Not many people can afford to travel to Delhi: the Court doubts whether a writ petition with criminal roots can be stripped of its intra-court appeal
Justices Dipankar Datta and Sheel Nagu held that civil contempt is not an exercise of criminal jurisdiction, listed four situations in which an intra-court appeal lies against a contempt order, and referred Ram Kishan Fauji for reconsideration.
An Additional Chief Secretary in the Uttar Pradesh Home Department was told by a Single Judge of the Allahabad High Court, Lucknow Bench, that if a writ court's order was not complied with he would have to appear in person for the purposes of proceeding further “which includes framing of charges”. The compliance affidavit he had filed, enclosing an order rejecting the candidature of a group of Assistant Prosecution Officer aspirants, had been rejected. He came to the Supreme Court under Article 136, arguing that no Special Appeal lay to a Division Bench of his own High Court because contempt is criminal jurisdiction and the High Court's rules bar an appeal from an order passed in criminal jurisdiction.
On 14 October 2026 the Supreme Court told him he was wrong about that, and in doing so unsettled a line of High Court authority and recorded a respectful disagreement with a three-Judge Bench of its own. The appeal was disposed of without touching the merits, with liberty to present a Special Appeal within a fortnight; the contempt petition before the Single Judge was stayed for two months; and a reference was framed for an appropriate Bench on whether Ram Kishan Fauji v. State of Haryana was correctly decided.
What the Single Judge had done
The impugned order of 3 September 2026 was passed in a pending contempt application. The writ court, by an order of 17 March 2026, had quashed an Office Memorandum of 28 July 2020 and a consequential communique of 14 August 2020, and directed consideration of the respondents' candidature for recruitment as Assistant Prosecution Officers. The appellant complied by rejecting their candidature on 2 September 2026 and placed that order on record through a compliance affidavit of the same date.
The Single Judge rejected the compliance affidavit, giving reasons: a Special Appeal against an earlier order of 13 December 2019 was defective and the delay in filing it had never been condoned, so it could not be treated as a Special Appeal in the eyes of law; the order of 13 December 2019 directing the authorities to accommodate the applicants on vacant posts was neither set aside, modified nor stayed; the inclusion of nineteen posts in the requisition was therefore bad in law; and reading the orders of 17 March 2026 and 13 December 2019 together it was “crystal clear” that the State was under an obligation to appoint the applicants.
Mr Nataraj, Additional Solicitor General for the appellant, relied on J.S. Parihar v. Ganpat Duggar and Lalith Mathur v. L. Maheswara Rao for the proposition that once an order has been passed in compliance with the writ court's order, that order cannot be judicially reviewed in contempt jurisdiction; the resulting order may be right or wrong, but a wrong order cannot amount to deliberate or wilful violation, and the proper course is a fresh writ petition. He added the familiar authorities on wilfulness — Niaz Mohd. v. State of Haryana, Kapildeo Prasad Sah v. State of Bihar and Ashok Paper Kamgar Union v. Dharam Godha — and argued that by rejecting the compliance affidavit the Single Judge was on course to grant, under threat of contempt, substantive relief the writ court had never granted.
The question the Court actually took up
When the Bench asked whether a Special Appeal lay against the impugned order under the Allahabad High Court Rules, 1952, the answer was no. Contempt jurisdiction, it was argued, is essentially an exercise of criminal jurisdiction; Rule 5 of Chapter VIII bars a Special Appeal from an order passed in criminal jurisdiction; Section 19 of the Contempt of Courts Act, 1971 provides an appeal only against an order punishing for contempt, and none had been passed; and so Article 136 was the only road.
The Court confined itself to that question and did not call upon counsel for the respondents to answer on merits. Its conclusion was that the appellant could have presented a Special Appeal and that it is “not quite correct” to contend otherwise.
The reasoning starts from first principles. The power to punish for contempt flows from Article 215 and is sui generis; the 1971 Act merely supplies the procedure to be followed as due process. A Constitution Bench in S.A.L. Narayan Row v. Ishwarlal Bhagwandas had already observed that certain proceedings may be regarded as neither civil nor criminal, and gave contempt of court as its example, alongside disciplinary jurisdiction over lawyers or chartered accountants. A three-Judge Bench in P. Mohanraj v. Shah Bros. Ispat held, on a survey of the authorities, that civil contempt is essentially an action moved by the party in whose interest an order was made to enforce its personal right, criminal contempt is about the public interest in keeping the administration of justice unpolluted, and the fact that fine or imprisonment may be imposed in a civil contempt does not make it a criminal proceeding; the Sanyal Committee's wisdom was that whether a contempt is civil or criminal is judged not by the penalty but by the cause for which it is inflicted.
Four situations where an intra-court appeal lies
On the appealability question the Court worked through Midnapore Peoples' Coop. Bank v. Chunilal Nanda, whose paragraph 11 remains the governing summary: an appeal under Section 19 lies only against an order imposing punishment for contempt; orders declining to initiate, initiating, dropping or exonerating are not appealable under Section 19; in a contempt proceeding it is not appropriate to adjudicate the merits of the dispute between the parties; a direction on the merits is not an exercise of the jurisdiction to punish for contempt and so not appealable under Section 19 unless inextricably connected with a punishment order; and where the court does decide an issue on the merits in a contempt proceeding, the aggrieved person is not without remedy — such an order is open to challenge in an intra-court appeal if the order was of a Single Judge and there is provision for one, or by special leave in other cases. Paragraph 15 of the same decision classifies interlocutory orders into five categories and treats the first three as “judgments” for Letters Patent purposes.
The three-Judge Bench in Ajay Kumar Bhalla v. Prakash Kumar Dixit, which the appellant relied on, in fact approved that position: a Single Judge's finding of contempt was not appealable under Section 19 at that stage, but his finding that the respondent was entitled to promotion to the rank of Inspector General was appealable in terms of paragraph 11(V) of Chunilal Nanda. The Court said the decision therefore does not advance the appellant's cause.
It then set out, without attempting to be exhaustive, the cases in which an intra-court appeal would lie from a Single Judge's order on a contempt application arising out of a writ petition, where the order answers the test of a “judgment”: an order directing a party who was not bound by the parent order or was not originally a party to the writ proceedings, except where that party steps into the shoes of the original respondent and the obligation to secure compliance rests on him; an order requiring compliance with the parent order once again, upon examining the correctness of the purported compliance order and rejecting it; an order which travels beyond the parent order and issues directions not present in it; and an order deciding disputed questions of fact or law having the effect of finally determining the rights of parties. The second of those describes the order under appeal.
“Quasi”
That left the text of Rule 5, which bars a Special Appeal from an order passed in criminal jurisdiction, and the Allahabad decisions holding that contempt, being quasi-criminal, is criminal jurisdiction. If that were right, the Court observed, no interim order in contempt could ever be appealed intra-court, and in every case where a Judge seized of contempt determines rights and liabilities, Article 136 would be the sole remedy.
The answer was linguistic and then conceptual. Decisions are legion that contempt proceedings are quasi-criminal; but “quasi is the Latin for ‘resembling, but not actually being’”. Contempt being quasi-criminal means it resembles criminal law in its consequences of conviction and punishment but is not actually a criminal prosecution: the trial is neither for an offence under the Penal Code or the Bharatiya Nyaya Sanhita nor conducted under the Code of Criminal Procedure or the Bharatiya Nagarik Suraksha Sanhita. Reading S.A.L. Narayan Row with P. Mohanraj, the Court held that since proceedings for civil contempt are not resolved in exercise of criminal jurisdiction, the precedents holding to the contrary may no longer be good law.
It also offered a taxonomy. A criminal matter is the genus — a subject with a criminal flavour, where a penal consequence is involved. When that matter is brought before a court in the form prescribed by law, it ripens into a criminal proceeding. Criminal jurisdiction is the authority of the court to entertain, try and decide that proceeding, conferred by statute in terms of territory, subject matter and hierarchy. The progression is matter, then proceeding, then jurisdiction.
Why Ram Kishan Fauji is now in question
Ram Kishan Fauji held that a High Court exercising writ jurisdiction in respect of matters originating in criminal law exercises “criminal jurisdiction”, so that an intra-court appeal under the Letters Patent is excluded. The Court held first that the decision cannot apply of its own force in contempt proceedings: a principle evolved in writ jurisdiction dealing with a criminal lis cannot be transplanted en bloc into the sui generis jurisdiction of contempt, because to do so would let the origin of the dispute determine the nature of the jurisdiction actually exercised. The determinative question is not whether contempt entails punitive consequences but what jurisdiction the court was actually exercising when it passed the order. “Nomenclature alone cannot answer that question!”
Then it went further and said it doubts whether Ram Kishan Fauji states the law correctly at all. Article 226 confers a single, original, special and extraordinary constitutional jurisdiction which is itself neither civil nor criminal but sui generis. The premise that Article 226 contains two jurisdictions within it, and that the subject matter of the lis determines which is being exercised, is supported neither by historical context nor by the constitutional text nor by the scheme of the Letters Patent: in 1862 there was no Article 226, and writ jurisdiction after the Constitution was not conceived as civil or criminal. The listing of writ petitions as civil or criminal is administrative convenience for the roster and cannot be elevated into a substantive division of the jurisdiction.
The practical consequence drove the point home. On that test, an order refusing to quash an FIR — which determines the criminal guilt of nobody and involves no punishment — is treated on a par with a conviction and sentence, and an intra-court appeal is barred. An intra-court appeal would lie in a land acquisition writ or a taxation writ, engaging Article 300A or Article 265, which are not fundamental rights; but where the liberty of a citizen under Article 21 is at stake, the litigant has no remedy but Article 136, which Pritam Singh v. State says is discretionary and to be exercised only in special circumstances. “Not many people can afford to travel to Delhi to file a special leave petition.” Distance is not the only disabling factor; boarding, lodging and proper representation cost money too, whatever technology has achieved. Access to justice is a facet of Articles 14 and 21 on the authority of the Constitution Bench in Anita Kushwaha v. Pushap Sudan, and the approach in Ram Kishan Fauji tends to violate Articles 14 and 39A, with access to justice the casualty.
The Court added a canon of construction that it said had escaped notice in that case: a right of appeal is a substantive, vested and valuable right, and where the language conferring it is ambiguous or admits of two constructions, the court must lean towards the construction that enlarges and sustains the right rather than the narrow one that defeats it.
The order
Conscious that Ram Kishan Fauji is a three-Judge decision which would normally bind it, the Bench considered it proper to make a reference, subject to such order as the Chief Justice of India may issue on the administrative side. The terms framed ask whether that decision correctly interprets the Letters Patent governing the various High Courts on the maintainability of intra-court appeals in the light of the nature of the jurisdiction conferred by Article 226; whether its ratio does not effectively negate proper access to justice at the intra-court appellate level, apart from creating a division in Article 226 not contemplated by the framers of the Letters Patent or the Constitution; and whether it should be revisited.
On the case itself, the Court declined to examine the contentions on merits, leaving them to be urged in a Special Appeal which the appellant may present within a fortnight if so advised, to be decided by the appellate Bench on its own merits. The contempt petition before the Single Judge stands stayed for two months. The reference remains pending, and the opinion was directed to be placed before the Chief Justice for appropriate orders on the administrative side.