Can Division Bench entertain appeal against orders other than those passed under Article 226? Madhya Pradesh HC to decide

The Madhya Pradesh High Court recently referred to a larger bench the question as to whether a Division Bench of the High Court can entertain intra-court appeals against orders other than those passed under Article 226 jurisdiction (State of Madhya Pradesh v. Jaipal Singh).

. The Court was hearing an appeal against an order of a single-judge under Section 2(1) of the Madhya Pradesh High Court (Appeal to Division Bench) Act of 2005.

. The Bench of Justices Rohit Arya and Deepak Kumar Agarwal framed the following question:

"Whether, the Division Bench in exercise of powers under Section 2 of the Act of 2005 may entertain the appeal arising from an order other than the order passed under Article 226 of the Constitution of India?"

. While hearing a bail application under Section 439 of the Code of Criminal Procedure (CrPC), the single-judge had ordered a departmental inquiry against an official and directed the Inspector-General of Police of Chambal Range, Gwalior to pay ₹50,000 to the petitioner, after taking exception to the manner in which the prosecution carried out the case.

It further directed that chargesheet copies be furnished to those named guilty and those who did not appear for trial or serve summons. Bailable warrants were directed to be issued to police witnesses.

. In the appeal before the Division Bench, the State argued that the order under challenge was not one passed strictly under Article 226, and that the nature and scope of the order was much beyond the scope of the Court's jurisdiction under Section 439 CrPC. Without hearing those aggrieved by the order, the single-judge's order was exercised as if the Court was sitting in exercise of inherent jurisdiction under Article 226, it was submitted.

After looking through the provisions of the 2005 Act, the Bench noted,

" The legislature in unequivocal terms has provided the scope of jurisdiction of Division Bench in exercise of intra-Court appellate jurisdiction and has provided that an order passed under Article 226 of the Constitution of India by Single Judge but not the interlocutory order, an intra-Court appeal shall be maintainable ."

It was further noted that though the order under challenge appears to have been passed as if the Court exercised its inherent jurisdiction under Section 482 CrPC, which is akin to Article 226 jurisdiction, the single-judge was actually exercising jurisdiction under Section 439 CrPC while refusing bail in the case.

. While counsel for the State requested that the appeal be admitted on facts and circumstances, the Bench felt that the same may amount to "stretching the bounds of law" beyond the jurisdiction conferred under Section 2 of the 2005 Act and count as "judicial indiscipline".

The State then cited the case of Shailendra Singh Kushwah v. State of MP to contend that portions of the order that go beyond the scope of Section 439 of the CrPC and go into the territory of Article 226 jurisdiction, it may be subject to writ appeal before a Division Bench.

In Shailendra Singh, a Division Bench of Justices Sheel Nagu and Rajeev Kumar Shrivastava interfered in a similar contentious bail order, but only to the extent of setting aside a direction restraining authorities from revoking suspensions till the conclusion of a departmental enquiry, while leaving the rest of the bail order intact.

. At this stage, the present Bench ruled that it does not intend to dispose of the instant appeal, and opined that the question arising out of this issue would require legal clarity from a larger Bench.

Accordingly, it granted an interim stay on the Single Judge's directions regarding initiation of departmental inquiry against employees, compensation to the petitioner and periodical submission of report to the Registrar of the Gwalior Bench of the High Court.

However, it directed that its interim order not be treated as precedent.

. Additional Advocate-General Ankur Mody, assisted by advocate Siddharth Sijoria, appeared for the State of Madhya Pradesh.

. [Read Order]

Can Division Bench entertain appeal against orders other than those passed under Article 226? Madhya Pradesh HC to decide

Abhimanyu Hazarika

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