No Appeal Before Division Bench U/S 5 Kerala High Court Act Against Order In Writ Petition Merely Seeking To Invoke S.482 CrPC: High Court

A Division bench comprising Chief Justice A.J. Desai and Justice V.G. Arun, dismissed the writ appeal and observed thus:

“Considering the above-referred decisions of the Hon’ble Division Bench of this Court as well as the Hon’ble Apex Court, we are of the view that 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 CrPC for quashing of a criminal case filed against the appellants. Hence, the appeal is dismissed only on the ground of maintainability.”

The single judge refused to quash criminal proceedings before the Judicial First-Class Magistrate Court - I, Chengannur, in a criminal writ petition filed under Article 226 of the Constitution read with Section 482 of CrPC for exercise of inherent powers of the Court. Against the judgment of the single judge, an appeal was preferred under Section 5 of the Kerala High Court Act and its maintainability was challenged.

The counsel for the appellants, Advocate K.V. Sohan submitted that the writ petition was filed before the single judge under Article 226 of the Constitution read with Section 482 of CrPC for issuance of writ or direction to quash the criminal proceedings pending before the Magistrate Court. It was submitted that since the original jurisdiction of the Court was invoked under Article 226 of the Constitution, an appeal against the order of the single judge was maintainable under Section 5 of the Kerala High Court Act by relying upon the decisions in Fr. Sebastian Vadakkumpadan v. Shine Varghese and Others (2018) and State of Kerala and Others v. C.P. Mohammed and Others (2019).

Advocate General, K Gopalakrishna Kurup, apprised the Court that there was no decision regarding the maintainability of an appeal under Section 5 of the Kerala High Court Act when the power of the single judge was invoked in a combined petition filed under Article 226 of the Constitution read with Section 482 of CrPC.

The Court found that the writ petition was filed before the single judge under Article 226 of the Constitution read with Section 482 of CrPC. The Court stated that the writ petition was filed without praying for issuance of any writ under Article 226 and that the Court has not exercised its original jurisdiction. It noted that the writ petition was filed under Section 482 CrPC to exercise the inherent powers of the Court for quashing the criminal complaint.

The Court relied upon Pepsi Foods Ltd. and Another v. Special Judicial Magistrate and Others (1998) and stated that the Court has to look into the memorandum of the writ petition and the reliefs claimed to identify whether the case was filed under Article 227 of the Constitution of India or under Section 482 of the CrPC. It observed that the nomenclature of filing the proceedings was not relevant. 

“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 further relied upon the Division bench decision in Abubacker Kunju v. Thulasidas (1994), and stated that an appeal would not lie against an order passed by a single judge under Section 482 of CrPC. It thus noted that the single judge has refused to quash the complaint under Section 482 of CrPC and such refusal would not be appealable under Section 5 of the Kerala High Court Act.

On the basis of the above observations, the Court dismissed the writ appeal on the issue of maintainability.

Counsel for the appellants: Advocates Atul Sohan, Bibin John, R. Reji (Attingal), Sreeja Sohan K. and K.V. Sohan

Counsel for the respondents: Advocate General K. Gopalakrishna Kurup, Advocates Pramod M., Shyju C.T., Sagith Kumar V. and Devapriya S.

Citation: 2023 LiveLaw (Ker) 615

Case title: Alfa One Global Builders Pvt. Ltd. V Nirmala Padmanabhan

Case number: WA NO. 1628 OF 2023

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