Gauhati High Court
WA/370/2023 on 4 October, 2023
Page No.# 1/5
GAHC010198442023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
WRIT APPEAL NO.370 OF 2023
Shri Deba Prasad Dutta,
Son of Late Digendra Mohan Dutta,
Resident of Ukilbazar, Tarapur, Silchar, Cachar,
Assam, PIN - 788003.
......Appellant
-Versus-
1. The State of Assam, represented by the
Secretary, Ministry of Home, Dispur, Assam.
2. Mrs. Madhumita Sharma,
Wife of Shri Bijoy Sharma,
Resident of Ukilbazar, Tarapur, Silchar, Cachar,
Assam, PIN - 788003.
......Respondents
-B E F O R E -
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE KARDAK ETE
For the Appellant : Mr. Deba Prasad Dutta, appellant in person.
For the Respondent(s) : Mr. D.K. Sarmah and Mrs. R.B. Bora, Additional Senior
Government Advocates, Assam.
Date of Judgment & Order : 4th October, 2023.
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JUDGMENT & ORDER (ORAL)
[Sandeep Mehta, C.J.]
This intra-Court writ appeal arises from an order dated
08.06.2023 passed by the learned Single Bench of this Court in the criminal
writ jurisdiction being WP(Crl.) No.5/2023. The said writ petition filed by the
petitioner (appellant herein) appearing in person seeking quashing of the FIR
as well as the charges framed against him by the trial Court was dismissed by
the learned Single Judge vide order dated 08.06.2023.
On the previous date of hearing, we had instructed the Registry
to make a report regarding maintainability of the writ appeal.
2. Office note dated 03.10.2023 indicates that Rule 2(2) of Chapter
V-A of the Gauhati High Court Rules are silent as to whether an intra-Court
appeal would lie against an order passed in a criminal matter by Hon'ble
Single Judge of this Court under Article 226 of the Constitution of India.
3. The Hon'ble Supreme Court in the case of Ram Kishan Fauji
-Vs- State of Haryana & Ors., reported in (2017) 5 SCC 533 has laid
down that Letters Patent Appeal (LPA) does not lie against an order passed
by learned Single Judge of the High Court in exercise of the criminal
jurisdiction. In the said case, the writ petition before the learned Single Judge
of the High Court was filed under Article 226 of the Constitution of India and
the Division Bench entertained a Letters Patent Appeal against the order of
the learned Single Judge. The judgment of the Division Bench of Punjab &
Haryana High Court was reversed by a three Judges Bench of the Hon'ble
Supreme Court laying down that a letters patent appeal which is akin to an
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intra-Court writ appeal would not lie to the Division Bench against an order
passed by the Single Bench of the High Court in exercise of criminal
jurisdiction.
4. The appellant appearing in person has placed reliance on the
following judgments to contend that this intra-Court writ appeal should be
entertained:-
(i) State of Madhya Pradesh & Ors. -Vs- Visan Kumar Shiv
Charan Lal :: Civil Appeal No.7134/2008.
(ii) Surya Dev Rai -Vs- Ram Chander Rai & Ors., reported in
AIR 2003 SC 3044.
(iii) Dhariwal Tobacco Products Limited & Ors. -Vs- State of
Maharashtra & Anr., reported in (2009) 2 SCC 370;
(iv) Prabhu Chawla -VS- State of Rajasthan & Anr. , reported
in (2016) 16 SCC 30;
5. The judgment relied upon by the appellant in the case of Visan
Kumar Shiv Charan Lal (supra) dealt with the maintainability of the
Letters Patent Appeal filed before the Division Bench against an order of the
learned Single Judge in exercise of the writ jurisdiction, wherein the learned
Single Judge dismissed the writ petition preferred against the award of the
Labour Court. Apparently thus, the said case does not pose a situation,
wherein the letters patent jurisdiction was invoked in the criminal jurisdiction
of the High Court.
In the case of Surya Dev Rai (supra), the issue involved was
regarding maintainability of a writ petition under Article 226 of the
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Constitution of India against the order of interim injunction passed under
Order 39 Rule 12 CPC. Apparently thus, the said judgment does not touch
upon the issue of maintainability of an intra-Court writ appeal against the
order of the learned Single Judge in exercise of the criminal writ jurisdiction.
In the case of Dhariwal Tobacco Products Limited (supra),
the Hon'ble Supreme Court held that availability of alternative remedy of
filing revision under Section 397 of the Code of Civil Procedure could not be a
ground to dismiss an application under Section 482 Cr.PC. It was further held
that even where revision application is barred, remedy under Articles 226/227
of the Constitution of India would be available.
In the case of Prabhu Chawla (supra), it was held that nothing
in Cr.PC not even Section 397 Cr.PC can affect amplitude of inherent powers
conferred upon the High Court by Section 482 Cr.PC.
Clearly thus, there is no such hypothesis in any of the judgments
cited by the petitioner, which touches upon the core issue arising in this
matter regarding the maintainability of the intra-Court writ appeal against an
order passed by the learned Single Bench exercising criminal writ jurisdiction.
6. Having regard to the discussion made herein above, we are of the
firm view that an intra-Court writ appeal does not lie against an order/
judgment passed by the learned Single Bench in exercise of the criminal writ
jurisdiction under Article 226 of the Constitution of India. As the Gauhati High
Court Rules are silent on this issue, the anomaly shall forthwith be clarified
with appropriate insertion in the Rules clarifying the position that no intra-
Court appeal lies against an order/judgment passed by the learned Single
Bench in exercise of the criminal writ jurisdiction.
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7. As a result, the intra-Court writ appeal preferred by the appellant
herein against the judgment dated 08.06.2023 passed by the learned Single
Judge in WP(Crl.) No.5/2023 is hereby dismissed as being not maintainable.
JUDGE CHIEF JUSTICE
Comparing Assistant
