Article 226 | Intra-Court Appeal Not Maintainable Against Single Judge's Order In Criminal Writ Jurisdiction: Gauhati High Court

The Gauhati High Court has recently held that an intra-court writ appeal does not lie against an order or judgment passed by the Single Judge Bench in exercise of the criminal writ jurisdiction under Article 226 of the Constitution of India.

The division bench of Chief Justice Sandeep Mehta and Justice Kardak Ete further directed the court rules be clarified to explicitly state that no intra-Court appeal is permitted in such cases.

“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.”

The bench was hearing an intra-court appeal from an order dated June 08, 2023, passed by the single-judge bench in the criminal writ jurisdiction. The said writ petition was filed by the appellant herein praying to quash the FIR and the charges framed against him by the Trial Court under Sections 431 and 294 of IPC read with Section 3 of Prevention of Damage to Public Property Act, 1984. However, the Single Judge dismissed the petitioner's writ petition.

Notably, the Gauhati High Court Rules are silent as to whether an intra-court appeal was permissible against an order in a criminal matter passed by a Single Judge under Article 226 of the Indian Constitution.

The court referred to the Supreme Court's decision in Ram Kishan Fauji v. State of Haryana & Ors (2017) which clarified that Letters Patent Appeal (LPA) was not admissible against a Single Judge's order in criminal matters. The Supreme Court ruled that such appeals, similar to intra-court writ appeals, should not be entertained against orders of a Single Judge exercising criminal jurisdiction. 

The appellant, representing himself, relied on several judgments including State of Madhya Pradesh v. Visan Kumar Shiv Charan Lal, Surya Dev Rai v. Ram Chander Rai and Dhariwal Tobacco Products Ltd v. State of Maharashtra to argue that this intra-court writ appeal should be entertained.

However, the court found that these judgments did not pertain to the specific issue of the maintainability of an intra-court writ appeal in criminal matters.

“…..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.” 

The court concluded that, based on the existing legal framework and the absence of specific provisions, an intra-court writ appeal does not lie against an order issued by a Single Judge in the exercise of criminal writ jurisdiction under Article 226. It suggested that the court rules be clarified to explicitly state that no intra-court appeal is permitted in such cases.

As a result, the court dismissed the intra-court writ appeal filed by the appellant, deeming it not maintainable under the current legal framework.

Case Title: Shri Deba Prasad Dutta v. The State of Assam and Anr.

Citation: 2023 LiveLaw (Gau) 91

Case no.: Writ Appeal No. 370 of 2023

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