Death Penalty, Imprisonment, Breach Of Peace, Trial Of Offences: Kerala HC Clarifies Scope & Application Of Criminal Writ Petitions

The Division Bench of Chief Justice Nitin Jamdar and Justice S. Manu, however, observed, that the list of cases in which writ petitions (civil) and writ petitions (criminal) are to be filed cannot be exhaustive. Court stated,

“Broadly stated, if a writ petition or application under Articles 226 and/or 227 of the Constitution of India concerns a legal proceeding that could ultimately lead to a sentence of death, imprisonment, a fine, or the forfeiture of property, it would be a "criminal writ petition"- W.P.(Crl.). Additionally, criminal writ petitions include those that arise from orders related to maintaining peace and order, preventing breaches of peace, or addressing vagrancy. Furthermore, any writ petition or application under Article 226 or 227 connected to the investigation, inquiry, or trial of offences, whether under a special or general law, would also be considered a criminal writ petition.”

In the facts of the case, a Writ Petition (Civil) was filed seeking investigation and for taking necessary action on a complaint alleging criminal trespass.

The Writ Petition (Civil) was dismissed by the single judge. Aggrieved by it, Writ Appeal was filed.

The Court was apprised that as per the Roster, appeals from orders passed in writ petition (criminal) goes before another Bench and here the petitioner had filed writ petition (civil).

The Court was thus considering whether the petition was a criminal or civil writ petition.

The Registrar (Judicial) clarified that as per a notification dated April 11, 2013, writ petition (criminal) was adopted in the High Court for petitions under Article 226 for writ of Habeas Corpus and for other petitions regarding criminal proceedings. It was stated that since 2013, writ petitions filed under Article 226 have been categorized as writ petitions (civil) and writ petitions (criminal).

The Registrar also pointed out that a notification dated September 30, 2021 stated that petitions filed under Article 226 for reliefs in relation to criminal proceedings should be filed as writ petition (criminal).

The Court noted that there was no decision or specific rule giving a distinction between writ petitions (civil) and writ petitions (criminal). It also noted that neither the Kerala High Court Act of 1958 nor the Rules of the High Court of Kerala of 1971 make any specific distinction between writ petitions (civil) and writ petitions (criminal).

The Court stated that even though Rules do not specify distinctions between the two types of writ petitions, they are different and distinct and there could be some overlapping also.

The Court referred to an Allahabad High Court decision in State of U.P. and others v Mukthar Singh and Others (1957), which stated that whether proceedings are civil or not depends on the nature of the subject matter and its object.

Further, the Court referred to a Supreme Court decision in S.A.L. Narayan Row and Another v Ishwarlal Bhagwandas and Another (1965) where it was stated that there was a clear distinction between civil and criminal proceedings, even though it has not been defined.

The Court observed that Patna High Court has framed a rules under the High Court Rules where separate classification was made for civil jurisdiction cases and criminal jurisdiction cases and that they have to be registered accordingly. However, the Court noted that there was no clear distinction specifying in which cases civil writ jurisdiction or criminal writ jurisdiction should be applied.

The Court further relied upon Patna High Court decision in Ram Kishan Upadhyaya and v State of Bihar and Others (1995) and Bombay High Court decision in M/s. Nagpur Cable Operators' Association, wherein it was stated that criminal proceedings are those where sentences like death penalty, imprisonment and forfeiture of property are imposed. It observed that cases related to law and order, habeas corpus petitions, petitions to prevent vagrancy, confiscation of property as a penalty in a criminal proceeding also fall under the category of criminal proceedings. It further observed that civil proceedings are those which are filed on infringement of civil rights.

In the facts of the case, the Court observed that the relief sought was for investigation and criminal prosecution which could ultimately lead to punishment for criminal trespass. It thus stated that the petition should be treated as writ petition (criminal).

As such, the Court directed the matter to be placed before the Bench dealing with appeals from orders/judgments passed in criminal writ petitions.

Case Title: N Prakash v Manoj Kumar

Case No: WA NO. 1803 OF 2024

Citation: 2025 LiveLaw (Ker) 102