Is letters patent appeal maintainable in criminal case? J&K High Court Larger Bench to decide

Would a Letters Patent Appeal (LPA) be maintainable against an order or judgment passed by a single-judge in exercise of criminal jurisdiction? The Jammu & Kashmir and Ladakh High Court has referred this question to be decided by a larger Bench [Dr. Smit Sabarwal v/s Dr. Om Parkash Gupta and Ors]

The question arose before the Division Bench of Justice Sanjeev Kumar and Justice Sanjay Dhar while hearing an LPA or an intra-court appeal against a single-judge's order for registration of First Information Report (FIR) and and constitution of a Special Investigation Team (SIT) in a case of suspicious death.

The maintainability of the appeal was challenged by the original petitioner in whose writ petition the single-judge had exercised the jurisdiction.

It was argued that as per the settled law, since the writ court passed the directions while exercising powers under the Code of Criminal Procedure (CrPC), the LPA would not be maintainable.

However, the counsel representing the appellant contended 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 of other High Courts in the country.

It was explained that while the exclusion of orders passed in criminal jurisdiction is specifically provided in the relevant clauses of Letters Patents applicable to other High Courts, the same is conspicuously absent in Clause 12 of the Letters Patent of High Court of Jammu & Kashmir and Ladakh.

Considering the submissions, the Court found the Letters Patent applicable to the erstwhile Punjab and Lahore High Courts and the J&K High Court to be distinct.

However, it also noted that this aspect was even noticed by the coordinate Division Benches which had ruled against High Court's LPA jurisdiction in such cases.

The Court then proceeded to analyse the decisions. In particular it referred to the decision in Abdul Qayoom Khan and anr vs. State of J&K and others in which a Division Bench held that in view of the bar contained in Section 362 of the CrPC, it was not open to the High Court to review the orders passed by a single-judge by exercising its LPA jurisdiction.

However, the Bench headed by Justice Kumar opined that the saving clause contained in the initial part of Section 362 of the CrPC had escaped the notice of the coordinate Division Bench.

"It is clear from the afore-quoted provision that it begins with the words “Save as otherwise provided by this Code or by any other law for the time being in force”. This expression means that rigor regarding alteration or reviewing a judgment or final order, as contained in Section 362 of the Cr.PC, is relaxed in two conditions; (i) if it is provided by the Cr.P.C, and (ii) if it is provided by any other law for the time in force. Thus, although Section 362 puts an embargo on the criminal Court to alter or review its judgment or final order disposing of the case, yet, it engrafts the exceptions as indicated therein," it explained.

In this context, the Court found it pertinent to mention that the High Court derives its intra-Court appeal jurisdiction from Clause 12 of the Letters Patent granted to the High Court of Judicature of erstwhile Jammu and Kashmir State, by the erstwhile Maharaja of the State in 1943.

"In Sharda Devi vs State of Bihar, (2002) 3 SCC 705, it has been held that when a Letters Patent grants to the High Court a power of Appeal, against a judgment of a Single Judge of the same High Court, the right to entertain the appeal would not get excluded unless the statutory enactment concerned excludes an appeal under the Letters Patent," it added.

Thus, it concluded that Section 362 of the CrPC would not act as a bar to exercise the Letters Patent jurisdiction against an order of a single-judge made in exercise of criminal jurisdiction.

Having expressed its doubt about the correctness of the ratio laid down by the coordinate Division Benches on the question of maintainability of LPA in such cases, the Bench referred following questions to the 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.

The Registry was directed to place the matter before the Chief Justice for passing appropriate orders relating to reference of these questions of law to a larger Bench.

Senior Advocate Sunil Sethi with advocates Paras Gupta and Amar Veer Manhas appeared for the appellant.

Advocates VB Gupta, Rahul Aggarwal and Rupinder Singh appeared for the respondents.

[Read Judgment]