Can An Appeal Arise To The Division Bench From An Order Other Than Passed Under Article 226: MP HC Refers The Question to Larger Bench

In a challenge to the order by the Single Judge, a Division Bench of the Madhya Pradesh High Court has referred the matter to a larger bench with the following question:

Whether the Division Bench in the exercise of powers under Section 2 of the Madhya Pradesh High Court (Appeal to Division Bench) Act, 2005 may entertain the appeal arising from an order other than the order passed under Article 226 of the Constitution of India?

The Court refused to decide on the matter in the absence of clarification of the legal position. A Division Bench of Justices Deepak Kumar Agarwal and Rohit Arya observed that,

".. it will be tantamount to stretching the bounds of law in excess to the jurisdiction conferred under section 2 of the Act of 2005. In a way, it may be tantamount to judicial indiscipline."

Background

A writ was filed under Section 2 (1) of the Madhya Pradesh High Court (Appeal to Division Bench) Act, 2005, by the State against the Single Judge's order. In the impugned order, the Court had held the State Government liable to have continuously and blatantly violated the applicant's fundamental right of speedy trial, directing the payment of Rs. 50,000 as compensation and departmental inquiry against erring police officers.

On having challenged the impugned order under Section 2(1) of the 2005 Act, Additional Advocate General Ankur Mody assisted by Advocate Siddharth Sijoria argued that although the impugned order in the strict sense is not an order passed under Article 226 of the Constitution of India. Nevertheless, regarding the nature and scope of the order, the same is much beyond the scope of jurisdiction under Section 439 of Cr.P.C.

It was argued by the State that the Court while exercising jurisdiction under Section 439 of Cr. While considering the bail application, may incorporate the conditions as provided for under Section 437 (3) of the Cr. P.C, but such conditions are in the matter of order granting bail or refusing the bail. However, in the impugned order, neither bail has been granted nor refused, but an order taking exception to how the prosecution has been going on, and the conduct of the prosecution witnesses has been

"Therefore, the jurisdiction was exercised in effect as if the Court was sitting in the exercise of inherent jurisdiction under Section 482 of Cr. P.C akin to that of Article 226 of the Constitution of India," the AAG argued.

He further relied on Shailendra Sing h Kushwah vs. the State of M.P. to contend that even if the order has been passed in exercise of jurisdiction under Section 439 of Cr. If the body of the order contained an order that otherwise is not within the scope of jurisdiction under Section 439 of Cr. P.C and such an order may be passed in exercise of inherent jurisdiction akin to Article 226 of the Constitution of India; the Division Bench may entertain the writ appeal arising from such an order under Section 2 of the Act of 2005.

Therefore, the Court referred the matter to a larger bench under Rule 12 of Chapter IV of the High Court of Madhya Pradesh Rules, 2008, clarifying the legal position. On the instant matter, the Court stayed the impugned order in the context of the initiation of departmental inquiry against employees, compensation of Rs.50,000/- to the petitioner, recoverable from S.P. Bhind, and periodical submission of the report to Pr. Registrar, Bench at Gwalior.

Title: The State of Madhya Pradesh v. Jaipal Singh

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