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President v. G.Balakrishnan
Structured Summary of the Opinion (W.A.S.R. No.1941 of 2018)
Factual and Procedural Background
The Registry raised queries about maintainability of the writ appeal because (a) the appellant-Society was not made a party in W.P. No.17367 of 2017, and (b) there was an alleged delay of 60 days in filing the appeal. The Society challenged an order of the learned single Judge dated 10.10.2017 in W.P. No.17367 of 2017, which directed the police to register an FIR if a cognizable offence was made out. The Society filed the present Writ Appeal seeking leave to appeal; because of the maintainability queries, the matter was placed before the Division Bench (M. Venugopal, J. and S. Vaidyanathan, J.) for determination.
On return of papers, counsel for the appellant endorsed that the Society had not been made a party in the writ petition, that the order affected the Society’s rights, and therefore sought leave to file the Writ Appeal; the endorsement also stated that the question of condonation of delay did not arise and requested that the Registry place the matter before the Bench for a decision on maintainability.
The Bench heard both sides and considered the materials on record before delivering the order dated 30.01.2018.
Legal Issues Presented
- Whether a Writ Appeal (intra‑Court appeal) before the Division Bench is maintainable against an order passed by a single Judge exercising criminal jurisdiction under Article 226 of the Constitution (in matters that effectively involve or arise from Section 482 Cr.P.C.).
- Whether the appellant-Society, not being impleaded as a party in the writ petition, can seek leave to file a Writ Appeal when it claims its rights are affected by the single Judge's order.
- Whether the delay in filing the writ appeal (and the question of condonation of such delay) is relevant to the maintainability determination raised by the Registry.
Arguments of the Parties
Appellant's Arguments
- The Society (appellant) was not made a party-respondent in W.P. No.17367 of 2017.
- Because the learned single Judge's order in the writ petition is adverse to the Society and affects its rights, the Society has a fundamental right to challenge that order by filing a Writ Appeal; therefore the Writ Appeal ought to have been numbered by the Registry.
- Given that the order affects the rights of the Society, the question of condonation of delay does not arise for the purpose of maintainability of the appeal (as per the appellant's endorsement recorded on return of papers).
Respondent(s)' Arguments
The opinion does not contain a detailed account of the respondents' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ram Kishan Fauji v. State of Haryana, 2017 (5) SCC 533 | Established that no intra‑Court appeal lies against an order of a single Judge when the Judge is exercising criminal jurisdiction; where Article 226 proceedings arise from or involve the exercise of powers under the Code of Criminal Procedure (e.g., Section 482), such proceedings are treated as criminal for purposes of the Letters Patent. | The Court relied on this decision to hold that an intra‑Court writ appeal under Clause 15 of the Letters Patent is not permissible against the single Judge's order passed in exercise of criminal jurisdiction under Article 226 (i.e., where the substance is criminal/Section 482 Cr.P.C.). Consequently, only an appeal to the Supreme Court is available in such cases and not an intra‑Court appeal before the Division Bench. |
Court's Reasoning and Analysis
The Court proceeded to analyze maintainability by reference to constitutional and institutional rules:
- The Court acknowledged that for directing registration of an FIR both Section 482 Cr.P.C. proceedings and writ proceedings under Article 226 may be invoked. However, it emphasized that Article 226 itself does not provide for an intra‑Court appeal against a single Judge's order; jurisdiction to entertain intra‑Court appeals arises from Clause 15 of the Letters Patent of the High Court of Judicature at Madras.
- The Court quoted Clause 15 of the Letters Patent and observed that, on a plain reading, intra‑Court appeals are not provided where a single Judge has exercised criminal jurisdiction. The Clause, as construed by the Court, excludes appeals from orders passed in the exercise of criminal jurisdiction.
- The Court relied on the Supreme Court's three‑Judge Bench decision in Ram Kishan Fauji (2017 (5) SCC 533), which held that where Article 226 proceedings arise from or involve the exercise of Cr.P.C. powers (notably Section 482), such proceedings are treated as criminal in the context of the Letters Patent, and therefore no intra‑Court appeal lies to the Division Bench; the appropriate remedy is to approach the Supreme Court.
- The Court observed that a contention of suppression of facts by the writ petitioner could not be adjudicated at this maintainability stage; if the appellant wishes to raise such contentions, it must do so before the learned single Judge (assuming procedural law permits) rather than by launching an intra‑Court appeal.
- Addressing the appellant's contention that it was not impleaded as a party, the Court held that in criminal matters—particularly when jurisdiction is invoked under Section 482 Cr.P.C.—there is no legal requirement that the accused or potential accused be made parties and heard at the stage when a direction is sought for registering a complaint. Thus non‑impleadment did not, of itself, render the single Judge's order susceptible to an intra‑Court appeal.
- On the totality of these legal principles and authorities, the Court concluded that the Writ Appeal is not maintainable against an order passed by a single Judge in exercise of criminal jurisdiction under Article 226; instead, the remedy, if any, is to approach the Supreme Court.
- Administrative direction: The Court ordered the Registry to return the original papers (if any) to the learned counsel for the appellant after retaining photocopies for record, to be completed within 15 days from when the order copy is made ready.
Holding and Implications
Holding: The Court's core ruling is that the Writ Appeal is not maintainable against the order passed by the learned single Judge under criminal jurisdiction invoked by Article 226 of the Constitution (i.e., where the matter effectively involves Section 482 Cr.P.C.). The Bench directed administrative measures regarding the records.
Implications:
- Direct effect on the parties: The appellant‑Society cannot pursue an intra‑Court writ appeal before the Division Bench against the single Judge's order; if aggrieved, the appellant may approach the Supreme Court.
- Procedural consequence: The Registry is to return original papers to the appellant's counsel after substituting photocopies for the Court's record within 15 days of the order copy being ready.
- Broader precedent: The Court applied existing precedent (Ram Kishan Fauji) and constitutional/instrumental provisions (Clause 15, Letters Patent) to resolve the maintainability question. The opinion does not purport to create a new precedent beyond applying those authorities; it confines its decision to the legal position that intra‑Court appeals do not lie against single Judges exercising criminal jurisdiction under Article 226 (where the substance falls within Section 482 Cr.P.C.).
Bench: M. Venugopal, J. & S. Vaidyanathan, J. — Order dated 30.01.2018. Index: Yes. Internet: Yes. (Order is recorded as a speaking order.)
delivered by M.Venugopal,J and S.Vaidyanathan,J) The Writ Appeal S.R. has been listed "for maintainability", as the Registry has raised query that the appellant is not a party in W.P.No.17367 of 2017 and there is a delay of 60 days in filing the appeal.
2. Challenging the order of the learned single Judge in W.P.No.17367 of 2017, dated 10.10.2017, directing the Police to register the FIR if any cognizable offence is made out, the Society has come forward with the present Writ Appeal and sought leave of the Court and as the issue with regard to the maintainability was raised, the matter is posted before us.
3. Detailed arguments were advanced by the learned counsel for the appellant-Society stating that the Society has not been made as a party-respondent in the Writ Petition and that as there is an adverse order against the Society while allowing such Writ Petition, the Writ Appeal is maintainable and that the Registry ought to have numbered the Writ Appeal. According to the learned counsel, the appellant-Society has got a fundamental right to question the impugned order of the learned single Judge, more particularly when the rights of the Society had been affected.
4. As the Registry raised the question of maintainability, the matter is placed before us after recording the endorsement made by the learned counsel for the appellant on return of papers, endorsing that, "the appellant-Society is not made a party to the writ petition; the order passed by the learned single Judge in W.P.No.17367 of 2017, dated 10.10.2017 is affecting the right of the society; hence, the appellant Society seeking leave of the Court for filing Writ Appeal against the said order; therefore, question of condonation of delay in filing writ appeal does not arise. Direct the Registry may be placed the matter before the Hon'ble Bench for maintainability."
5. Heard both sides and perused the materials available on record.
6. De-hors the aspect of delay in filing the appeal and seeking leave to file the appeal, it is no doubt true that for registering an FIR, not only a petition under Section 482 Cr.P.C. can be filed, but also this Court, under Article 226 of the Constitution of India, is empowered to exercise its extraordinary jurisdiction. When such power has been exercised under Article 226, whether the Writ Appeal (intra-Court appeal) is maintainable before this Court under Clause 15 of the Letters Parent. Under the Constitution of India, there is no provision for intra-Court appeal to be filed against the order of the single Judge passed under Article 226 of the Constitution of India in that regard. Article 226 only deals with the power of the High Court to issue certain writs. Writ Petition could be heard either by a single Judge or by a Division Bench consisting of two or more Judges.
7. The intra-Court appeal is provided under Clause 15 of the Letters Patent of this Court. For better appreciation, it is useful to quote Clause 15 of the Letters Patent, as follows: "Clause 15. Appeal from the Courts of Original Jurisdiction to the High Court in its appellate jurisdiction: And We do further ordain that an appeal shall lie to the said High Court of Judicature at Madras from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of Sec.107 of the Government of India Act, or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to Sec.108 of the Government of India Act, and that notwithstanding anything herein before provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to Sec.108 of the Government of India Act made (on or after the 1st day of February, 1929), in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal, but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to Us, Our Heirs of Successors in Our or Their Privy Council as hereinafter provided."
8. From the above extracted Clause 15, it is clear that the appeal shall lie to the High Court of Judicature at Madras from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in exercise of appellate jurisdiction by a Court, subject to the superintendence of the High Court and not being an order made in exercise of revisional jurisdiction and not being a sentence or order passed. From the above extract of Clause 15, it is also clear that intra Court appeal is not provided if a single Judge has exercised criminal jurisdiction sitting and hearing the matter under Article 226 of the Constitution of India.
9. Recently, a three-Judge Bench of the Supreme Court, in the decision reported in 2017 (5) SCC 533 (Ram Kishan Fauji Vs. State of Haryana), categorically held that it is manifest that no intra-Court appeal lies against the order of the single Judge in exercise of the criminal jurisdiction. When there are proceedings under Article 226 of the Constitution of India arising from an order made by the Court in exercise of the power conferred under the Code of Criminal Procedure (Cr.P.C), it would be a criminal proceedings within the meaning of the Letters Patent. On a plain reading of the Letters Patent of the High Court of Judicature at Madras, it is clear that no appeal lies against the order passed by the learned single Judge in exercise of criminal jurisdiction. Further, the Court in a writ appeal pursuant to Clause 15 of the Letters Patent, exercises appellate jurisdiction and not a jurisdiction as conferred under Article 226 of the Constitution of India. When a power conferred under Article 226 of the Constitution of India is invoked at the instance of a litigant with regard to any criminal matter, it is deemed to have been exercised by the Court under Section 482 Cr.P.C. Hence, no intra-Court appeal is permissible. The Bench hearing the matters pertaining to Section 482 Cr.P.C. cannot exercise the jurisdiction under Article 226 of the Constitution of India, whereas the Bench hearing the matters exercising the extraordinary jurisdiction under Article 226 of the Constitution of India, is empowered to deal with the issues that may fall under Section 482 Cr.P.C. As the jurisdiction exercised in this case is one under Section 482 Cr.P.C., only appeal will lie to the Supreme Court and not before the Division Bench of the Court.
10. In the case on hand, the contention that there is suppression of facts by the writ petitioner, cannot be gone into at this stage and it is for the appellant to put forth the same before the learned single Judge and seek necessary clarification if the appellant is otherwise entitled to make and if law permits such application before the learned single Judge.
11. With regard to the contention of the appellant that the appellant-Society that they have not been made as a party to the writ proceedings before the single Judge, we are of the view that in criminal matters, more particularly in exercise of jurisdiction under Section 482 Cr.P.C., there is no need for the accused to be made as a party and heard, when a direction is sought for registering a complaint.
12. Hence, we are of the view that if the appellant-Society is aggrieved by the impugned order of the learned single Judge, it is always open for the appellant-Society to approach the Apex Court and not by filing the Writ Appeal before the Division Bench of this Court.
13. In view of the above observations and discussion so made, de-hors the query raised by the Registry with regard to the delay in filing the appeal and the appellant-Society not being impleaded as a party to the writ proceedings and that in any event, there is a delay in preferring the writ appeal, and that the leave to file appeal is also sought for, we are of the view that the Writ Appeal is not maintainable against the order passed under Criminal Jurisdiction by the learned single Judge under Article 226 of the Constitution of India. Accordingly, the Registry is directed to return the original papers, if any, to the learned counsel for the appellant, after substituting the same by way of photocopy, so as to enable the Registry to keep the same for record purpose, within 15 days from the date when the order copy is made ready. (M.V.J) (S.V.N.J) 30.01.2018 Index: Yes Internet: Yes Speaking Order
1. The Registrar of Co-operative Societies, O/o Registrar of Co-op. Society, Kilpauk, Chennai-600 010.
2. The Director of Vigilance and Anti Corruption, No.293, MKN Road, Alandur, Chennai-600 016.
3. The Deputy Superintendent of Police, Vigilance and Anti Corruption, Swarnapuri, Salem-636 005. M.VENUGOPAL, J S.VAIDYANATHAN, J W.A.SR.No.1941 of 2018 30.01.2018
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