Supreme Court's Justice Dipankar Datta upholds Justice Nitin Jamdar's judgement setting aside Justice A. Badharudeen's direction to Magistrate to recall his own order

In XXX vs. State of Kerala, 2026 SCC OnLine SC, Supreme Court's Division Bench of Justices Dipankar Datta and Manmohan delivered a 47-page long judgement dated January 27, 2026, wherein it upheld the 23-page long judgement dated November 13, 2024 by the Kerala High Court's Division Bench of Justices Nitin Jamdar  and S. Manu at Ernakulam which had set aside the 35-page long judgement dated October 18, 2024 by Justice A. Badharudeen, the Single Judge of the High Court. The Supreme Court's judgement was authored by Justice Datta and the High Court's Division Bench's judgement was authored by Justice Jamdar. His judgement dealt with the broader issues that relate to the exercise of independent jurisdiction by a Magistrate. 

The High Court's Division Bench concluded: "The impugned judgment dated 18 October 2024 and the order passed by the learned Magistrate dated 24 October 2024 in C.M.P. No.3288/2024 are quashed and set aside. 30. The proceedings in C.M.P. No. 3288/2024 filed by Petitioners be taken to their logical conclusion by the learned Magistrate as per law. We make it clear that regarding the factual issues and the interpretation of Section 175(4) of the BNSS, the learned Magistrate will decide the legal and factual position on its own merits, without being influenced by the observations made in the impugned judgment or this judgment. If any party is aggrieved by the order of the learned Magistrate, it is open to them to pursue the remedies as available in law." 

The ultimate paragraph of the Supreme Court's judgement noted that the Judicial First Class Magistrate Court (JMFC), Ponnani had issued notice to the accused under Section 175(4)(b), Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, giving them a chance to state their side of the story. The Court observed: "We leave it open to the appellant to participate in the proceedings before the JMFC and raise such points that are available to her in law, including that the actions of the accused police officers were not in discharge of their official duties and also that without considering the report that has been called for vide the order dated 11th September, 2024, an FIR should be directed to be registered by the jurisdictional police station. It is also clarified that the JMFC must first satisfy himself that the application under Section 175(3), BNSS is accompanied by an affidavit sworn or affirmed in accordance with the terms of Section 333 thereof."

Prior to this Justice Datta grappled with two questions-whether the single judge exceeded his jurisdiction? and whether in the present case, the alleged acts of the public servants were in the discharge of their official duties?  

With regard to the first question, he observed: "....we find that the appellant had sought directions for registration of an FIR, securing compliance with this Court’s directions in Lalita Kumari (supra), and for a declaration that the acts of the police officials were not in the discharge of official functions and, therefore, not covered by the protection afforded under Section 175(4), BNSS. 50. Should the Single Judge have entertained the writ petition, interpreted Section 175(4) and granted relief to the appellant? We think not. 51. As rightly held by the Division Bench, the Single Judge could not have granted relief that the appellant did not pray. We may profitably refer to the decisions of this Court in Krishna Priya Ganguly v. University of Lucknow (1984) 1 SCC 307, Om Prakash v. Ram Kumar (1991) 1 SCC 441 and Bharat Amratlal Kothari v. Dosukhan Samadkhan Sindhi (2010) 1 SCC 234 where this Court held that the writ court will, normally, grant relief that is prayed; and, though discretion to grant relief under Article 226 is wide, the writ court cannot, ignoring and keeping aside the norms and principles governing grant of relief, proceed to grant a relief not even prayed by the petitioner. 52. Having prayed for directions in the writ petition to register an FIR and to secure compliance with the directions made by this Court in Lalita Kumari (supra) and that too, at a stage, when the JMFC seized of the application under Section 210 read with sub-section (4) of Section 173, BNSS had called for a report in exercise of power conferred by sub- section (4) of Section 175, there was no occasion for the Single Judge to interpret sub-section (4) and interfere with the proceedings that had been set in motion pursuant to the order of the JMFC. The Single Judge would have been justified in interpreting the law if the order of the JMFC, by which he had called for a report in accordance with sub-section (4) of Section 175, BNSS been challenged in a petition under Section 528 thereof or even under Article 227 of the Constitution – which is not the case here. The JMFC having called for a report from the superior police officer by his order, it was a judicial order passed in exercise of power conferred by sub-section (4) of Section 175. A three-Judge Bench of this Court in Radhe Shyam v. Chhabi Nath (2015) 5 SCC 423 has held that a judicial order in a civil matter cannot be challenged in a writ petition under Article 226 of the Constitution. In Pradnya Pranjal Kulkarni v. State of Maharashtra 2025 SCC OnLine SC 1948, the principle has been extended by this Court to judicial orders passed in criminal matters. Notwithstanding that such a judicial order could not have been challenged in a writ petition under Article 226 of the Constitution and despite the absence of any challenge to the JMFC’s order, the Single Judge directed the Magistrate to pass an order in accordance with the law that such Judge declared. This was plainly impermissible. Nevertheless, as directed by the Single Judge, the JMFC proceeded to direct registration of an FIR against the accused persons. In effect, the Single Judge directed the Magistrate to recall his own order – which again constitutes exercise of a power unknown to the law of criminal procedure. 53. We, thus, agree with the Division Bench that the facts before the Single Judge did not call for an interpretation of sub-section (4) of Section 175, BNSS." 

With regard to the second question as to whether in the present case, the alleged acts of the public servants were in the discharge of their official duties, Justice Datta observed: "54. The answer to this question should well be avoided having regard to the particular jurisdiction of the High Court, which the appellant had invoked, coupled with the pendency of the appellant’s application before the JMFC. We, thus, refrain from so answering lest any observation prejudicially affects any party to the proceedings before the JMFC. Invocation of the writ jurisdiction under Article 226 of the Constitution by the appellant was ill-advised. Not only did the appellant approach the writ court when proceedings before the JMFC under Section 175, BNSS were underway and thereby indulged in pursuing parallel remedies, no interference was even merited having regard to the relief claimed. 55. Be that as it may, at the insistence of the parties, we now proceed on a limited examination as to whether the appellant could at all have sought any declaratory relief of the nature claimed before the Single Judge in the writ petition. 56. Although declaratory relief can, inter alia, be sought before a writ court and granted by it upon establishment of a threatened breach or an apprehended breach of a legal right at the instance of a respondent, being a public authority, the nature of declaratory relief prayed by the appellant could not have been granted by the writ court without a challenge being mounted to the order of the JMFC calling for a report. Seeking a declaratory relief that the acts of offence committed by the accused public servants did not arise in the discharge of official duties by them without the order of the JMFC (calling for a report) being challenged would have necessarily required the writ court to embark on a fact-finding exercise in that behalf, as if it were a court of a magistrate. A writ court is a court exercising high prerogative writ jurisdiction; such court could not have been urged by the appellant to convert itself into a court for conducting sort of a magisterial inquiry. The Single Judge overlooked this fundamental flaw. 57. Thus, no relief could have been granted by the High Court to the appellant in exercise of writ jurisdiction." 

Justice A. Badharudeen, the Single Judge erred in granting relief which the appellant did not pray for. He directed the Magistrate to recall his own order –which again constitutes exercise of a power unknown to the law of criminal procedure. 

Sameer Raj to file Letters Patent Appeal (L.P.A.) against Justice Harish Kumar's dismissal of his writ seeking direction to appear in CBSE's 10th Board Exam

In Sameer Raj @ Sameer Raj Sinha & Anr. vs. The Union of India through the Secretary (School of Education and Literacy), Ministry of Human Resource Department, Government of India & Ors. (2026), Justice Harish Kumar of Patna High Court delivered a 11-page long judgement dated January 27, 2026. After dismissing the petition in the penultimate paragraph, in the ultimate paragraph, Justice Kumar concluded:"It is made clear that C.B.S.E., who is the best judge to see as to whether the case of the student falls under exceptional circumstances, hence the petitioner no.1, who was admitted in Class-IV at the age of 5 years and 3 months only and he had also been allowed to appear in the Pre-Board Examination of 10th for the Sessions 2024-25 and his performance is outstanding, the claim of the petitioner be considered afresh for the next academic Session in the C.B.S.E. examination, as the petitioner no.1 had made to suffer because of the fault of the school, who allowed the admission despite having minimum age for the appropriate class." 

The Petitioner no. 2 is Advocate Arun Kumar Sinha, father of the Petitioner no. 1. The six other Respondents were: The State of Bihar, through the Additional Chief Secretary, Education Department, Patna, Director, Secondary Education, Education Department, Patna, Chairman, Central Board of Secondary Education, New Delhi, Secretary, Central Board of Secondary Education, New Delhi, Regional Officer, Central Board of Secondary Education, Regional Office, Patna and B.D. Public School, Buddha Colony, Patna through its Director S.B. Rai.

Sameer Raj, the Petitioner no. 1 and his Petitioner 2. invoked the extraordinary jurisdiction of the High Court seeking a direction upon the Central Board of Secondary Education to consider his application for registration and appearance in Class X, C.B.S.E. Board Examination, 2026 notwithstanding the shortfall of age as reflected in the C.B.S.E. online portal. 

So far C.B.S.E. has refrained from should give true effect to the import of Rule 6.1(iii) of the Examination Bye-laws, 1995 (as amended up to January, 2013) by recognizing that age determination falls within State Government, which has not fixed any age restrictions.

This was the third round of litigation led by Sameer Raj, the Petitioner no.1 who was duly admitted in B.D. Public School, Buddha Colony, Patna; a school duly affiliated with CBSE on April 13, 2018 at the age of 5 years, 3 months and 25 days, in Class-IV. After having performed well in the successive classes, finally, the petitioner was promoted to Class-IX at the age of ten years and three months and was also allowed to appear in Pre-Mid Term of Class-X as well as Mid-Term and Post Mid-Term Examination of Class-X. However, despite his best efforts and persuasion made to all the authorities regarding his academic excellence and outstanding performance to Scholastic areas, when he had not been allowed to appear in the Board Examination of All India Secondary School Examination and the registration was not done, he approached the High Court through his guardian/father in 2023 seeking a direction to the respondent authorities, specially C.B.S.E. to permit the Petitioner no.1 to appear in the Board Examination of AISSE, 2025 and to direct the C.B.S.E. to allow/accept the registration of the Petitioner no.1, irrespective of his age being less than 15 years.

Patna High Court's attention was drawn towards the decision of Delhi High Court of Delhi in Central Board of Secondary Education vs. Master Tathagat Avtar Tulsi (Minor) as well as the decision rendered by Madhya Pradesh High Court at Jabalpur in Aarav Singh vs. Union of India & Ors. and the decision of Patna High Court in Monark Monalisa through his father Sri Kali Prasad Pal vs. The State of Bihar & Ors. 

Justice Kumar observed that this Court "is of the view that the minimum cut off age for getting admission and appearing in the Board examination is provided under the Code/By-laws of the C.B.S.E., but in exceptional circumstances meritorious candidate may be allowed to appear in the Board Examination, even if he/she is under age." He added: "15. The object behind prescribing the minimum age for appearing in any examination is required to ensure that the student must possess proven cognitive maturity and foundational knowledge, besides promoting fairness and consistent development align with standard educational progress. 16. The minimum age prescribed for admission in a class and appearing for an examination in no way put an embargo to pursue the education, rather the same is required for holistic development of a student keeping in mind the developmental appropriateness, academic standardization,
regulatory compliance as well as physical and social development." 

In the penultimate paragraph, Justice Kumar observed: 18. The Court cannot delve into the assessment of the merit of a candidate/student, as the same is within the domain of the academician and the teaching experts. Once, the Chairman of the CBSE has come out with the cogent reasons and rejected the prayer of the petitioner no.1, this Court does not find a fresh ground to entertain the writ petition for the same cause of action. 19. Accordingly, the present writ petition stands dismissed. However, no order as to cost."

A careful reading of the judgement reveals an inadvertent ambiguity between the premise, the penultimate paragraph and the ultimate paragraph of the judgement. This creates a compelling reason for filing a Letters Patent Appeal (L.P.A.). 

Notably, Chief Justice Sangam Kumar Sahoo has observed: "In essence, a Letters Patent Appeal provides an internal check and balance, ensuring judicial oversight and protecting citizens rights by allowing a thorough review of a Single Judge’s decision." He has underlined:"A Letters Patent Appeal, as permitted under the Letters Patent, is normally an intra-court appeal whereunder the Letters Patent Bench, sitting as a court of Correction, corrects its own orders in exercise of the same jurisdiction as was vested in the Single Bench."    

A Letters Patent is a common feature in many High Courts in India, offering an internal mechanism for reviewing decisions of a single judge. It was a remedy provided when high courts were first created in India by Letters Patent in 1865. It is the only remedy available against the decision of a single judge of the high court, otherwise the remedy would lie with the Supreme Court. The Law Commission of India in its 163rd Report states: "Quite a few of the writ petitions disposed of by single judges in various high courts involve substantial stakes and have serious consequences both for the state as well as the citizens. Very often, the writ petition is an original proceedings. At any rate, it is an original proceeding in a civil court i.e. high court. There ought to be at least one appeal against the order made by a single judge on applications preferred under Article 226." 

Clause 10 of the Patna Letters Patent refers to three classes of appeals that may be heard by a Division Bench: (1) appeals from the judgment of a single Judge in exercise of his original jurisdiction; (2) appeals from the judgment of a single Judge in first appeals; and (3) appeals from the judgment of a single.  The Patna Letters Patent were granted by the Crown in 1916 and the clauses are almost identical with the clauses of the Letters Patent granted to the three High Courts of Calcutta, Madras and Bombay in 1865 in pursuance of the well-known Charter Act of 1861 (24 and 25 Victoria, Chapter 104). Clause 10 of the Letters Patent of the Patna High Court provides for an appeal from a judgment of a Single Judge of the High Court to a Division Bench.

Also read: CBSE fails to comply with Patna High Court's orders in Sameer Raj vs. Union of India