XVII Rule 18(3) can be imported for such purpose and to contend that challenge under Article 226 in criminal matters can be looked into by learned Single Judge. Chapter XVII Rule 18(3) of Appellate Side Rules clearly envisages only civil disputes for it to operate.

29. Here it is necessary to point out the Division Bench judgment of this Court reported at AIR 1996 Bombay 180 (M/s. Nagpur Cable Operator's Association .vrs. Commissioner of Police and another) where distinction between Civil and Criminal petitions under Articles 226 and 227 of the Constitution of India has been gone into. In paragraph no.21 while recording its conclusions, the said Division Bench has observed that all applications under Article 227 of the Constitution challenging the orders and decision of the courts constituted under Criminal Procedure Code are dealt with on the side of criminal business of Appellate Side Rules of this Court. It is also held that the said clause [i] of Part-II of Rule 2 of Chapter -I is not exception. The provisions of Rule 2[B] of Chapter-I are then taken note of. Said Rule 2[B] states that all petitions/applications under Articles 226 and 227 of the Constitution of India arising out of or relating to the order of penalty or confiscation or an order in the nature thereof or otherwise of penal character and passed under any special statute shall be heard and decided by the Division Bench hearing Writ Petitions. It is, therefore, obvious that even arguments of learned Senior Counsel which runs contrary to Rule 2 and 2[B], cannot be accepted. The position as laid down by the Division Bench of this Court at Aurangabad in Criminal Writ Petition No. 449/2005, needs to be maintained and implemented.

30. This brings us to the consideration of the order of Division Bench dated 18.07.2011 in Criminal Writ Petition No.213/2011. Paragraph no.5 of the said order is already reproduced by us above. We do not find facts very relevant. However, it can be seen that Criminal Writ Petition No.3011/2010 challenged two separate C.Rs. for very same incident and prayed for quashing of the subsequent C.R.No.7/2010. Complainant who filed the police report was petitioner in Criminal Writ Petition No.213/2011 and he had prayed for a transfer of investigation in C.R.Nos. 5 and 7 of 2010. Discussions in paragraph no.6 onwards of said order show that prayer to transfer investigation was rendered infructuous and Stale assured to club C.R.Nos. 5 and 7 of 2010 and to give a common final report. Those prayers therefore also did not survive.

31. That Criminal Writ Petition No.3011/2010 was filed under Article 227 of the Constitution of India, read with Section 482 of the Code of Criminal Procedure. Division Bench at Bombay found that because of prayer to quash C.R. contained therein, and as petition was filed under Article 227 of the Constitution of India, it came to be placed before the Single Judge. Division Bench has then proceeded to direct the Registrar (Judicial) to ensure that such petitions for quashment are placed before Division Bench or Single Bench as per reliefs prayed for therein and if the prayer in petition is for quashing of C.R./FIR, it must be placed before the Division Bench, though it mentions Article 227. This clearly shows that the observations are being made and directions are issued in the light of the settled law and also with scheme of the Appellate Side Rules in mind. As CR or FIR cannot be subjected to challenge under Article 227 of the Constitution of India and Single Judge of this Court cannot issue a writ of certiorari or prohibition for said purpose, these observations/directions appear. This becomes apparent from the last sentence of paragraph no.5 where the said Division Bench has stated that if such petition prays for quashing of criminal proceedings pending before the Court below, it ought to be listed before the Single Bench. Thus, again the impact of Appellate Side Rules on consideration of issue by Division Bench is apparent. The learned Senior Counsel has also invited our attention to the Full Bench judgment of this Court in case of Advani Oerlikon Ltd. .vrs. Machindra Govind Makasare and others [2011(3) ALL MR 564 (F.B.)] (supra), which considers the law on the point of maintainability of Letters Patent Appeal against orders passed in matters under Chapter XVII Rule 18 of the Appellate Side Rules. Label of application i.e. either as under Article 226 or Article 227 of Constitution of India is held not determinative by said Full Bench and test applied is, whether facts justified recourse to Article 226 of the Constitution of India. The same logic also holds good in criminal matters covered under Chapter -I Rule 2 Part-II and Rule 2[B]. The Division Bench at Bombay was not deciding the controversy on merits and only to further said scheme apparent from the Appellate Side Rules and various judgments noted by us above, it issued necessary directions to Registry. Those guidelines do not run contrary either to Appellate Side Rules or to any binding precedent. Though there is no reference in it to judgment in case of Chhatru Shobraj Taleraj and others .vrs. State of Maharashtra (supra), or to order of the Division Bench at Aurangabad in Writ Petition No. 449/2005, directions therein do not militate with said judgments. None of the rights of parties are violated. It is open for the parties to urge before the concerned Single Bench or Division Bench Court that their matter needed to be placed before appropriate Bench as per provisions of Appellate Side Rules. That right is not taken away because of orders of Division Bench at Bombay passed in Criminal Writ Petition No. 213/2011 on 18.07.2011 . The Registry cannot decide whether relief of quashment of FIR/Cr as prayed for can be granted under Article 227 of the Constitution of India or not, and hence, Division Bench at Bombay has taken necessary steps only to safe guard the interest of litigants. There is nothing in paragraph no.5 of its order, or then in any other paragraph to hold that application under Section 482 for quashing CR/FIR cannot be entertained by learned Single Judge of this Court. The orders or directions mentioned supra issued at Nagpur to list Criminal Applications filed under Section 482 of Criminal Procedure Code before Division Bench are therefore, not in accordance with said order dated 18/7/2011 or the provisions of High Court Appellate Side Rules. If along with Section 482 of Criminal Procedure Code, Articles 226 or 227 of the Constitution is invoked and prayer is to quash CR/ FIR, Registry has to place the matter before appropriate Division Bench dealing with Criminal cases as per Rules. It is that Division Bench which then can apply its mind in the light of the observations made by the Aurangabad Bench in Criminal Writ Petition No. 449/2005 and pass appropriate orders. This situation emerging from Bombay High Court Appellate Side Rules has not been altered by order dated 18.7.2011 of Bombay bench.

32. In view of this discussion, we are unable to hold that the directions issued by the Division Bench at Mumbai are without any reasons. The constant undercurrent of scheme of High Court Appellate Side Rules can be perceived by anybody acquainted with it. The directions issued by Bombay Division bench are for Registry and Lawyers who are well versed with these provisions and as contended by learned Senior Advocate, said order is really not for litigants. The directions are meant for its implementation and understanding by the Registry of this Court and by the learned Advocates. The same therefore can not be viewed by ignoring the provisions of either the Appellate Side Rules or the law as well settled. It was not necessary in this situation for said Division Bench to make reference in detail either to scheme of Appellate Side Rules or to the various judgments. We are therefore, not in a position to hold that the said directions suffers from vice or errors like per incuriam or sub silentio. As we do not see any conflict of views , there is no question of reference to Larger Bench. In the light of discussion undertaken above, we do not find it necessary to refer to various judgments to which our attention has been invited by the respective learned Counsel.

33. We accordingly direct the Registry to place Criminal Application No. 394/2011 for its further consideration before the learned Single Judge. Criminal Application No.424/2011 has been allowed to be amended to mention Article 226 of the Constitution of India and hence, Registry has to place it before appropriate Division Bench. Criminal Writ Petition Nos. 436/2011 and 452/2011 are filed under Articles 226 and 227 of the Constitution of India read with Section 482 of the Criminal Procedure Code. Registry has to place these Criminal Writ Petitions before appropriate Division Bench dealing with Criminal matters. These directions are in accordance with paragraph no.5 of the orders of the Division Bench at Mumbai. Registry to act accordingly.

Ordered accordingly.