Madhya Pradesh High Court
Indrajeet Nagele vs Jaswant Singh on 11 August, 2025
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE AMIT SETH
ON THE 11th OF AUGUST, 2025
WRIT PETITION No. 29624 of 2025
INDRAJEET NAGELE
Versus
JASWANT SINGH
Appearance:
Shri Girdhar Gopal Shivhare - Advocate for petitioner.
Shri Anand Kumar Jaiswal - Advocate for respondent.
ORDER
Heard on the question of admission.
2. The instant writ petition has been filed by the petitioner challenging the
judgment dated 28.08.2024 passed by the XX Additional Sessions Judge,
Gwalior in Criminal Appeal No.327/2024 whereby, the appeal preferred by
the petitioner against the judgment dated 26.06.2024 passed by the Judicial
Magistrate First Class, Gwalior in S.C.N.I.A. Case No.1110/2017 convicting
the petitioner herein for offence under Section 138 of the Negotiable
Instruments Act, 1881 and award of sentence for six months imprisonment
and payment of compensation of Rs.82,165/- to the respondent, has been
dismissed.
3. In the instant writ petition, the following prayer has been made:-
"In view of the facts mentioned in Para 5 above the petitioners
pray that a writ of mandamus or any other suitable writ, direction
may kindly be issued and following relief may kindly granted to
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the petitioner.
(I) That, order annexure P/1 may kindly be quashed.
(II) That, other relief doing justice including cost be ordered."
4. Learned counsel appearing for the petitioner as well as the respondent
submit that after passing of the impugned judgment dated 28.08.2024, the
petitioner as well as respondent have entered into a compromise and,
therefore, they have moved separate applications bearing I.A. No.8831/2025
and I.A. No.8832/2025 filed under Section 320 of the Code of Criminal
Procedure, 1973 read with Section 147 of the Negotiable Instruments Act,
seeking quashment of the conviction and sentence on the basis of
compromise in the instant writ petition.
5. Learned counsel appearing for the petitioner as well as respondent
submit that since Section 147 of the Negotiable Instruments Act provides for
compounding of the offence under the Act, the applications filed by them
deserve to be allowed and the judgment passed by the learned XX Additional
Sessions Judge deserves to be set aside.
6. Learned counsel appearing for the petitioner submits that in view of the
law laid down by the Hon'ble Supreme Court in the case of State of
Maharashtra vs. Abdul Hamid Haji Mohammad, (1994) 2 SCC 664 and K.M.
Ibrahim vs. K.P. Mohammed and another, (2010) 1 SCC 798, the instant writ
petition filed under Article 226 of the Constitution of India seeking the
prayer as quoted hereinabove, is maintainable.
7. Heard learned counsel for the parties on the question of admission and
maintainability of the instant writ petition filed under Article 226 of the
Constitution of India.
8. Admittedly, by way of filing the instant writ petition under Article 226
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of the Constitution of India, petitioner is seeking quashment of judgment
dated 28.08.2024 passed by the XX Additional Sessions Judge, Gwalior in
Criminal Appeal No.327/2024. In terms of the provisions contained under
Section 438 read with Section 442 of the BNSS, 2023, the remedy of filing
of criminal revision against the impugned judgment dated 28.08.2024 is
available to the petitioner. Admittedly, no application for compounding or
compromise was filed by the petitioner before the learned appellate court and
the learned appellate court had adjudicated and decided Criminal Appeal
No.327/2024 on merits as the same was contested on merits by the parties
therein.
9. The issue arising for consideration of this Court is as to whether, the writ
petition filed under Article 226 of the Constitution of India is maintainable
against the judicial orders?
10. The Hon'ble Supreme Court in the case of Radhey Shyam and another
vs. Chhabi Nath and others, (2015) 5 SCC 423 while considering the similar
issue as regards maintainability of a writ petition filed under Article 226 of
the Constitution of India challenging the judicial order passed by the civil
court, has been pleased to hold as under:-
"13. In Naresh Shridhar Mirajkar v. State of Maharashtra, AIR
1967 SC 1, a nine Judge Bench judgment, a judicial order of High
Court was challenged as being violative of fundamental right. This
Court by majority held that a judicial order of a competent court
could not violate a fundamental right. Even if there was incidental
violation, it could not be held to be violative of fundamental right.
Gajendragadkar, CJ., observed: (AIR pp. 11-12, paras 38-39 &
42).
"38. The argument that the impugned order affects the
fundamental rights of the petitioners under Article
19(1), is based on a complete misconception about the
true nature and character of judicial process and of
judicial decisions. When a Judge deals with matters
brought before him for his adjudication, he first
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decides questions of fact on which the parties are at
issue, and then applies the relevant law to the said
facts. Whether the findings of fact recorded by the
Judge are right or wrong, and whether the conclusion
of law drawn by him suffers from any infirmity, can
be considered and decided if the party aggrieved by
the decision of the Judge takes the matter up before
the appellate court. But it is singularly inappropriate
to assume that a judicial decision pronounced by a
Judge of competent jurisdiction in or in relation to a
matter brought before him for adjudication can affect
the fundamental rights of the citizens under Article
19(1). What the judicial decision purports to do is to
decide the controversy between the parties brought
before the court and nothing more. If this basic and
essential aspect of the judicial process is borne in
mind, it would be plain that the judicial verdict
pronounced by court in or in relation to a matter
brought before it for its decision cannot be said to
affect the fundamental rights of citizens under Article
19(1).
39. .......... Just as an order passed by the court on the
merits of the dispute before it can be challenged only
in appeal and cannot be said to contravene the
fundamental rights of the litigants before the Court, so
could the impugned order be challenged in appeal
under Article 136 of the Constitution, but it cannot be
said to affect the fundamental rights of the petitioners.
The character of the judicial order remains the same
whether it is passed in a matter directly in issue
between the parties, or is passed incidentally to make
the adjudication of the dispute between the parties fair
and effective. On this view of the matter, it seems to
us that the whole attack against the impugned order
based on the assumption that it infringes the
petitioners' fundamental rights under Article
19(1), must fail.
* *
*
42. It is true that the opinion thus expressed by
Kania, C.J., in the case of A.K Gopalan v. State of
Madras [1950 SCR 88] had not received the
concurrence of the other learned Judges who heard
the said case. Subsequently, however, in Ram Singh
v. State of Delhi [1951 SCR 451], the said
observations were cited with approval by the Full
Court. The same principle has been accepted by this
Court in Express Newspapers (Private) Ltd., v. Union
of India [1959 SCR 12], AIR at p.618 and by the
majority judgment in Atiabari Tea Co. Ltd. v. State of
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Assam (1961) 1 SCR 809 at pp. 255-56.
16. This Court then dealt with the legal position in England on
the question of scope of writ of certiorari against a judicial order.
Noting that the writ of certiorari did not lie against a judicial order,
it was observed: (Mirajkar case, AIR pp. 18-19, paras 63-64).
"63. Whilst we are dealing with this aspect of the
matter, we may incidentally refer to the relevant
observations made by Halsbury on this point. "In the
case of judgments of inferior courts of civil
jurisdiction," says Halsbury in the footnote--
'it has been suggested that certiorari
might be granted to quash them for want
of jurisdiction [Kemp v. Balne (1844), 1
Dow. & L. 885, at p. 887], inasmuch as
an error did not lie upon that ground. But
there appears to be no reported case in
which the judgment of an inferior court of
civil jurisdiction has been quashed on
certiorari, either for want of jurisdiction
or on any other ground [Halsbury Laws
of England, 3rd Edn. Vol. 11 p.129]'. The
ultimate proposition is set out in the
terms: "Certiorari does not lie to quash
the judgments of inferior courts of civil
jurisdiction." These observations would
indicate that in England the judicial
orders passed by civil courts of plenary
jurisdiction in or in relation to matters
brought before them are not held to be
amenable to the jurisdiction to issue writs
of certiorari.
64. In R. v. Chancellor of St. Edmundsburry and
Ipswich Diocese Ex parte White [(1948) 1 KB 195]
the question which arose was whether certiorari
would lie from the Court of King's Bench to an
ecclesiastical Court; and the answer rendered by the
court was that certiorari would not lie against the
decision of an ecclesiastical court. In dealing with this
question, Wrottesley, L.J. has elaborately considered
the history of the writ jurisdiction and has dealt with
the question about the meaning of the word 'inferior'
as applied to courts of law in England in discussing
the problem as to the issue of the writ in regard to
decisions of certain courts. "The more this matter was
investigated," says Wrottesley, L.J.; (KB pp.205-06)
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'........the clearer it became that the word
"inferior" as applied to courts of law in
England had been used with at least two
very different meanings. If, as some
assert, the question of inferiority is
determined by ascertaining whether the
court in question can be stopped from
exceeding its jurisdiction by a writ of
prohibition issuing from the King's
Bench, then not only the ecclesiastical
courts, but also palatine courts and
admiralty courts are inferior courts. But
there is another test, well recognised by
lawyers, by which to distinguish a
superior from an inferior court, namely,
whether in its proceedings, and in
particular in its judgments, it must appear
that the court was acting within its
jurisdiction. This is the characteristic of
an inferior court, whereas in the
proceedings of a superior court it will be
presumed that it acted within its
jurisdiction unless the contrary should
appear either on the face of the
proceedings or aliunde.'
Mr Sen relied upon this decision to show that even the
High Court of Bombay can be said to be an inferior
court for the purpose of exercising jurisdiction by this
Court under Article 32(2) to issue a writ of certiorari
in respect of the impugned order passed by it. We are
unable to see how this decision can support Mr Sen's
contentions.
(emphasis supplied).
17. In Rupa Ashok Hurra v. Ashoka Hurra (2002) 4
SCC 388 it was held that final order of this Court
cannot be challenged under Article 32 as violative of
fundamental right. Judgment of this Court in
Triveniben vs. State of Gujarat, (1989) 1 SCC 678
was referred to with approval to the effect that a
judicial order could not violate a fundamental right. It
was observed : (Rupa Ashok Hurra case, SCC pp.
402-03, paras 11-15)
"11. In Triveniben v. State of Gujarat speaking for
himself and other three learned Judges of the
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Constitution Bench, Oza, J., reiterating the same
principle, observed: (SCC p. 697, para 22)
"22. It is well settled now that a
judgment of court can never be
challenged under Articles 14 or 21 and
therefore the judgment of the court
awarding the sentence of death is not
open to challenge as violating Article 14
or Article 21 as has been laid down by
this Court in Naresh Shridhar Mirajkar v.
State of Maharashtra and also in A.R.
Antulay v. R.S. Nayak [1988 (2) SCC
602], the only jurisdiction which could be
sought to be exercised by a prisoner for
infringement of his rights can be to
challenge the subsequent events after the
final judicial verdict is pronounced and it
is because of this that on the ground of
long or inordinate delay a condemned
prisoner could approach this Court and
that is what has consistently been held by
this Court. But it will not be open to this
Court in exercise of jurisdiction under
Article 32 to go behind or to examine the
final verdict reached by a competent
court convicting and sentencing the
condemned prisoner and even while
considering the circumstances in order to
reach a conclusion as to whether the
inordinate delay coupled with subsequent
circumstances could be held to be
sufficient for coming to a conclusion that
execution of the sentence of death will
not be just and proper."
Jagannatha Shetty, J. expressed no opinion on this
aspect.
12. We consider it inappropriate to
burden this judgment with discussion of
the decisions in other cases taking the
same view. Suffice it to mention that
various Benches of this Court reiterated
the same principle in the following cases:
A.R. Antulay v. R.S. Nayak(1988) 2 SCC
602), Krishna Swami v. Union of India
(1992) 4 SCC 605, Mohd. Aslam v.
Union of India, (1996) 2 SCC 749,
Khoday Distilleries Ltd. v. Registrar
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General, Supreme Court of India (1996) 3
SCC 114, Gurbachan Singh v. Union of
India (1996) 3 SCC 117, Babu Singh
Bains v. Union of India (1996) 6 SCC
565 and P. Ashokan v. Union of India
(1998) 3 SCC 56.
13. It is, however, true that in Supreme
Court Bar Assn. v. Union of India (1998)
4 SCC 409 a Constitution Bench and in
M.S. Ahlawat v. State of Haryana (2000)
1 SCC 278 a three-Judge Bench, and in
other cases different Benches quashed the
earlier judgments/orders of this Court in
an application filed under Article 32 of
the Constitution. But in those cases no
one joined issue with regard to the
maintainability of the writ petition under
Article 32 of the Constitution. Therefore,
those cases cannot be read as authority
for the proposition that a writ of certiorari
under Article 32 would lie to challenge an
earlier final judgment of this Court.
14. On the analysis of the ratio laid down
in the aforementioned cases, we reaffirm
our considered view that a final
judgment/order passed by this Court
cannot be assailed in an application under
Article 32 of the Constitution of India by
an aggrieved person, whether he was a
party to the case or not.
15. In fairness to the learned counsel for
the parties, we record that all of them at
the close of the hearing of these cases
conceded that the jurisdiction of this
Court under Article 32 of the Constitution
cannot be invoked to challenge the
validity of a final judgment/order passed
by this Court after exhausting the remedy
of review under Article 137 of the
Constitution read with Order XL Rule 1
of the Supreme Court Rules, 1966.
18. While the above judgments dealt with the
question whether judicial order could violate a
fundamental right, it was clearly laid down that
challenge to judicial orders could lie by way of appeal
or revision or under Article 227 and not by way of a
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writ under Article 226 and 32.
(emphasis supplied)
25. ...........All courts in the jurisdiction of a High
Court are subordinate to it and subject to its control
and supervision under Article 227. Writ jurisdiction is
constitutionally conferred on all High Courts. Broad
principles of writ jurisdiction followed in England are
applicable to India and a writ of certiorari lies against
patently erroneous or without jurisdiction orders of
Tribunals or authorities or courts other than judicial
courts. There are no precedents in India for High
Courts to issue writs to subordinate courts. Control of
working of subordinate courts in dealing with their
judicial orders is exercised by way of appellate or
revisional powers or power of superintendence under
Article 227. Orders of civil court stand on different
footing from the orders of authorities or Tribunals or
courts other than judicial/civil courts. While appellate
or revisional jurisdiction is regulated by statutes,
power of superintendence under Article 227 is
constitutional. The expression "inferior court" is not
referable to the judicial courts, as rightly observed in
the referring order, in paras 26 and 27 quoted above.
27. Thus, we are of the view that judicial orders of
civil courts are not amenable to a writ of certiorari
under Article 226. We are also in agreement with the
view of the referring Bench that a writ of mandamus
does not lie against a private person not discharging
any public duty. Scope of Article 227 is different from
Article 226."
11. The aforesaid proposition of law laid down by the Hon'ble Supreme
Court in the case of Radhey Shyam (supra) has been recently followed by
the Hon'ble Supreme Court in the case of Municipal Corporation of Greater
Mumbai and others vs. Vivek V. Gawde Etc. Etc. arising out of SLP (Civil)
No.19602-19619 of 2022 vide judgment dated 13.12.2024.
12. The proposition of law laid down by the Hon'ble Supreme Court in the
case of Radhey Shyam (supra) as followed in the case of Municipal
Corporation of Greater Mumbai (supra) clearly indicates that the judicial
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order passed by a court on merits of the dispute cannot be said to contravene
the fundamental rights of the litigants so as to avail the remedy under Article
226 of the Constitution of India and challenge to judicial order would not lie
by way of a writ petition under Articles 226 and 32 of the Constitution of
India. It can thus safely be concluded that the instant writ petition filed by the
petitioner under Article 226 of the Constitution of India challenging the
judicial order passed in a criminal appeal, is not maintainable and is
accordingly dismissed.
13. The judgments in the case of K.M. Ibrahim (supra) so also, in the case
of Abdul Hamid (supra) do not deal with the issue of maintainability of writ
petition under Article 226 of the Constitution of India challenging a judicial
order passed by the competent court. The issue before the Hon'ble Supreme
Court in the case of K.M. Ibrahim (supra) was regarding the interpretation
and applicability of Section 147 of the Negotiable Instruments Act, 1881
whereas, the case of Abdul Hamid (supra) pertains to the quashment of the
criminal proceedings instituted and prosecution launched under the TADA
and, therefore, the judgments relied upon by the petitioner have no
applicability on the issue of maintainability of the writ petition filed under
Article 226 of the Constitution of India challenging a judicial order passed
by the competent court in an appeal.
14. In view of the above, the admission to the instant writ petition filed
under Article 226 of the Constitution of India, is declined. However, liberty
is reserved in favour of the petitioner to seek appropriate remedy as may be
permissible under the law.
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15. With the aforesaid, the instant writ petition stands dismissed.
(AMIT SETH)
JUDGE
AK/-
