A Division Bench of Jammu & Kashmir and Ladakh High Court comprising Justice Sanjeev Kumar and Justice Sanjay Dhar while expressing doubts about the correctness of ration laid down by the Coordinate Division Benches on the question of Maintainability of a Letters Patent Appeal against an order/judgment passed by a Single Judge in criminal jurisdiction referred the issue to be decided by a larger bench independently. Whether a Letters Patent Appeal would lie against an order/judgment passed by a Single Judge of J&K High Court in exercise of his criminal jurisdiction.
The Appellant has preferred an Appeal before the division Bench against the order passed by the single judge while exercising criminal jurisdiction.
A preliminary objection was raised by the other side with regard to maintainability of the present appeal on the ground that a Letters Patent Appeal does not lie against an order/judgment passed by a Single Judge of this Court in exercise of his criminal jurisdiction. It was argued that since the learned writ Court has passed the impugned directions while exercising his powers under the Code of Criminal Procedure, as such, no LPA would lie against the said order. Learned counsel for respondent contended that the aforesaid position of law has been settled by this Court in numerous judgments, particularly in the cases of Shamshada Akhter vs Aijaz Parvaiz Shah (LPA No. 80/2021, decided on 16.08.2021), Abdul Qayoom Khan and anr vs. State of J&K and others (LPA No. 265/2022, decided on 02.08.2023), Rohit Sharma vs Rukhsana Begum and another (LPA No. 154/2023, decided on 04.10.2023) and Khursheed Ahmad Chohan vs. UT of Jammu and Kashmir and others (LPA No. 204/2023, decided on 19.09.2024). He has also relied upon a judgment of the Supreme Court in the case of Ram Krishan Fouji vs State of Haryana and others, (2017) 5 SCC 533.
Appellant argued that Clause 12 of the Letters Patent of High Court of Jammu & Kashmir and Ladakh is quite distinct from the corresponding clauses of Letters Patent conferring power of appeal against an order/judgment of a Single Judge pertaining to other High Courts of the Country, As in Clause 12 of J&K Letters Patent there is a conspicuous absence of exclusion of Orders passed in criminal jurisdiction. This there is no bar upon the High court to hear an appeal against an order/judgement passed by single judge in criminal jurisdiction. It was further argued that the ratio laid down by the Supreme Court in Ram krishan Fauji‘s case does not apply to the present case as the Supreme Court in the said case was dealing with interpretation of Clause 10 of letters patent as applicable to the erstwhile Punjab and Lahore High Court which specifically excluded the expression “or in the exercise of criminal jurisdiction”.
The court also analysed the ratio laid down in Shamshada Akhtar‘s case in which a challenge was thrown to an order passed by the learned single judge in a petition under section 482 CrPC and also the ratio laid down in Abdul Qayoom Khan‘s case wherein the coordinate bench had arrived at a conclusion that in view of the bar contained in section 362 CrPC, it’s not open to the High Court to review the orders passed by single judge by exercising its Criminal jurisdiction.
The court observed that Letters Patent of a High Court is definitely a law in force within the meaning of Section 362 of the Cr.PC. Therefore, in the absence of a specific exclusion contained in the aforesaid provision, prima facie, it appears to us that Section 362 of the Cr.PC would not act as a bar to exercising the Letters Patent jurisdiction against an order of a Single Judge made in exercise of criminal jurisdiction. We are also, prima facie, of the view that a Letters Patent Appeal has a wider scope than a review petition in the sense that under the Letters Patent jurisdiction, a Division Bench of the Court can not only interfere in the judgment/order of a Single Judge on the ground of patent error, but it would also be open to a Letters Patent Bench to interfere in the orders of the Single Judge if the same are found to be illegal or perverse. Similarly, we also express our doubts about the correctness of the observations of the Coordinate Division Bench in Shamshada Akhter’s case (supra) that, because Clause 12 of the Letters Patent mentions the word “judgment” and not “order”, as such, a Letters Patent Appeal would not lie against an order passed by a Single Judge exercising jurisdiction under Section 482 of the Cr.PC.
Thus while expressing doubts about the correctness of ration laid down by the Coordinate Division Benches on the question of Maintainability of a Letters Patent Appeal against an order/judgment passed by a Single Judge in criminal jurisdiction referred the issue to be decided by a larger bench independently. The court directed the Registry to place the matter before the Hon’ble Chief Justice for passing appropriate orders relating to reference of below mentioned questions of law to a Larger Bench in terms of proviso to Rule 33 of J&K High Court Rules, 1999
The court accordingly formulated following two questions to be decided by a larger Bench:
(i) Whether a Letters Patent Appeal under Clause 12 of the Letters Patent applicable to this Court is maintainable against an order/judgment passed by a Single Judge in exercise of its criminal jurisdiction;
(ii) If answer to the aforesaid question is in affirmative, what category of judgments/orders passed by a Single Judge in exercise of its criminal jurisdiction would be amenable to Letters Patent jurisdiction by a Larger Bench of the High Court.
