The power under Articles 226 and 227 of the Constitution cannot be exercised when an alternative remedy exists under the Code of Criminal Procedure.

JUDGMENT :

ANIL KUMAR CHOUDHARY, J.

I.A. No. 1529 of 2025

1. Heard the parties.

2. Learned counsel for the petitioner submits that this interlocutory application has been filed with a prayer to amend the Writ Petition (Cr.) by inserting the words ‘and Article 227’ after the words ‘Article 226’ and before the words ‘of the Constitution of India’ in the cause title of this Writ Petition (Cr.) and the second prayer is made to challenge the order dated 08.12.2023 passed by the SDJM, Giridih by which the learned SDJM, Giridih has reviewed/set aside the earlier order passed by the learned CJM, Giridih transferring the Complaint Case No.3308 of 2023 under Section 192 of the Code of Criminal Procedure to SDJM, Giridih. It is next submitted that the change in cause title regarding the provision of law will in no way change the nature and character of this Writ Petition (Cr.). Hence, it is submitted that the same be allowed.

3. So far as the second prayer of proposed amendment is concerned, learned counsel for the petitioner submits that the petitioner was never aware of the fact that in the main Complaint Petition No.3308 of 2023, the learned CJM, Giridih vide order dated 24.11.2023 has exercised the power under Section 192 of the Code of Criminal Procedure and was also not aware of the fact that the order passed by the learned CJM, Giridih was revoked by the learned SDJM, Giridih. Hence, some additional questions of law also arises as to whether the said order dated 08.12.2023 is tenable in the eye of law in exercise of the power of any review or revocation vested upon the learned SDJM, Giridih. Hence, it is submitted that the second proposed amendment is also required to be allowed.

4. Learned Advocate General appearing for the State relies upon the Five Judges Special Bench of the Hon’ble Patna High Court in the case of Surendra Singh & Others vs. The State of Bihar & Others,1990 SCC OnLine Pat 246 para-23 of which reads as under:-

“23. Accordingly, I am of the view:

(i) Judicial orders passed by the criminal courts are amenable to the jurisdiction of the High Court under Article 227 of the Constitution.

(ii) Where appeals or revision applications or applications under section 482 of the Code are maintainable before this Court for setting aside such orders there is no question of exercise of power under Article 227.

(iii) Where appeals or revision applications or applications under section 482 of the Code cannot be entertained by this Court for setting aside such orders, power under Article 227 can be exercised in exceptional cases.

(iv) Where petitioner has already invoked the revisional jurisdiction of the Sessions Judge under section 397 of the Code and his second revision application to this Court is barred Under section 397(3) it would indeed require very exceptional circumstances to warrant interference under Article 227 of the Constitution, since the power of the superintendence is not meant to circumvent the statutory bar.”

And submits that Hon’ble Special Bench has laid down the law as to under which facts and circumstances, the power under Article 227 of the Constitution of India can be exercised. It is next submitted by the learned Advocate General that it has been categorically held in para-23(ii) of the aforesaid judgment that inter alia where applications under Section 482 of the Code of Criminal Procedure are maintainable before the High Court for setting aside of an order/orders of criminal courts; there is no question of exercise of power under Article 227 of the Constitution of India. It is then submitted by the learned Advocate General that so far as the second prayer of this interlocutory application regarding the order dated 08.12.2023 passed by the learned SDJM, Giridih in Complaint Case No.3308 of 2023 is concerned, it is not any order of review/setting aside the earlier order as claimed by the petitioner but in fact the said order is in the interest of the justice as without there being any judicial order that the case