1.Supreme Court in the case of Radhey Shyam and anr. v. Chhabi Nath and ors., (2015) 5 SCC as the said decision is distinguishable. According to learned counsel for the appellant, the said judgment is an authority for the proposition of law that against an order of the Civil Court, writ of certiorari will not lie under Article 226 of the Constitution of India whereas in the present case, order passed by the Criminal Court is challenged and prayer for writ of certiorari has been sought.
While tracing the history of prerogative writs, Constitutional provisions and long line decisions of the Supreme Court, Their Lordships observed –
“11. It is necessary to clarify that expression “judicial acts” is not meant to refer to judicial orders of civil courts as the matter before this Court arose out of the order of Election Tribunal and no direct decision of this Court, except Surya Dev Rai (supra), has been brought to our notice where writ of certiorari may have been issued against an order of a judicial court. In fact, when the question as to scope of jurisdiction arose in subsequent decisions, it was clarified that orders of judicial courts stood on different footing from the quasijudicial orders of authorities or tribunals.”
2.Noting that the writ of certiorari did not lie against a judicial order, it was observed : [ Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1 ].
“63. Whilst we are dealing with this aspect of the matter, we may incidentally refer to the relevant observations made by Halsbury on this point. “In the case of judgments of inferior courts of civil jurisdiction,” says Halsbury in the footnote,- ‘it has been suggested that certiorari might be granted to quash them for want of jurisdiction [Kemp v. Balne (1844), 1 Dow. & L. 885, at p. 887],
inasmuch as an error did not lie upon that ground. But there appears to be no reported case in which the judgment of an inferior court of civil jurisdiction has been quashed on certiorari, either for want of jurisdiction or on any other ground [Halsbury Laws of England Vol.I 1, p.129]”. The ultimate proposition is set out in the terms: “Certiorari does not lie to quash the judgments of inferior courts of civil jurisdiction.”
These observations would indicate that in England the judicial orders passed by civil courts of plenary jurisdiction in or in relation to matters brought before them are not held to be amenable to the jurisdiction to issue writs of certiorari.
3.In R. v. Chancellor of St. Edmundsburry and Ipswich Diocese, ex p White [(1945) 1 KBD 195] the question which arose was whether certiorari would lie from the Court of King’s Bench to an ecclesiastical Court; and the answer rendered by the court was that certiorari would not lie against the decision of an ecclesiastical court.
In dealing with this question, Wrottesley, L.J. has elaborately considered the history of the writ jurisdiction and has dealt with the question about the meaning of the word ‘inferior’ as applied to courts of law in England in discussing the problem as to the issue of the writ in regard to decisions of certain courts.
4.In Ujjam Bai v. State of U.P., AIR 1962 SC 1621, matter was referred to a Bench of seven Judges on the scope of writ of certiorari against an order of assessment under the provisions of Sales Tax law passed in violation of a fundamental right.
Majority of six Judges took the view that except an order under a void law or an ‘ultra vires’ or ‘without jurisdiction’ order, there could be no violation of fundamental right by a quasi-judicial order or a statutory authority and such order could not be challenged under Article 32. A writ of certiorari could however, lie against a patently erroneous order under Article 226.
“155. Before concluding it is necessary to advert to one matter which was just touched on in the course of the arguments as one which might be reserved for consideration when it actually arose, and this related to the question whether the decision or order of a regular ordinary Court of law as distinguished from a tribunal or quasi-judicial authority constituted or created under particular statutes could be complained of as violating a fundamental right.
It is a salutary principle that this Court should not pronounce on points which are not involved in the questions raised before it and that is the reason why I am not dealing with it in any fullness and am certainly not expressing any decided opinion on it. Without doing either however, I consider it proper to make these observations.
There is not any substantial identity between a Court of law adjudicating on the rights of parties in the lis before it and designed as the High Courts and this Court are to investigate inter alia whether any fundamental rights are infringed and vested with power to protect them, and quasi-judicial authorities which are created under particular statutes and with a view to implement and administer their provisions. I shall be content to leave the topic at this.”
5.In Mirajkar (supra), a nine Judge Bench judgment, a judicial order of High Court was challenged as being violative of fundamental right. This Court by majority held that a judicial order of a competent court could not violate a fundamental right. Even if there was incidental violation, it could not be held to be violative of fundamental right. Gajendragaddkar, CJ, observed :
“38. The argument that the impugned order affects the fundamental rights of the petitioners under Article 19(1), is based 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 at issue, and then applies the relevant law to the said facts.
Whether the findings of fact recorded by the Judge are right or wrong, and whether the conclusion of law drawn by 7 him suffers from any infirmity, can be considered 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.
If this basic and essential aspect of the judicial process is borne in mind, it would be plain that the judicial verdict pronounced by court in or in relation to a matter brought before it for its decision cannot be said to affect the fundamental rights of citizens under Article 19(1).”
The effect of the order would be that challenge to the order passed by the Criminal Court shall be examined in exercise of supervisory jurisdiction under Article 227 of the Constitution of India and not by way of writ petition under Article 226 of the Constitution of India.