Madhya Pradesh High Court
The State Of Madhya Pradesh vs Jaipal Singh on 16 November, 2021
Author: Rohit Arya
Bench: Rohit Arya
1 WA-990-2021
The High Court Of Madhya Pradesh
WA No. 990 of 2021
(THE STATE OF MADHYA PRADESH Vs JAIPAL SINGH)
2
Gwalior, Dated : 16-11-2021
Shri Ankur Mody, Additional Advocate General with Shri Siddharth
Sijoria, counsel for the appellant/State.
This writ appeal under Section 2 (1) of the Madhya Pradesh Uchcha
Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 (hereinafter
referred to as the `(Ace of 2005)' by the State is directed against the order
dated 14.9.2021 passed in M.Cr.C.No.42352 of 2021 by learned Single
Judge.
Shri Ankur Mody, learned Additional Advocate General though fairly
submitted that, in strict sense the order under challenge is not an order
passed under Article 226 of the Constitution of India. Nevertheless, regard
being had to the nature and scope of the order, the same is much beyond the
scope of jurisdiction under Section 439 of Cr.P.C. True it is that, this court
while exercising jurisdiction under Section 439 of Cr.P.C 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 refused the bail. In the instant case, learned Single Judge has
neither granted bail nor refused the bail, but has passed an order taking
exception to the manner in which, the prosecution has been going on and the
conduct of the prosecution witnesses. Besides the learned Single Judge has
also ordered to institute a departmental inquiry against an official named in the
order with further direction to Inspector General of Police Chambal Range,
Gwalior to submit compliance report before the Registrar on the given dates
with an affidavit of having paid Rs.50,000/- compensation to the petitioner
with further direction to recover the amount so paid from the salary of
Superintendent of Police Bhind and also directed to place a copy of the
charge sheet issued to the Police Officer and other guilty persons who did
2 WA-990-2021
not appear before the trial court or did not serve summons and bailable
warrants on the police witnesses.
It is submitted that the aforesaid mandatory orders passed by learned
Single Judge is much beyond the scope of the jurisdiction under Section 439
of Cr.P.C and that too without hearing the persons against whom adverse
order has been passed. The jurisdiction was exercised in effect is, as if the
court was sitting in exercise of inherent jurisdiction under Section 482 of
Cr.P.C akin to that of Article 226 of the Constitution of India.
Therefore, in view of the aforesaid facts and circumstances and nature
of the order passed, this court may consider to invoke jurisdiction under
Section 2 of the Act of 2005. This court has carefully perused the provisions
contained under section 2 of the Act of 2005. 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.
Though, prima facie, the order under challenge appears to have been
passed as if the court exercised inherent jurisdiction under Section 482 of
Cr.P.C which may be said to be akin to Article 226 of the Constitution of
India but factually, the order is passed by learned Single Judge while
exercising jurisdiction under Section 439 of Cr.P.C arising out of the court
below refusing bail in a case registered at Crime No.7 of 2018 under section
8/20 of the NDPS Act. We are afraid of countenancing submissions of
learned Additional Advocate General while he prays for admission of the
appeal in exercise of jurisdiction under section 2 of the Act of 2005 in the
obtaining facts and circumstances, as acceding to the prayer so made, may
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 tantamount to
judicial indiscipline.
At this stage, Shri Mody, learned Additional Advocate General seeks
3 WA-990-2021
audience of this court to bring on record an order dated 31st December, 2020
passed by coordinate Bench in W.A.No.1053 of 2020 (Shailendra Singh
Kushwah Vs. State of M.P.), to contend that even if the order has been
passed in exercise of jurisdiction under Section 439 of Cr.P.C, if the body of
the order contained an order which 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. He prays that the case may be
taken up post lunch at 2.30 PM.
(ROHIT ARYA) (DEEPAK KUMAR AGARWAL)
JUDGE J UDGE
2.30 PM.
Shri Mody has passed on Board, taken on record the aforesaid order
passed by coordinate Bench. The Bench appears to have taken a contrary
view as rightly submitted by Shri Mody. This Court, therefore, does not
intend to dispose of the instant appeal and formulate following question under
Rule 12 of Chapter IV of the High Court of Madhya Pradesh Rules, 2008 and
recommend to Hon'ble The Chief Justice for formation of larger Bench to
answer 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?"
Shri Mody at this stage submits that pending decision, this court may
stay effect of the impugned order in the context of initiation of departmental
inquiry against employees, compensation of Rs.50,000/- to the petitioner,
recoverable from S.P. Bhind and periodical submission of report to Pr.
Registrar, Bench at Gwalior may be stayed to avoid unwarranted
complications.
In the obtaining facts and circumstances, the prayer is acceded to and
ordered accordingly.
4 WA-990-2021
However, the interim order passed today, shall not be treated as
precedence.
(ROHIT ARYA) (DEEPAK KUMAR AGARWAL)
JUDGE JUDGE
Rks
RAM KUMAR SHARMA
2021.11.1716:42:49 +05'30'