BAGH DAI Vs. STATE OF J&K AND ORS.

JUDGEMENT

(1.) Through the medium of instant petition, petitioner has invoked writ jurisdiction of this Court under Articles 226 and 227 of the Constitution of India read with Sections 103 and 104 of the Constitution of Jammu and Kashmir as also provisions of 561-A and 561-B Cr.P.C. seeking recording of statement of the petitioner by a Judicial Magistrate under Section 164-A Cr.P.C. in FIR No. 07/2014 dated 16.02.2014, registered under Sections 354, 341, 376(2)(g) RPC of Police Station, Panchari, Udhampur and commanding the respondent No. 2 to investigate the case in a fair manner on the basis of such statement. The statement of prosecutrix-Bagh Dai has been recorded in the Court of learned Munsiff Mobile Magistrate (Traffic) Udhampur in terms of provision of 164-A Cr.P.C. on 08.03.2014, wherein she has reiterated the allegations of gang rape against three accused who are claimed to be have been identified by Mohd. Yaqoob who happened to pass by the place of occurrence along with a woman and had chased the accused to ascertain their identify. This statement is not materially different from the allegations leveled in the FIR and the version disclosed before learned Judicial Magistrate is in consonance with the allegations of gang-rape in the FIR. It is also admitted case of the parties that the prosecutrix was produced by the Investigating Officer before learned Judicial Magistrate for causing her statement to be recorded under Section 164-A Cr.P.C. Therefore the allegations of petitioner-prosecutrix that the learned Magistrate had not recorded the names of accused whom she nominated before him cannot be accepted.

(2.) It is well settled that writ jurisdiction under Article 226 of the Constitution of India is extraordinary in nature and the same is not meant for declaring the private rights of the parties. The remedy available under Article 226 is not available unless there is violation of some statutory duty on the part of the statutory authority. A writ petition is a remedy in public law which can be filed by any person but the main respondent should either be the State, Government, governmental functionaries, or its instrumentalities/agencies within the meaning of Article 12 of the Constitution. Private individuals cannot be equated with State or its instrumentalities/functionaries. All the respondents in the writ petition cannot be private individuals. However, private individuals acting in collusion with the State can be respondents in a writ petition. The person against whom writ can be issued must have some statutory or public duty to perform. Power under Article 226 is exercised at the instance of persons pr citizens for vindication of their constitutional or statutory rights. The relief under Article 226 can be claimed ex debito justitiae or as a matter of right when there is infringement of fundamental rights.

(3.) However, a petition filed under Article 227, stricto-sensu is not a writ petition. The nature of exercise of power under Article 227 stands on substantially different footing. Jurisdiction under Article 227 is neither original nor appellate. Article 227 vests jurisdiction in the High Court both for administrative control and judicial superintendence over the Courts and tribunals subordinate to it. While in its jurisdiction under Article 226, the High Court has power to annul or quash an order or proceedings jurisdiction under Article 227 can be exercised to substitute the order impugned by an order which the inferior tribunal should have passed. This is apart from annulling the proceedings or quashing of the order impugned. While power under Article 226 is exercised when a party is affected, the power under Article 227 can be exercised by the High Court suo motu as a custodian of justice. Thus the powers conferred under Articles 226 and 227 of Constitution of India are distinct and operate in different fields. Interference by the High Court under Article 227 is to keep the subordinate courts within the bounds of their jurisdiction. However, mere errors of fact or of law cannot be corrected by taking recourse to writ of certiorari or exercise of supervisory jurisdiction unless such error is manifest or apparent on the face of the proceedings and a gross failure of justice has occasioned thereby. Such powers are to be exercised sparingly and in appropriate cases where the judicial conscience of the Court dictates it to act to bring failure of justice to halt. Caution and circumspection is to be exercised when such jurisdiction is sought to be invoked during the pendency of any suit/proceedings before a subordinate Court and the error is capable of being corrected at the conclusion of proceedings though calling for correction. I am fortified in this view by a judgment of the apex Court in a case titled Shalini Shyam Shetty and another v. Rajendra Shankar Patil, 2010 8 SCC 329. The Hon'ble apex Court after analyzing various decisions rendered by it, formulated the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution:-