Writ Appeal Against Single Bench Judgment Refusing To Excercise Inherent Powers Under Section 482 CrPC Not Maintainable: Kerala HC

The Kerala High Court has held that a writ appeal against a single bench judgment refusing to exercise the inherent powers under Section 482 of Criminal Procedure Code (Cr.PC.) is not maintainable.

“… Appeal would not lie against the impugned judgment where the learned single Judge has refused to exercise the inherent powers under Section 482 of the Cr.P.C for quashing of a criminal case filed against the appellants" the Division Bench of Chief Justice A.J. Desai and Justice V.G. Arun said.

The court was examining the maintainability of writ appeal filed against the judgment by which the Single Judge had refused to entertain the writ petition seeking to quash all the proceedings before the Judicial Magistrate First Class.

Advocate K.V. Sohan appeared on behalf of the appellants while Advocate General K. Gopalakrishna Kurup appeared on behalf of the respondents.

In this case, the Bench raised a query about the maintainability of the appeal, which was filed under Section 5 of the Kerala High Court Act, 1958. The counsel for the appellants/original petitioners, submitted that the petitioners filed the writ petition under Article 226 of the Constitution read with Section 482 of the CrPC, raising an issue concerning the maintainability of a complaint preferred by the respondent and jurisdiction of the Magistrate before whom the complaint was preferred. He submitted that when such an issue was raised before the 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 invoked the original jurisdiction of the Single Judge under Article 226, the appeal was maintainable under Section 5 of the Kerala High Court Act. The counsel for the appellants further submitted that the Division Bench of the Court dealing with the issue regarding the maintainability of an appeal under Section 5 of the Kerala High Court Act, in State of Kerala and Others v. C.P. Mohammed and Others [2019 (3) KLT 793], has held that appeal would be maintainable. He also submitted 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.

The High Court after hearing the contentions of the counsel observed, “The Hon’ble Supreme Court, in the case of Pepsi Foods Ltd. (cited supra), has, in unequivocal terms, held that, when the High Court is dealing with a petition for quashing of criminal proceedings, the nomenclature under which the case is filed, whether it be under Article 226/227 of the Constitution or Section 482 of the Cr.P.C, would not be relevant. In the present appeal, what is relevant is the prayer sought by the appellants, i.e., to quash the proceedings in C.C. No.290/2022, pending on the files of JFMC, Chengannur.”

The court noted that, in Abubacker Kunju v. Thulasidas [1994 (2) KLT 987], it has been held that no appeal would lie against the order passed by a single Judge under Section 482 of the Cr.P.C. We are in complete agreement with the ratio laid down by the Hon’ble Division Bench in Abubacker Kunju (supra), the bench said.

Accordingly, the High Court dismissed the appeal.

Cause Title- Alfa One Global Builders Pvt. Ltd. & Anr. v. Nirmala Padmanabhan & Ors. (Neutral Citation: 2023:KER:66404)

Click here to read/download the Judgment