📖 Whirlpool Corporation v. Registrar of Trade Marks, Mumbai, (1998) 8 SCC 1

Facts: A petition under Article 226 was resisted on the footing that the statute concerned provided a complete remedy, and that the High Court ought therefore to have declined to entertain it at all.

Held: The Supreme Court held that the power to issue a writ under Article 226 is a constitutional power and cannot be taken away by any legislation, and that the existence of an alternative remedy does not operate as a bar on the jurisdiction — it is a self-imposed limitation on the exercise of a power which the Court undoubtedly possesses. The Court held that the rule requiring a petitioner to exhaust an alternative remedy is a rule of policy, convenience and discretion rather than a rule of law, and that the High Court has discretion to entertain a petition notwithstanding such a remedy in at least three contingencies: where the petition seeks enforcement of a fundamental right; where there is a violation of the principles of natural justice; and where the order or proceedings are wholly without jurisdiction, or the vires of an Act is challenged. The Court held that in those cases the existence of an alternative remedy is no answer.

Ratio: The power under Article 226 is constitutional and cannot be taken away; the existence of an alternative remedy is a self-imposed limitation and not a bar. The Court may entertain a petition notwithstanding such a remedy where a fundamental right is enforced, natural justice is violated, or the action is wholly without jurisdiction.

📖 State of Telangana v. Habib Abdullah Jeelani, (2017) 2 SCC 779

Facts: A High Court, having declined to quash a first information report, nevertheless directed that the accused should not be arrested during the investigation. The State challenged that direction as being beyond the Court’s power.

Held: The Supreme Court held that where a High Court, on an application to quash, declines to interfere, it cannot thereafter issue a direction that the accused shall not be arrested — such an order being wholly unsustainable. The Court held that the two positions are contradictory: if the proceeding is not fit to be quashed, the investigation must be allowed to take its ordinary course, and the power of arrest is part of that course. It held that a High Court cannot, while refusing the relief asked for, grant a relief which it has no power to grant, and that such a direction stifles a lawful investigation without any finding to justify it. The Court held that the accused is not left without remedy: he may apply for anticipatory bail to the Court of Session or the High Court, where the question of his arrest will be decided on the material and on the statutory considerations — which is the course the law provides.

Ratio: A High Court which declines to quash cannot direct that the accused shall not be arrested. If the proceeding is not fit to be quashed the investigation must take its ordinary course, and the accused’s remedy is an application for anticipatory bail.

⚠ Two practical points

The two are frequently invoked together, and properly so. A petition may seek quashing under section 528 and, in the alternative, relief under Article 226 in respect of executive action which the Sanhita does not reach — an unlawful arrest, an illegal detention, a seizure without authority.

But a court which declines the first cannot grant a substitute for it. A High Court which refuses to quash cannot then direct that the accused not be arrested: if the proceeding is not fit to be quashed, the investigation must take its ordinary course.

Article 226 has the wider territorial reach. It extends to any authority within the High Court’s territories or where the cause of action wholly or in part arises — which matters where the proceeding is in one State and the person in another.

And delay matters more under Article 226. The writ jurisdiction is discretionary and is refused on grounds of laches; the inherent power under section 528, being directed at a continuing proceeding, is less readily met by that objection.

The position stated shortly

1. Section 528 saves an inherent power; Article 226 confers a constitutional jurisdiction which cannot be taken away by ordinary legislation.

2. Section 528 is directed at proceedings in a court; Article 226 at any person or authority.

3. Section 528 cannot do what an express provision of the Sanhita forbids — sections 438(2) and 403 being the clearest instances.

4. The existence of an alternative remedy is a self-imposed limitation on Article 226, not a bar on the jurisdiction: Whirlpool.

5. The Court may entertain a petition notwithstanding such a remedy where a fundamental right is enforced, natural justice is violated, the action is wholly without jurisdiction, or the vires of an Act is challenged.

6. But Article 226 is not a route around section 528’s limits: where the Sanhita has dealt with a matter expressly, the Court will not ordinarily use its constitutional jurisdiction to reach a result the statute excludes.

7. Some things only Article 226 can reach — an unlawful arrest, an illegal detention by habeas corpus, compensation for an Article 21 infringement, and a direction to an authority which is not a court.

8. A High Court which declines to quash cannot direct that the accused shall not be arrested: Habib Abdullah Jeelani.

9. If the proceeding is not fit to be quashed, the investigation must take its ordinary course, and the accused’s remedy is anticipatory bail.

10. The practical rule: for what a court has done, section 528; for what the executive has done, Article 226.