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2023 Supreme(Online)(KER) 8731
HIGH COURT OF KERALA
A.J.DESAI, CJ, V. G. Arun, J
ALFA ONE GLOBAL BUILDERS PVT.LTD – Appellant
Versus
NIRMALA PADMANABHAN – Respondent
WA 1628 2023
SRI. ATUL SOHAN SRI. BIBIN JOHN SRI. R. REJI (ATTINGAL)SRI. SREEJA SOHAN K.SRI. K.V. SOHAN SRI. K. GOPALAKRISHNA KURUP SRI. PRAMOD M. SRI. SHYJU C.T. SRI. SAGITH KUMAR V. SRI. DEVAPRIYA S.
Refusal of a single judge to exercise inherent powers under Section 482 of the Cr.P.C. in a writ petition is not appealable under Section 5 of the Kerala High Court Act.
Headnote:
Jurisdiction - Writ Petition - Kerala High Court Act Section 5, Code of Criminal Procedure Section 482 - The court held that an appeal does not lie against a single judge's refusal to exercise inherent powers under Section 482 of the Cr.P.C. regarding quashing of criminal proceedings.
Fact of the Case:
The appellants challenged a decision denying their writ petition which sought to quash a criminal complaint due to jurisdictional issues. They argued the single judge could exercise inherent powers under Section 482 of the Cr.P.C. and that their appeal was maintainable under Section 5 of the Kerala High Court Act.
Issues: Whether an appeal can be maintained under Section 5 of the Kerala High Court Act against a single judge's refusal to exercise inherent powers under Section 482 of the Cr.P.C.
Ratio Decidendi: An appeal does not lie under Section 5 of the Kerala High Court Act when the single judge has declined to exercise jurisdiction, specifically refusing inherent powers to quash criminal proceedings as per Section 482 of the Cr.P.C.
Final Decision: The appeal is dismissed on the grounds of maintainability.
J U D G M E N T
A.J. Desai, CJ The present appeal has been filed by the original petitioners of W.P.(Crl.) No. 1196 of 2022, challenging the judgment dated 21.08.2023, by which, the learned single Judge has refused to entertain the writ petition seeking to quash all the proceedings in C.C. No.290/2022 on the files of Judicial First Class Magistrate Court - I, Chengannur, alleging that the court has no jurisdiction to entertain the complaint filed by the original respondent No.3 and such other consequential reliefs.
2. The Bench raised a query about the maintainability of the present appeal, which has been filed under Section 5 of the Kerala High Court Act, 1958 , in view of the prayers made and the contentions raised in the writ petition.
3. Mr. K.V. Sohan, learned Advocate for the appellants/
original petitioners, would submit that the petitioners filed the writ petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 , raising an issue concerning the maintainability of a complaint preferred by respondent No.3 and jurisdiction of the Magistrate before whom the complaint has been preferred. He would submit that when such an issue was raised before the learned single Judge, the writ court could exercise its powers under Section 482 of the Cr.P.C. and issue appropriate writ or direction. Therefore, when the petitioners have invoked the original jurisdiction of a learned single Judge under Article 226 of the Constitution of India, the appeal is maintainable under Section 5 of the Kerala High Court Act.
4. The learned Advocate for the appellants would further submit that a Hon’ble Division Bench of this Court dealing with the issue regarding the maintainability of an appeal under Section 5 of the Kerala High Court Act, inState of Kerala and Others v.C.P. Mohammed and Others [ 2019 (3) KLT 793 ], has held that appeal would be maintainable. He would also submit that though a preliminary objection was raised by the other party about the maintainability, it has been held that such an appeal would be maintainable against the order passed in the writ petition filed under Article 226 of the Constitution of India.
5. The learned Advocate for the appellants also relied on the decision of a Hon’ble Division Bench of this Court inFr. Sebastian Vadakkumpadan v. Shine Varghese and Others [ 2018 (3) KLT 177 ] and submitted that the said decision already covers the issue raised by the court.
6. The learned Advocate also relied on the order dated
23rd March, 2018 passed by a Hon’ble Division Bench of this Court in W.A. No. 628 of 2018, wherein it was held that the appeal is maintainable under Section 5 of the Kerala High Court Act, 1958 , if the learned single Judge has dealt with the petition under Article 226 of the Constitution of India. He would submit that the appeal is maintainable and, therefore, the same may be dealt with on merits.
7. We have sought the assistance of the learned Advocate General, Mr. K. Gopalakrishna Kurup, regarding the issues raised and accordingly, he has assisted the Court by placing certain decisions for perusal. He has placed the decisions of a Hon’ble Division Bench of this Court inK.S. Das v. State of Kerala [1992 (2) KLT 358];Narayana Reddiar v. Rugmini Ammal [2000 (3) KLT 301]; and State of Kerala and Others v. C.P. Mohammed and Others [ 2019 (3) KLT 793 ]. However, he would submit that there is no decision regarding the maintainability of an appeal when a combined petition under Article 226 of the Constitution of India read with Section 482 of the Cr.P.C. is dealt with by a learned single Judge.
8. We have heard Mr. K.V. Sohan, learned Advocate for the appellants, and Mr. K. Gopalakrishna Kurup, learned Advocate General.
9. We have gone through the memorandum of the writ petition. Perusal of the same would show that the petition has been filed under Article 226 of the Constitution of India, read with Section 482 of the Cr.P.C., raising an issue about t
