Chattisgarh High Court
Smt. Suman Unni (Peti. In Person) vs Y. K. Degan on 4 February, 2022
1
HIGH COURT OF CHHATTISGARH, BILASPUR
Writ Appeal No. 299 of 2021
Smt. Suman Unni W/o shri K.Unni Krishnan, aged about 52 years, R/o
Quarter No. 4-A, Street 35, Street 10, Bhilai, Thana Bhilai, District
Durg, Chhattisgarh.
---- Appellant
Versus
Y.K.Degan S/o Shri J.K.Degan, aged about 62 years, the then
Executive Director (Works) Bhilai Steel Plant, Present Post Jindal
Nagar, President, Jindal Steel, District Angul (Odisha) Second Address:
A-1 G1 Cottrage, Anand Vihar, Telibandha, Back of Magnato Mall,
Raipur, Chhattisgarh.
---- Respondent
(Cause Title taken from Case Information System)
For Appellant : In person and Mr. Raja Sharma,
Legal Aid Counsel.
For Respondent : None.
Date of Hearing : 20.01.2022
Date of Order : 04.02.2022
Hon'ble Mr. Arup Kumar Goswami, Chief Justice
Hon'ble Mr. N.K.Chandravanshi, Judge
C A V Order
Per Arup Kumar Goswami, Chief Justice
This writ appeal is directed against an order dated 14.02.2020
passed by the learned Single Judge in Cr(M)P No. 955 of 2018 allowing
the petition filed by the respondent under Section 482 of the Code of
Criminal Procedure, 1973, as well as an order dated 05.07.2021 passed
in Review Petition No. 92 of 2021, dismissing the review petition, filed by
the appellant.
2. By filing the petition under Section 482 of the Cr.P.C., the
respondent had challenged an order dated 09.04.2018 passed by the 1 st
Additional Sessions Judge, Durg, in Criminal Revision No. 195/2017. By
the said order dated 09.04.2018, the order dated 08.08.2017 passed by
the Judicial Magistrate, First Class, Durg (for short, JMFC) in Criminal
Complaint No. 8459/2016 was set aside and the learned JMFC was
directed to take cognizance of the criminal complaint of defamation filed
by the present appellant under Section 500 of the Indian Penal Code,
1860.
3. An office note is put up, amongst others, indicating that the writ
appeal is not maintainable in view of "High Court Rule, para 2(1), page
No. 159, because this writ appeal is against criminal case".
4. On 15.11.2021, the appellant had appeared in person and it
was considered appropriate to appoint a Legal Aid counsel to assist the
appellant and accordingly, Mr. Raja Sharma, learned counsel was
appointed as such.
5. The matter was heard on 20.01.2022 on the question of
maintainability of the appeal.
6. Mr. Raja Sharma, learned counsel has drawn attention of the
Court to Section 2(1) of the Chhattisgarh High Court (Appeal to Division
Bench) Act, 2006. He has placed reliance on the judgment passed by
the Hon'ble Supreme Court in the case of M/S. Pepsi Foods Ltd. &
Another v. Special Judicial Magistrate & Others , reported in (1998) 5
SCC 749, to submit that the Hon'ble Supreme Court has held that the
nomenclature under which a petition is filed is not relevant and that it
does not debar the Court from exercising its jurisdiction which otherwise
it possesses.
7. Page 159, which is referred to in the note of the Registry, as
noted above, is referable to the Book "High Court of Chhattisgarh Rules,
2007". High Court of Chhattisgarh Rules, 2007 (for short, 'Rules of
2007') came into effect on 28.12.2007. At Page 159, Chhattisgarh High
Court (Appeal to Division Bench) Act, 2006 (for short, Act of 2006) finds
place. Para 2(1) as indicated in the said office note actually refers to
Section 2(1) of the Act of 2006, to which our attention is drawn by Mr.
Raja Sharma.
8. Section 2(1) of the Act of 2006 reads as follows:
"2. Appeal to the Division Bench of the High Court
from a Judgment or order of one judge of the High
Court made in exercise of original jurisdiction. -
(1) An appeal shall lie from a judgment or order
passed by one Judge of the High Court in exercise
of original Jurisdiction under Article 226 of the
Constitution of India, to a Division Bench comprising
of two Judges of the same High Court:
Provided that no such appeal shall lie against an
interlocutory order or against an order passed in
exercise of supervisory jurisdiction under Article 227
of the Constitution of India."
9. A perusal of the above provision would go to show that an
appeal shall lie from a judgment or an order to a Division Bench
comprising of two Judges of the Court only against the judgment or order
passed by one Judge of the High Court in exercise of powers under
Article 226 of the Constitution of India. The proviso lays down that no
such appeal shall lie against an interlocutory order or against an order
passed in exercise of supervisory jurisdiction under Article 227 of the
Constitution of India.
10. However we have also come across a Rule, namely, Rule 158
of the Rules of 2007, which is on the subject of "Case Flow Management
Rules in the High Court" and the same finds place under Chapter X.
Rule 158(10) of the Rules of 2007 is on the subject of 'Writ Appeals'. The
same reads as follows:
"(10) Writ Appeals. - An appeal to a Division Bench
from judgment of a Single Judge may lie in the
following cases:
(i) (a) Appeals from interlocutory orders of the
Single Judge in original jurisdiction matters
including writs;
(b) Appeals from final judgments of a Single
Judge in original jurisdiction;
(c) Other appeals permitted by any law to a
Division Bench.
(ii) Appeals against interlocutory orders falling under
category (i) (a) above should be invariably filed after
advance notice to the opposite counsel (who has
appeared before the Single Judge) so that both the
sides will be represented at the very first hearing of
the appeals. If both parties appear at the first
hearing, there is no need to serve the opposite side
by normal process and at least in some cases, the
appeals against interlocutory orders can be
disposed of even at the first hearing. If, for any
reason, this is not practicable, such appeals against
interim orders should be disposed of within a period
of a month.
(iii) In cases referred to above, necessary
documents should be kept ready by the counsel to
enable the Court to dispose of the appeal
against interlocutory matter at the first hearing itself.
(iv) In all Appeals against interim orders in the High
Court, in writs or civil matters, the Court should
endeavour to set down and observe a strict time limit
in regard to oral arguments. In case of Original
Side appeals arising out of final orders in a Writ
Petition or arising out of civil suits filed in the High
Court, a flexible time schedule may be followed.
(v) The practice direction in regard to First Appeal
should mutatis mutandis apply in respect of Original
Side appeals against final judgments of the Single
Judge.
(vi) Writ Appeals arising from orders of the Single
Judge in a Writ Petition should be filed with
simultaneous service on the counsel for the
State/Government of India/Semi-Government Body."
11. In view of the two different provisions pertaining to appeal to
Division Bench as contained in Section 2(1) of the Act of 2006 and Rule
158(10) of the Rules of 2007, which came into effect after coming into
force of Act of 2006, it is considered appropriate to issue notice to the
respondent on the question of maintainability of the appeal.
12. Accordingly, issue notice on maintainability of the writ appeal,
returnable on 21st of March, 2022. Appellant will take steps by registered
post with A/D.
Sd/- Sd/-
(Arup Kumar Goswami) (N.K.Chandravanshi)
CHIEF JUSTICE JUDGE
Amit
