The prosecution must explain the non-recovery of the weapon when relying solely on victim testimony for conviction under IPC, impacting the charge levelled.

JUDGMENT :

Nitin Jamdar, C.J.

By this appeal filed under Section 5 of the Kerala High Court Act, 1958, the Appellants/Petitioners have challenged the interim order dated 23 January 2025 passed by the learned Single Judge in W.P. (C)No.2679 of 2025 whereby the writ petition was admitted however, stay to the selection process for allotment of Akshaya Centre had not been granted by holding that the selection would be subject to the outcome of the writ petition.

2. The Petitioners, who were among the candidates participating in the selection process for the post of 'Akshaya Centre Entrepreneurs,' by W.P.(C)No.2679 of 2025 challenged the policy adopted by the District Authority of the Akshaya Project in Kannur, which grants 2.4 marks as 'form marks' at the time of application and an additional 10% of the total marks—comprising 'form marks,' examination marks, and interview marks—at the time of publication of the rank lists for allocating reservation benefits to SC/ST candidates. The learned Single Judge, by the interim order dated 23 January 2025, admitted the writ petition and refused to stay the selection process for allotment of Akshaya Centre but observed that the selection would be subject to the outcome of the writ petition.

3. Heard Adv. Mr. Rebin Vincent Gralan representing Mr. Manas P. Hameed, learned counsel for the Appellants and Mr. K.P. Harish, learned Senior Government Pleader for the State.

4. According to the learned counsel for the Appellants, there is a strong prima facie case and if no interim order is granted, it will create complications as third party rights will be created.

5. Akshaya project is implemented in the State of Kerala to bridge the digital divide and address the issues of ICT access, basic skills sets and availability of relevant content. Akshaya Centre provides a variety of online services and is able to influence a wide range of development to the extent to which the information and communication is important to individual users.

6. Considering that the Akshaya Centres are designed to deliver public services for citizens to access various government services, the learned Single Judge has exercised his discretion in not staying the process and making it subject to the outcome of the writ petition.

7. Though an appeal is maintainable against such discretionary interim order under Section 5 of the Kerala High Court Act, 1958, the appeal against discretionary order is an appeal on principle. The Hon'ble Supreme Court in the case of Wander Ltd. and Another v. Antox India P. Ltd., 1990 (Supp) Supreme Court Cases 727 had an occasion to consider the approach of the Appellate Bench against discretionary orders. In this case, a suit was filed on the original side of the High Court of Madras, wherein an injunction was sought before the learned Single Judge, which was refused. This order was reversed by the Division Bench of Madras High Court. The defendants filed an appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court laid down certain guidelines and parameters in respect of the exercise of powers by the Appellate Bench and against the discretionary order passed by the learned Single Judge. The Hon'ble Supreme Court observed as follows:

“13. On a consideration of the matter, we are afraid, the appellate bench fell into error on two important propositions. The first is a misdirection in regard to the very scope and nature of the appeals before it and the limitations on the powers of the appellate court to substitute its own discretion in an appeal preferred against a discretionary order. The second pertains to the infirmities in the ratiocination as to the quality of Antox's alleged user of the trademark on which the passing-off action is founded. We shall deal with these two separately.

14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the Appellate Court will not interfere with the exercise of discretion of the Court of first instan