Letters Patent Appeal Not Maintainable Against Single Judge Order In Article 226 Plea Which Has 'Trappings Of Criminal Case': J&K High Court

Dismissing an LPA filed by a police officer Khursheed Ahmad Chohan against a Single Judge Judgment passed in a writ petition filed under Article 226 of the Constitution of India seeking registration of a criminal case Acting Chief Justice Tashi Rabstan and Justice M A Chowdhary observed,

“… a Letters Patent Appeal is not maintainable against the impugned Order/ Judgment passed by the learned Single Judge in a Petition under Article 226 of the Constitution of India, which has the trappings of a criminal case”.

Background of the Case:

Chohan, a Selection Grade Constable in the Jammu & Kashmir Police, had alleged that he was brutally tortured during police custody in February 2023. Summoned by the Senior Superintendent of Police (SSP), Kupwara, in connection with a narcotics case, Chohan claimed that his condition became so critical that he was transferred to SKIMS, Srinagar, for urgent medical treatment.

When Chohan's wife attempted to file an FIR regarding the alleged torture, her requests were ignored by local authorities. Consequently, Chohan filed a writ petition (WP (C) No. 592/2023) before the High Court under Article 226 of the Constitution, seeking the registration of a criminal case against the police officers involved.

In a judgment the Single Judge ruled in favor of Chohan's plea to an extent, directing an inquiry into the allegations. The court instructed the Senior Superintendent of Police, Kupwara, to conduct an in-depth investigation within eight weeks. However, the court did not immediately order the registration of an FIR, emphasizing that an inquiry was necessary to determine whether a cognizable offense had been committed.

Chohan had also filed a separate petition under Section 482 of the Criminal Procedure Code (Cr. P. C.) to quash an FIR which had been lodged against him, accusing him of attempting suicide while in custody. The Single Judge dismissed this petition, allowing the investigation into the suicide attempt to proceed.

Dissatisfied with the outcome, Chohan filed the present Letters Patent Appeal, challenging the inquiry ordered by the Single Judge and demanding that the investigation be handed over to the Central Bureau of Investigation (CBI) for an impartial probe.

Senior Advocate B. A. Bashir argued that the Single Judge erred by ordering an inquiry before FIR registration, citing Lalita Kumari. He sought CBI investigation, claiming the police, accused of custodial torture, couldn't impartially investigate themselves. Bashir also sought to quash the FIR calling it a cover-up for the alleged torture.

Opposing the appeal, Senior Additional Advocate General (AAG) Mohsin-ul-Showkat Qadri defended the actions of the police. He argued that Chohan's writ petition was not maintainable, as he had failed to exhaust the remedies available under the Criminal Procedure Code, including approaching the Superintendent of Police or filing a private complaint under Section 156(3) Cr. P. C. before seeking relief from the High Court.

Qadri further raised a procedural objection to the Letters Patent Appeal, asserting that it was not maintainable, as the writ petition filed by Chohan involved criminal law. He cited earlier rulings that bar intra-court appeals in matters related to criminal law.

Court Observations:

The Division upon carefully examining the case observed that while the petition was filed under Article 226 of the Constitution, its nature was clearly criminal. The allegations made by Chohan pertaining to custodial torture and the request for a criminal investigation squarely placed the case within the ambit of criminal law, the court said.

The Bench cited established legal precedents in Shamshada Akhter v. Aijaz Parvaiz Shah (2021) and Abdul Qayoom Khan v. State of J&K (2023), which reinforced that Letters Patent Appeals are not maintainable when the petition has criminal elements.

“… in terms of Rule 12 of the Letters Patent of this Court, an intra Court appeal against an Order/ Judgment passed by a Single Judge of this Court, in exercise of inherent powers under Section 482 of the Code of Criminal Procedure (Cr. P. C.), is not maintainable”, the court remarked.

The court further emphasized that Section 362 of the Criminal Procedure Code bars courts from altering or reviewing their judgments in criminal cases once they are signed, except for the correction of clerical errors. It explained,

“.. the Division Bench of a High Court under Letters Patent acts as a Single Judge exercising jurisdiction only as a Court of correction and it does not exercise the Appellate Jurisdiction under Letters Patent with a view to examine threadbare the correctness of the Order passed by the learned Single Judge of the High Court”.

In conclusion, the court ruled that the appeal was not maintainable under Letters Patent and dismissed the appeal on procedural grounds.

Case Title: Khursheed Ahmad Chohan VS UT of J&K

Citation: 2024 LiveLaw (JKL) 263

Click Here To Read/Download Judgment