Certiorari - Definition - Law Dictionary Home Dictionary Definition certiorari

Definition :

Certiorari (to be more fully informed of), an original writ issuing out of the Crown side of the King's Bench Division of the High Court of Justice, addressed, in the king's name, to judges or officers of inferior Courts, commanding them to certify or to return the records of a cause depending before them, to the end that justice maybe done.

Certiorari lies to remove into the High Court of Justice, King's Bench Division, which, superseding the King's bench, is the sovereign Court of justice in criminal causes, all indictments, coroners' inquisitions, summary convictions by magistrates, orders of removal of paupers, and of poor's rates, also orders made by commissioners of sewers and other commissioners, town councils, and railway companies, for the purpose of being examined and 'quashed,' if contrary to law. The writ may be granted either at the instance of the prosecutor or the defendant. A prosecutor was formerly entitled to a writ of certiorari as a matter of right, but a defendant could only obtain it by express leave of the court, and upon his entering into recognizances; but to prevent abuses, by the wanton and improvident application for it, the Acts 5 & 6 Wm. 4, c. 33, and 16 & 17 Vict. c. 30, s. 5, provide that a prosecutor must obtain the previous leave of the court to issue it, and enter into recognizances; and these and other statutory provisions are incorporated in the Crown Office Rules, 1906, Rules 12-39, superseding Rules 28-42 of the Rules of 1886 (see Chitty's Statutes, tit. 'Certiorari'). The Statute Law Revision Act of 1888 repeals 13 Geo. 2, c. 18, so that procedure on certiorari in a very great measure depends on Rules of Court alone. For the very numerous cases in which the writ has been granted or refused, see Mews's Digest, tit. 'Crown Office (Certiorari)' and for a review of the authorities as to procedure on certiorari, see R. v. Nat Bell Liquors, 1922 (2) AC 128, and see the (English) Administration of Justice (Miscellaneous Provisions) Act, 1933 (23 & 24 Geo. 5, c. 36), s. 5, providing for the simplification of procedure.

An appeal does not lie unless it be expressly given by statute, but certiorari always lies unless it be expressly taken away by statute, and special clauses in modern statutes have frequently taken it away. See e.g., (English) Public Health Act, 1875, s. 262; (English) Railways Clauses Consolidation Act, 1845, s. 156; but even such clauses do not apply to cases where a decision is impeached for substantial want of jurisdiction, R. v. Cheltenham Commissioners, (1841) 1 QB 467. (See also Housing Act, 1936, 2nd Sch.)

A certiorari to remove a conviction or order made by justices of the peace must be applied for within six months, Crown Office Rule 21.

A writ of certiorari to remove an action from an inferior court to the High Court issues as of right, Edwards v. Liverpool Corporation, (1902) 86 LT 627.

The removal of County Court actions by certiorari is regulated by s. 126 of the (English) County Courts Act, 1888, reproduced in (English) County Courts Act, 1934 (24 & 25 Geo. 5, c. 53), s. 111, but an order made under the bankruptcy jurisdiction is not removable, Skinner v. Northallerton County Court (Judge of), 1898 (2) QB 680.

The long disused 'Bill of Certiorari' to remove into Chancery a suit in some inferior court having equity jurisdiction was an analogous procedure inequitable matters.

There is power to grant costs to a successful applicant for a certiorari, R. v. Woodhouse, 1906 (2) KB 501. See Corner's Crown Practice; Shortt and Mellor's Crown Practice.

A writ of certiorari lies wherever a body of persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially act in excess of their legal authority; it does not lie to remove or adjudicative upon the order which is of an administrative or ministerial nature, Sadhu Singh v. Delhi Administration, (1966) 1 SCR 243: AIR 1966 SC 91 (95).

Certiorari is a late Latin word being the passive from the word 'Certiorari' meaning 'inform' and occurred in the original Latin words of the writ which translated read 'we, being desirous for certain reasons, that the said record should by you be certified to us'. Certiorari was essentially a royal demand for information; the king, wishing to be certified of some matter, orders that the necessary information be provided for him, Prabodh Verma v. State of Uttar Pradesh, (1985) 1 SCR 216: (1984) 4 SCC 251: AIR 1985 SC 167 (181).

Is a writ of the High Court to an inferior court to call up the records of a cause therein depending, that conscionable justice may be therein administered, Strand's Dictionary of Law, Vol. 1, p. 487.

Is a corrective in nature, issued by the Superior Court to inferior judicial or quasi-judicial body. Grounds for invoking are excess of jurisdiction, violation of natural justice, fraud and error on the face of the record. Conditions for issuing this writ are'(1) a body of persons having legal authority, (i) to determine questions altering rights of subjects, (ii) having the duty to act judicially, (iv) act in excess of their legal authority, (v) issued on constitutional grounds also. Province of Bombay v. Khusal Das, AIR 1950 SC 222; Ujjan Bai v. State of Uttar Pradesh, AIR 1962 SC 1622. [Constitution of India, Arts. 32 and 226]