Jammu & Kashmir High Court - Srinagar Bench
Hammid Ahmad Lone vs Aijaz Parvaiz Shah" Decided On on 26 May, 2022
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
LPA 113/2021
Hammid Ahmad Lone
... Appellant
Through: Mr. R.A Jan, senior adv with
Mr. Aswad Attar, adv.
v.
UT of J&K
...Respondent
Through: Mr. D.C Raina, Advocate General
With Mr. Sajad Ashraf, GA &
Mr. Ilyas Nazir Laway, GA
Coram:
Hon'ble Mr. Justice Ali Mohammad Magrey, Judge.
Hon'ble Mr. Justice Puneet Gupta, Judge.
(JUDGMENT)
Magrey, J: (oral)
1. This Letters Patent Appeal (LPA) has been filed by the appellant in
terms of Clause 12 of the J&K Letters Patent of 1943 against an order
passed by learned Single Bench of this Court in petition under Section 482
of the Code of Criminal Procedure, 1973 (now applicable in the Union
Territory of Jammu and Kashmir) filed under Section 561-A Cr.P.C 1933 JK
(now repealed). The two provisions are in pari materia to each other.
2. When this matter was taken up for consideration, the learned
Advocate General, raised preliminary objection regarding maintainability of
the Letters Patent Appeal under Clause 12 of the J&K Letters Patent of
1943. The learned Advocate General submits that the LPA is not
maintainable as is already held by the Division Bench of this Court in LPA
No. 80/2020 "titled Shamshada Akther vs. Aijaz Parvaiz Shah" decided on
16.08.2021.
3. Mr. R.A Jan, learned senior counsel submits that he is well aware of
the Judgment, so referred by learned Advocate General, but the conclusion
drawn on the strength of the Provisions of Law and the judgment of the
2
Hon'ble Supreme Court, needs a re-look as it appears that the Division
Bench has not been properly assisted on the relevant provisions of law and
the judgment on the subject were not brought on the notice of the Division
Bench of this Court, therefore, submits that the Judgment is not applicable
and makes an endavour that the Court may take a different view in tune
with the scheme of law.
4. Brief Facts
:
Appellant, Hamid Ahmad Wani, has challenged an FIR No. 11/2015
dated 21.02.2015 registered with Police Station, Vigilance Organisation
Kashmir, (VOK) Srinagar, in CRM (M) 186/2021 on the grounds stated in
the 482 Petition and as discussed by the learned Single Judge seeking
quashment of the FIR(s).
5. The petition was dismissed by order impugned dated 16.08.2021
passed by learned Single Judge of this Court as being without merit. The
instant LPA has been filed in terms of Clause 12 of the J&K Letters Patent,
challenged the impugned order dated 16.08.2021 passed by the learned
Single Judge in the aforesaid petition filed under Section 482 Code of
Criminal Procedure.
6. We heard learned counsel for the parties and considered the matter.
7. The objection to the maintainability of this LPA is taken on the same
grounds which were taken by respondent's counsel in case LPA No. 80/2020
titled "Shamshada Akther vs. Aijaz Parvaiz Shah", decided on 16.08.2021.
8. On the other hand, learned counsel for the appellant submitted that the
power exercisable by the High Court under Section 482 Cr. P. C. is not
supervisory, but the provision saves the inherent powers of the Court, and
that inherent powers are not the same as powers of superintendence. In this
connection, the Court was taken through Section 482 Cr.P.C.
9. Mr. R.A Jan, learned senior counsel further submitted that the
Division Bench of this court while declaring that the LPA is not
maintainable against the order passed by Single Judge under Section 482
Cr.P.C has referred to judgment of the Supreme Court passed in Ram
Kishan Fauji v. State of Haryana, AIR 2017 SC 1535 which is not
applicable to the fact circumstances of the case.
10. Mr. R.A Jan, learned senior counsel has further while strengthening
his argument referred to and relied upon the judgment of the Supreme Court,
reported as (2017) 9 SCC 641 titled Parbathai Aahir v. State of Gujarat
and anr; AIR 1965 SC 1442 titled South Asia Industries (P) Ltd v. S.B
Sarup Singh and ors; (2017) 5 SCC 553 titled Ram Krishan Fuiji v. State
of Hayana and ors and (1977) 2 SCC 699 titled State of Karnataka v. L.
Muniswamy and ors .
11. At the very outset, we may observe that the contentions raised by Mr.
R.A Jan, learned senior counsel with reference to the judgment of the
Hon'ble Supreme Court does not make any scope for maintainability of this
appeal under clause 12 of the letters patent 1943. Mr. Jan has referred to
section 372 Cr.P.C 1973 and clause 12 of the Letters Patent applicable to
the High Court of Jammu and Kashmir and Ladakh which is already taken
note of and discussed in judgment delivered by the Division Bench of this
Court of which one of us Magrey-J was a member. Paras 13 to 30 of the said
judgment being relevant are extracted below:
"13. At the very outset, we may observe that the learned counsel
for the appellant is right in saying that there is a marked difference in the
contents of Clause 10 of the Letters Patent applicable to the Punjab High
Court and Clause 12 of the Letters Patent applicable to the High Court of
Jammu and Kashmir. The judgment of the Supreme Court in Ram Kishan
Fauji v. State of Haryana (supra) is not attracted. However, with a view
to determining the question whether these LPAs under Clause 12 of the
Letters Patent would lie, apart from examining the pertinent substantive
law, some relevant historicity concerning the High Court and the powers
granted to it would need to be gone into.
14. Chapter XXIX of the Code of Criminal Procedure, 1973,
corresponding to Chapter XXXI under Part-VII of the Code of Criminal
Procedure Svt. 1989 (1933 A.D.) (now repealed), deals with appeals.
Section 372 Cr. P. C. under the said Chapter of the Code reads as under:
"372. No appeal to lie unless otherwise
provided.- No appeal shall lie from any judgment or
order of a Criminal Court except as provided for by
this Code or by any other law for the time being in
force.
Provided that the victim shall have a right to
prefer an appeal against any order passed by the
Court acquitting the accused or convicting for lesser
offence or imposing inadequate compensation, and
such appeal shall lie to the Court to which an appeal
ordinarily lies against the order of conviction of such
Court."
The word 'victim' occurring in the proviso to
Section 372, quoted above, in terms of clause (wa) inserted
in Section 2 of the Code, is defined to mean 'a person who
has suffered any loss or injury caused by reason of the act
or omission for which the accused person has been charged
and the expression includes his or her guardian or legal
heir.
15. In the instant case, we are concerned with the orders passed
by the learned Single Judges of this Court in exercise of their powers
under Section 482/561-A Cr. P. C.; therefore, the proviso to Section 372
Cr. P. C. is not applicable. Even otherwise, neither the respondent in the
first LPA, nor the appellant in the second LPA were charged. Resultantly,
the main provision of the Section only is attracted.
16. Section 372 Cr. P. C., thus, provides that no appeal shall lie
from any judgment or order of a Criminal Court, except as provided for by
the Code or by any other law for the time being in force. So, in terms of
the Section, no appeal lies against any judgment or order of a Criminal
Court, except as provided by the Code or by any other law for the time
being in force. There is no dispute that the High Court is a Criminal Court.
It is to be borne in mind that the provision of law uses the words
'judgment' or 'order'. Essentially, the two words, viz. 'judgment' and
'order' are used in the provision quite distinctly. Let it be examined as to
what appeals are provided for by the Code.
17. Section 373 Cr. P. C. provides for an appeal from orders
requiring security or refusal to accept or reject surety for keeping peace or
good behaviour. Section 374 Cr. P. C. provides appeals from convictions.
It says that any person convicted on a trial held by a High Court in its
extra ordinary original criminal jurisdiction may appeal to the Supreme
Court, and that any person convicted on trial held by a Sessions Judge or
an Additional Sessions Judge or on a trial held by any other Court in
which a sentence of imprisonment for more than seven years has been
passed against him or against any other person convicted at the same trial,
may appeal to the High Court. Section 377 Cr. P. C. provides for the
appeal by the State Government against sentence, Section 378 Cr. P. C.
provides for appeal in case of acquittal, Section 379 Cr. P. C. provides for
appeal against conviction by the High Court in certain cases, and Section
380 Cr. P. C. provides for Special right of appeal in certain cases when
more persons than one are convicted in one trial.
18. Obviously, from a reading of the relevant provisions of the
Code, it is seen that no appeal is provided by the Code against an order
made by the High Court under Section 482 Cr. P. C.
19. Now, let us proceed to examine whether there is any appeal
provided for against an order passed or made by the High Court under
Section 482 Cr. P. C. by any other law for the time being in force. It is
reiterated here that the case of the appellants is that appeal is provided
under Clause 12 of the Letters Patent.
20. Clause 12 of the Letters Patent applicable to the High Court
of Jammu and Kashmir, insofar as relevant herein, is extracted hereunder:
"12. And we do further ordain that an appeal
shall lie to the said High Court of judicature from the
judgment (not being a judgment passed in the
exercise of appellate jurisdiction in respect of a
decree or order made in the exercise of appellate
jurisdiction by a Court subject to the superintendence
of the said High Court, and not being an order made
in the exercise of revisional jurisdiction, and not
being a sentence or order passed or made in the
exercise of the power of superintendence) of one
Judge of the said High Court or one Judge of any
Division Court and that notwithstanding anything
herein before provided an appeal shall lie to the said
High Court from a judgment of 'one Judge of the
said High Court or one Judge of 'any Division Court,
consistent with the provisions of the civil procedure
code......"
Clause 12 of the Letters Patent, it is, thus,
seen, provides that an appeal shall lie to the said High
Court of judicature from the judgment of one Judge
of the said High Court or one Judge of any Division
Court. The provision, as is axiomatic from a portion
thereof within parenthesis, makes a distinction
between judgments and orders. In the relevant part of
the Clause, insofar as it says '...an appeal shall lie to
the said High Court of judicature from the
judgment...', the word used is 'judgment'; the word
order is not mentioned therein. It be seen that Section
482 Cr. P. C. makes the use of the word 'orders', not
judgment. There is a separate Chapter, viz. Chapter
XXVII in the Code which deals with the subject of
'judgment'. Section 353 thereunder provides for the
manner the judgment is to be pronounced and signed.
Section 354 thereunder provides for the language and
contents of judgment. It reads thus:
"354. Language and contents of
judgment.--(1) Except as otherwise expressly
provided by this Code, every judgment referred to in
Section 353.--
(a) shall be written in the language of the Court;
(b) shall contain the point or points for determination,
the decision thereon and the reasons for the decision;
(c) shall specify the offence (if any) of which, and the
section of the Indian Penal Code (45 of 1860) or
other law under which, the accused is convicted and
the punishment to which he is sentenced;
(d) if it be a judgment of acquittal, shall state the
offence of which the accused is acquitted and direct
that he be set at liberty.
(2) When the conviction is under the
Indian Penal Code (45 of 1860) and it is doubtful
under which of two sections, or under which of two
parts of the same section of that Code the offence
falls, the Court shall distinctly express the same and
pass judgment in the alternative.
(3) When the conviction is for an offence
punishable with death or, in the alternative, with
imprisonment for life or imprisonment for a term of
years, the judgment shall state the reasons for the
sentence awarded, and, in the case of sentence of
death, the special reasons for such sentence.
(4) When the conviction is for an offence
punishable with imprisonment for a term of one year
or more, but the Court imposes a sentence of
imprisonment for a term of less than three months, it
shall record its reasons for awarding such sentence,
unless the sentence is one of imprisonment till the
rising of the Court or unless the case was tried
summarily under the provisions of this Code.
(5) When any person is sentenced to
death, the sentence shall direct that he be hanged by
the neck till he is dead.
(6) Every order under Section 117 or sub-
section (2) of Section 138 and every final order made
under Section 125, Section 145 or Section 147 shall
contain the point or points for determination, the
decision thereon and the reasons for the decision."
21. Ordinarily, judgment is a formal intimation of the decision
and declaration of the mind of the Court at the time of pronouncement.
However, from a plain reading of Section 354 Cr. P. C., it becomes
axiomatic that judgment in context of the Code has a connotation of its
own, which is that a judgment is the determination of guilt, or otherwise,
of an accused and in the event of such guilt being established, also
includes the process of sentencing the accused [see Yakub Abdul Razak
Menon v State of Maharashtra, (2013) 13 SCC 1].
22. In any case, whereas Clause 12 of the Letters Patent, as
seen above, mentions the word 'judgement', which is, obviously, used in
distinction to 'order', Section 482 Cr. P. C. uses the word 'order', not
'judgment'. So, it becomes clear and we are convinced that Clause 12 of
the Letters Patent, in context of the Criminal Procedure Code, does not
provide for an appeal to the High Court against an order, which includes
an order made by the High Court in exercise of powers under Section 482
Cr.P.C.
23. As mentioned earlier, learned counsel for the respondents
submitted that the orders under Section 482 Cr. P. C are made by the High
Court in exercise of the supervisory powers and, therefore, in terms of
Clause 12 of the Letters Patent no appeal lies to the High Court against
such orders. In this connection, the learned counsel cited the judgment of
the Punjab & Haryana High Court in Kulwinder Singh v State of Punjab,
MANU/PH/0222/2007, wherein it is observed that the power
under Section 482 Cr. P. C. is to be exercised ex-debito justitiae.
24. As seen above, Clause 12 of the Letters Patent applicable to
the High Court of Jammu and Kashmir excludes certain judgments and
orders mentioned therein within parenthesis, viz., a judgment passed in the
exercise of appellate jurisdiction in respect of a decree or order made in
the exercise of appellate jurisdiction by a Court subject to the
superintendence of the High Court, and an order made in the exercise of
revisional jurisdiction, and a sentence or order passed or made in the
exercise of the power of superintendence. The specific case of the learned
counsel for the respondents is that the orders under Section 482 Cr. P. C.
are made in exercise of the power of superintendence, and, therefore, on
that count, no appeal under Clause 12 lies against the same.
25. It is settled law that Section 482 Cr. P. C. saves the inherent
powers of the High Court and that, in fact, is the lead carried by the
Section. Can these inherent powers of the Court be equated with, or have
been akin to, the powers of superintendence of the Court? This would need
to be examined in context of, and in reference to, the historicity of the
Court and the powers granted to it at the time of its establishment.
26. The High Court of Judicature Jammu and Kashmir was
established by Order No.1 of 1928 dated 26.03.1928 by the Ruler of the
erstwhile State from 15th Baisakh Svt. 1985. Clause 1 of this order
provided for establishment of the High Court of Judicature, Clause 2
thereof mentioned the Title of the Court, Clause 3 provided for oath of
office, Clause 4 provided for seal of the Court, Clause 5 provided for
Writs etc., Clause 6 related to the original jurisdiction of the Court. It
provided as under:
"6. Original jurisdiction
(a) The High Court of Judicature shall have jurisdiction to
hear and determine any original proceeding, or any suit of which the
value is not less than Rs.10,000 and notwithstanding anything
contained in Section 15 of the Code of Civil Procedure of Samvat
year 1977, every such suit or proceeding shall be instituted in the
High Court of Judicature.
Provided that nothing in this Clause shall affect the
provisions of Section 24 of the Code of Civil Procedure of Samvat
year 1977, in respect of a suit, appeal or other proceeding pending
before a court subordinate to it to try or dispose of the same.
(b) The High Court of Judicature shall be deemed for the
purposes of all enactments, for the time being in force, to be the
highest Civil Court of appeal and revision.
(c) The High Court of Judicature shall be the highest court of
criminal appeal.
(d) The High Court of Judicature shall be empowered to hear
and decide such revenue appeals as may be specified by general or
special orders of His Highness in the (that) behalf and shall be
deemed to be the highest court of revenue."
Clause 7 related to the jurisdiction of Judges of the Court. It
provided as under:
"7. Jurisdiction by Judges of the Court
(a) Except as otherwise provided by any enactment for the
time being in force, and subject to any rules made under this
order, with the sanction of His Highness the Maharaja
Bahadur, the jurisdiction of the High Court of Judicature
may be exercised by a Single Judge of the Court or by a
bench of two or more Judges of the Court.
(b) Revenue appeals and revisions shall first be heard by the
Revenue Commissioner [one of the Judges of the Court
having revenue experience and styled as such under Clause
1] sitting alone and appeals against his decisions shall lie to
a bench consisting of two other Judges of the Court.
(c) Subject to the provision of clauses (b) above, the
Chief Justice shall determine which Judge in each
case shall sit alone, and which Judge of the Court
shall constitute a bench."
Clause 8 provided for appeals from civil jurisdiction, Clause
9 provided for Rule of decision when Judges differ, Clause 10 for
power to refer question to a full bench or a bench, Clause 11
provided for superintendence and control of subordinate courts. It
read as under:
"11. Superintendence and control of subordinate courts
(a) Subject to such rules and regulations as
His Highness the Maharaja Bahadur may be
pleased to frame in this behalf, the general
superintendence and control over all courts,
shall be vested in, and they shall be
subordinate to, the High Court of Judicature.
(b) The Chief Justice or a Judge of the High
Court of Judicature appointed by him, shall
from time to time visit and inspect the
proceedings of the courts subordinate to the
High Court of Judicature and shall give such
directions in matters not provided for by law
as may be necessary to secure the due
administration of Justice."
(Underlining supplied)
Clause 12 provided for Ministerial Officers,
Clause 13 provided for appointments and powers of
subordinate Judicial Officers, Clause 14 for place of
sitting, Clause 15 provided for Special
Commissions and Circuit, Clause 16 provided for
requisitions by the Ruler, Clause 17 provided for
confirmation of sentences, Clause 18 for power to
make rules, Clause 19 for admission of Advocates,
Clause 20 for contempt, Clause 21 for pending
cases, Clause 22 provided for consequential changes
in the existing laws, regulations or encasements to
bring them into conformity with the provisions of
the said order and Clause 23 related to Royal
Prerogative, clause (a) whereunder provided for
saving the inherent powers and prerogative of the
Ruler and clause (b) provided as under:
"(b) Except as provided by this order, there
shall be no appeal or revision against the
decree and orders of the High Court of
Judicature for Jammu and Kashmir State".
27. From a perusal of the aforesaid Order, establishing the
High Court of Judicature Jammu and Kashmir, among other things, it is
seen that Clause 11 thereof vested the powers of superintendence in the
High Court and, in exercise of such powers of superintendence, the Chief
Justice and the Judges of the High Court were ordained to inspect the
proceedings of the courts subordinate to the High Court and give such
directions in matters not provided for by law as might be necessary to
secure the due administration of Justice. It is further seen that in terms of
clause (b) under Clause 23, Royal Prerogative, it was categorically said
that there shall be no appeal or revision against the decrees and orders of
the High Court, except as provided by the Order. It, therefore, follows that
there was no appeal provided against the orders containing the directions
as might be given by the Chief Justice or a Judge of the High Court in
exercise of the powers of superintendence.
28. It is reiterated here that the aforesaid Order, establishing the
High Court and containing the aforesaid provisions, was issued on
26.03.1928. Thereafter, the Ruler of the erstwhile State, promulgate
Notification No.43-L/1989 dated 04.01.1933 / 26th Poh, 1989,
consolidating and amending the laws relating to Criminal Procedure in the
erstwhile State vide Act No.XXIII of 1989, titled as the Code of Criminal
Procedure, Svt. 1989 (1933 A. D.). Section 561-A thereof saved the
inherent power of the High Court to make such orders as may be necessary
to give effect to any order under the Code, or to prevent abuse of the
process of any Court or otherwise to secure the ends of justice.
29. On comparison of the powers and their object under
Section 561-A Cr. P. C., corresponding to Section 482 Cr. P. C. now
applicable to the Union Territory, with what was provided in Clause 11 of
the Order No. 01 of 1928, quoted hereinabove, under which the High
Court was created, it is seen that the same are apparently akin to each
other. It is reiterated that in terms of Clause 11 of the 1928 Order, the High
Court, in exercise of the powers of superintendence vested in it, could give
directions to the subordinate courts with a view to securing the
administration of justice, and, in terms of Section 561-A Cr. P. C., the
powers of the High Court (to make such orders as may be necessary to
give effect to any order under the Code or to prevent abuse of the process
of any court or otherwise to secure the ends of justice) appear to have been
saved.
30. It is again reiterated that in Order dated 26.03.1928 there
was no appeal provided against any directions made or given by the High
Court in exercise of the powers of superintendence vested in it thereunder.
Subsequent thereto, on 28.08.1943, the then Ruler of the State granted
Letters Patent to the High Court. The order was saved by virtue of
Sections 102 and 157(3) of the Constitution of Jammu and Kashmir (now
repealed) and stands saved by Section 77 of the Jammu & Kashmir
Reorganization Act, 2019 [Act No.34 of 2019]. Clause 12 thereof has been
already extracted hereinabove. From a perusal of the said Clause 12 of the
Letters Patent, it is seen that yet again there is no appeal provided for
against an order passed or made by the High Court in exercise of the
powers of superintendence. Clause 12 of the Letters Patent has been
already extracted hereinabove. However, for facility of convenience, the
relevant portions of it are again extracted below:
"12. And we do further ordain that an appeal shall lie
to the said High Court of Judicature from the judgment
(...not being a sentence or order passed or made in the
exercise of the power of superintendence) of one Judge of
the said High Court..."
We are of the opinion and have come to the conclusion that
the powers of superintendence vested in the High Court of Jammu
and Kashmir have been and are akin to the inherent powers saved
under Section 561-A of the Code of Criminal Procedure, 1933,
which corresponds to Section 482 Cr. P. C. now applicable in the
Union Territory and, consequently, there has been and is no appeal
provided for against orders passed by a Single Judge of the Court
in exercise of such powers under Section 482 Cr. P. C. before the
Court. Resultantly, no LPA lies against the orders passed by a
Judge of the Court in exercise of the powers under Section 482 Cr.
P. C."
12. we could not find any merit in the submission of Mr. R.A Jan learned
senior counsel appearing for the appellant regarding maintainability of the
Letters Patent Appeal against the impugned order aforesaid passed by the
learned Single Judge. We are, therefore, in agreement with the learned
Advocate General that the matter is squarely covered by the Division Bench
Judgment of this Court (LPA n0. 80/2020 decided on 16.08.2021).
13. In light of above, the LPA is held to be not maintainable and is
dismissed as such together with the connected CM(s)/, if any.
(Puneet Gupta) (Ali Mohammad Magrey),
Judge Judge
Srinagar,
26.05.2021
Ayaz
I. Whether the Judgment is reportable? Yes/No.
II. Whether the Judgment is speaking? Yes/No.
SYED AYAZ HUSSAIN
2022.05.27 16:10
I attest to the accuracy and
integrity of this document
