ANJANA MISHRA, J. - (1.) Heard Sri Amit Pandey, learned counsel for the appellant and Sri S. D. Sanjay, learned Additional Solicitor General for the Union of India and the other contesting respondents.
(2.) We had adjourned the matter day before yesterday (26.11.2018) and the order passed is extracted herein-under:- "Heard Shri Amit Pandey, learned counsel for the appellant and Shri S.D. Sanjay, learned A.S.G. for the Union of India. A preliminary objection has been taken to the maintainability of the appeal. From the memo of the report submitted by the office, we find that the objection had been raised on which the learned counsel for the appellant has endorsed his submissions on the order sheet dated 23 rd of March, 2018, contending that the nomenclature of the writ petition would not govern the maintainability of the appeal, which otherwise would be entertainable against the impugned judgment. Learned counsel for the appellant has cited the judgment of the Apex Court in the case of Ram Kishan Fauji V. State of Haryana and Ors. reported in (2017) 5 SCC 533. Learned ASG has urged that the letters patent appeal would not be maintainable keeping in view the observations made therein and also keeping in view the provisions of Clause 10 of the Letters Patent Appeal under the Patna High Court Rules, as the nature of the dispute is the compounding of an offence, which is essentially a criminal matter giving rise to the writ petition filed which has been rightly captioned as a petition under "criminal writ jurisdiction". It has further been submitted by the learned counsel for the Union of India that even otherwise the appellant has a remedy of moving a revision petition before the Central Board of Excise and Customs and consequently, in view of the said remedy being available, even otherwise the writ petition was not entertainable before the High Court. Learned counsel has also relied on a Full Bench decision of the Orissa High Court in the case of Kasinath Nayak V. State of Odisha and Ors. (AIR 2016 Orrisa 77). However, while traversing the ratio decidendi of the judgment in the case of Ram Kishun Fauji (supra), we find that the Apex Court has come to the conclusion that when the Court is required to consider a bar or non- permissibility, it has to appreciate the matter in true letter and spirit relating to subject matter of controversy, the nature of the proceedings and that the subject- matter is amenable to the jurisdiction being exercised by the High Court in criminal matters. The same has further been explained in the said judgment as is evident from paragraphs 61 to 63 of the said judgment. Learned counsel for the appellant would urge that the refusal to exercise the territorial jurisdiction by the learned Single Judge partakes the character of civil proceedings and consequently, the same being not in conformity with the law laid down by the Apex Court in the case of Kusum Ingots and Alloys Ltd V. Union of India and Anr. (2004) 6 SCC, 254, the observation of the learned Single Judge that the petition was beyond the territorial jurisdiction of this Court is contrary to the ratio expressed in paragraph 27 of the said judgment. He has further relied on other decisions including the case of Canon Steels (P) Limited V. Commissioner of Customs, [(2007) 14 SCC 464], to contend that the citus lay at Patna for maintaining the writ petition and there would not be want of territorial jurisdiction and consequently, this issue being a denial of the constitutional remedy to the appellant does not essentially label the petition relating to a matter exclusively under the criminal jurisdiction of this Court. He further submits that the letters patent appeal would be maintainable and consequently, since the part of the cause of action does arise at Patna, the writ petition ought to have been entertained. Learned counsel pray that the matter be taken up day after tomorrow to enable him to assist this Court on the relevant issue. Put up this case day after tomorrow (28.11.2018)."
(3.) Today, the learned counsel have advanced their submissions not only on the maintainability of the appeal, but also the scope and exercise of the powers of this Court while entertaining a writ petition in a subject matter of the present nature and also the maintainability of the Letters Patent Appeal arising out of a judgment delivered by a learned Single Judge, as is impugned in the present appeal.;