Is Letters Patent Appeal Maintainable Against Order Of Single-Judge In Criminal Jurisdiction?: J&K High Court Refers To Larger Bench

The Division Bench comprising Justices Sanjeev Kumar and Sanjay Dhar passed this order as it expressed doubts about earlier judgments that restricted LPAs in criminal matters.

While referring the matter to the Chief Justice Justice Sanjay Dhar writing for the bench remarked,

“… We express our doubt about the correctness of the ratio laid down by the Coordinate Division Benches of this Court on the question of maintainability of a Letters Patent Appeal against an order/judgment passed by a Single Judge in criminal jurisdiction. In our opinion, the issue is required to be decided independently by a Larger Bench.”

Background:

The Division Bench was hearing a LPA concerning the mysterious deaths of Dr. Nitan Gupta (son of respondent Dr. Om Prakash Gupta) and his associate Dr. Vikrant Sharma on March 17, 2013. When the police failed to investigate the matter adequately, Dr. Gupta approached the Single Judge of the High Court seeking a direction for the registration of an FIR and an investigation into the deaths.

The Single Judge allowed the petition, directing the SHO to register an FIR and the Inspector General of Police (IGP) to constitute a Special Investigation Team (SIT) to investigate the case.

Aggrieved by this order, the appellant Dr. Sumit Sabarwal, though not initially a party to the proceedings, filed a LPA challenging the Single Judge's decision.

Questioning the maintainability of the petition the respondents argued that a Letters Patent Appeal (LPA) is not maintainable against a judgment or order passed by a Single Judge exercising criminal jurisdiction. He cited several decisions from the High Court of Jammu & Kashmir, such as Shamshada Akhter vs. Aijaz Parvaiz Shah and Abdul Qayoom Khan vs. State of J&K, as well as the Supreme Court's ruling in Ram Krishan Fouji vs. State of Haryana to support his stance.

The respondent contended that these rulings had consistently held that no intra-court appeal lies in cases where a Single Judge exercises criminal jurisdiction.

On the other hand, the appellant's counsel argued that Clause 12 of the Letters Patent applicable to Jammu & Kashmir does not exclude criminal orders from the scope of intra-court appeals. This, they contended, distinguishes it from the Letters Patent applicable to the Punjab and Lahore High Courts, which contain explicit language barring appeals in criminal matters.

The appellant further submitted that Section 362 of the CrPC which bars courts from altering or reviewing final orders allows exceptions when “otherwise provided by law.” Since the Letters Patent is a law in force, the appeal should be entertained, they submitted.

Key Observations Of The Court:

The Division Bench, after hearing the parties, expressed doubts about the correctness of the previous rulings, such as those in Shamshada Akhter and Abdul Qayoom Khan. It noted that the previous decisions may not have fully appreciated the distinctive nature of Clause 12 of the Letters Patent applicable to Jammu & Kashmir.

Observing that Clause 12 lacks explicit exclusion for criminal orders the court pointed out that, unlike the Letters Patent of Punjab and Lahore High Courts, Clause 12 does not explicitly bar appeals against criminal orders. This omission suggests that criminal orders may fall within the ambit of the intra-court appeal mechanism, the bench underscored.

“.. On a plain reading of afore-quoted clause 10 of the Letters Patent applicable to Punjab and Lahore High Courts and comparing it with Clause 12 of the Letters Patent applicable to this Court, it is clear that the expression “or in the exercise of criminal jurisdiction” is conspicuously absent in Clause 12 of the Letters Patent of this Court”, the court pointed.

Expounding on the scope of Section 362 CrPC and Letters Patent Appeals the court observed that while Section 362 of the CrPC prohibits the review or alteration of final orders, it contains an exception for situations “otherwise provided by law.”

“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. The legislature was aware that there are, and there may be situations where the alteration or review of a criminal Court's judgment is contemplated in the Code itself or in any other law for the time being in force.”, the court observed.

The bench added,

“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.”

Highlighting the broader scope of LPA jurisdiction the Division Bench underscored that LPA jurisdiction is broader than review jurisdiction, as it allows for correction not only of patent errors but also of orders that are illegal or perverse. Thus, an LPA Bench has greater latitude than a mere review petition in intervening with a Single Judge's decision, it opined.

In light of these observations, the Division Bench referred the following two key questions to a Larger Bench:

1. Maintainability of LPA:
   • Whether a Letters Patent Appeal (LPA) under Clause 12 of the Letters Patent of the High Court of Jammu & Kashmir and Ladakh is maintainable against an order or judgment passed by a Single Judge in criminal jurisdiction.
2. Scope of Maintainable Criminal Orders:
   • If LPAs are maintainable, what category of orders passed by a Single Judge exercising criminal jurisdiction would be subject to intra-court appeals under Clause 12.

The Division Bench thus directed the Registry to place the matter before the Chief Justice for an appropriate reference to a Larger Bench, as per the J&K High Court Rules, 1999.

Case Title: Dr Sumit Sabarwal Vs Dr Om Prakash Gupta

Citation: 2024 LiveLaw (JKL) 282

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