Rohit Sharma vs Rukhsana Begum
2023 Latest Caselaw 2158 j&K

     HIGH COURT OF JAMMU AND KASHMIR & LADAKH
                     AT JAMMU

                                             LPA No. 154/2023 (O&M)

                                             Reserved on:        15.09.2023
                                             Pronounced on:      04.10.2023

Rohit Sharma
S/o Sh. Trilochan Kumar
R/o Bhour Camp, Ward No. 2, Chatha
Jammu
I/C Police Post Goha Marmat, Doda.
I.O. in FIR No. 106/2023
Registered in Police Station Doda.                             ...Appellant(s)

                 Through :- Mr. Ankur Sharma, Adv.
                 v.

1.    Rukhsana Begum
W/o Aftab Hussain R/o Rushoo Marmat
Tehsil Marmat, District Doda.

2.    The Station House Officer
Police Station Doda.                                       ....Respondent (s)

                 Through :- None.


Coram:      HON‟BLE THE CHIEF JUSTICE
            HON‟BLE MR. JUSTICE RAJESH SEKHRI, JUDGE


                               JUDGMENT

(Rajesh Sekhri-J)

1. An FIR came to be registered against the appellant, by respondent

No.2, on the directions of learned Additional Special Mobile Magistrate,

Doda (hereinafter referred to as the trial court), on an application preferred

by respondent No.1, in terms of Section 156(3) of Code of Criminal

Procedure, 1989 (for short, Cr.P.C.). The appellant invoked inherent

jurisdiction of this Court under Section 482 Cr.P.C. to implore for

quashment of the said order dated 24.08.2023, passed by learned trial court,

which petition came to be dismissed by learned Single Judge of this Court on

04.09.2023.

2. The appellant has invoked Rule 12 of Letters Patent Rules for

quashment of both the orders dated 04.09.2023, passed by learned Single

Judge of this Court and 24.08.2023 passed by learned trial court on multiple

grounds urged in the memo of appeal.

3. Heard and perused.

4. It is by far a crystallized position of law and no longer remains res

integra now that in terms of Rule 12 of Letters Patent of J&K, intra court

appeal against an order passed by a Single Judge of this Court, in exercise of

inherent powers envisaged under Section 482 Cr.P.C., is not maintainable. A

Co-ordinate Bench of this Court in Shamshada Akhter v. Aijad Parvaiz

Shah AND Parvez Ahmad Fafoo v. Imtiyaz Ahmad Tak [LPA No. 80 of

2020 & LPA No. 84 of 2021 decided on 16.08.2021] has already set the

controversy at naught, insofar as applicability of Rule 12 of Letters Patent

against an order passed by a Single Judge of this Court in exercise of powers

under Section 482 Cr.P.C. (pari materia to Section 561-A of J&K Cr.P.C.,

which stands repealed now) is concerned by holding that no appeal is

provided for against an order passed by a Single Judge of this Court under

Section 482 Cr.P.C. Relevant excerpt of the judgment reads thus:

"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 order passed by a Jude of this Court in exercise of the powers under Section 482 Cr.P.C."

5. Aside another Co-ordinate Bench of this Court in Abdul Qayoom

Khan and anr. v. State of J&K and ors. [LPA No. 265 of 2022 decided

on 02.08.2023] of which one of us (Sekhri-J) was a Member has ruled that

even a petition under Article 226 of the Constitution of India, which has a

colour of a petition under Section 482 Cr.P.C., against an order passed by a

Single Bench of this Court in exercise of criminal jurisdiction, is not

maintainable.

6. Incidentally, in both Shamshada Akhter and Abdul Qayoom Khan

(supra) submissions were made by the rival factions on the basis of Ram

Kishan Fauji v. State of Haryana and ors. reported as 2017 (5) SCC 533

whereby a distinction was sought to be drawn between Letters Patent

applicable to the erstwhile High Courts of Punjab and Lahore and Letters

Patent applicable to the High Court of J&K. It was argued that though

Letters Patent applicable to this Court, on first blush, appears to be in pari

materia to the Letters Patent as applicable to the High Courts of Punjab and

Lahore, however, there was a marked difference, if the Letters Patent of this

Court are read in juxtaposition to Letters Patent of High Court of Punjab and

Lahore. It was submitted that while Rule 10 of Letters Patent applicable to

the High Courts of Punjab and Lahore excludes the appellate jurisdiction

against an order passed by a Single Judge of the said High Court in exercise

of its criminal jurisdiction, the said provision of exclusion of appellate

jurisdiction against a Single Judge order exercising criminal jurisdiction was

conspicuous by its absence in Rule 12 of Letters Patent applicable to this

Court. Therefore, it was urged that since Rule 12 of the Letters Patent of this

Court does not bar the appellate jurisdiction of this High Court against an

order of a Single Judge in exercise of its criminal jurisdiction, Ram Kishan

Fauji (supra) was distinguishable and LPA was maintainable.

7. However, both the Co-ordinate Benches of this Court in Shamshada

Akhter and Abdul Qayoom Khan (Supra) are consistent in their views that

no appeal under Rule 12 of Letters Patent of this Court is maintainable

against an order passed by a Single Judge of this Court in exercise of

criminal jurisdiction under Section 482 Cr.P.C. or under Article 226 of the

Constitution of India, bearing a colour of a petition under Section 482

Cr.P.C.

8. This Court in Shamshada Akhter has held that power of

superintendence vested in this Court is akin to the inherent power of this

court saved under Section 561-A Cr.P.C. (now repealed), corresponding to

Section 482 Cr.P.C., now applicable to this Union Territory and

consequently, no appeal is provided for against an order passed by a Single

Judge of this Court in exercise of criminal jurisdiction under Section 482

Cr.P.C. Subsequent Co-ordinate Bench of this Court in Abdul Qayoom

Khan in a quest to determine whether, once a petition under Section 482

Cr.P.C. or under Article 226 of Constitution of India, with trappings of a

petition under Section 482 Cr.P.C., has been decided by the High Court, an

appeal against the said order can be entertained by a Division Bench of this

Court under Letters Patent, examined section 362 Cr.P.C. to hold that a

Division Bench while exercising appellate jurisdiction under the Letters

Patent, does not act as an appellate Court per se. The Bench held so, on the

basis of observation made by Hon'ble Supreme Court in Baddula

Lakshmaih v. Sri Anjaneya Swami Temple reported as 1996 (3) SCC 52

that 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 learned Single

Judge of the High Court. Relevant excerpt of the observation made by

Hon'ble Supreme Court in Baddula Lakshmaih (supra) reads as under:

".......Against the orders of the trial court, first appeal lay before the High Court, both on facts as well as law. It is the internal working of the High Court which splits it into different „Benches‟ and yet the court remains one. A Letters Patent Appeal, as permitted under the Letters Patent, is normally an intra-court appeal whereunder the Letters Patent Bench, sitting as a Court of Correction, corrects its own orders in exercise of the same jurisdiction as was vested in the Single Bench. Such is not an appeal against an order of a subordinate court. In such appellate jurisdiction the High Court exercises the powers of a Court of Error. So understood, the appellate power under the Letters Patent is quite distinct, in contrast to what is ordinarily understood in procedural language....".

9. Therefore, the subsequent Bench of this Court in Abdul Qayoom

Khan has concluded that even in the absence of Bar of appellate jurisdiction

under Rule 12 of Letters Patent of this Court, against an order passed by a

Single Judge of this Court, in exercise of criminal jurisdiction, an appeal

would still be not maintainable in view of express bar contained in Section

362 Cr.P.C. whereby no Court, after it has signed its judgment or final order

disposing of a case can alter or review the same except to correct a

clerical/arithmetical error or where the judgment or the order of Single Judge

is downright perverse. The bench clearly observed that since a Division

Bench under the Letters Patent only reviews the orders passed by a Single

Judge, as a court of correction only, as held by Apex Court in Baddula

Lakshmaih, therefore, review of an order by a Court finally disposing of a

case and signing its judgment or final order is prohibited under Section 362

Cr.P.C., except to correct a clerical/arithmetical error or utter perversity.

Relevant excerpt of the judgment of Abdul Qayoom Khan reads thus:

"17. Thus, we hold that the absence of a bar on an appeal before the Division Bench under the Letters Patent applicable to this Court, from an order passed by a single judge under the writ jurisdiction, disposing finally a criminal case, the same would still be prohibited in view of the specific bar of s. 362 Cr.P.C, precluding the review of a judgment disposing a criminal case, in view of what we have held hereinabove that the Division Bench under the Letters Patent only reviews the order of the single judge as a "Court of Correction", and a review of an order disposing a criminal case is prohibited by s. 362 Cr.P.C. Holding otherwise, it would militate against the rule of law enshrined in the maxim Quando aliquid prohibetur ex directo, prohibetur et per obliquum or, that what cannot be done directly, cannot be done indirectly. If the proposition of the Ld. Counsels for the appellants are accepted, it would render the bar of s. 362 Cr.P.C otiose. Such was never the intention of the legislature which in its wisdom felt that once a criminal court had finally disposed a case, the same Court must not revisit it in review."

10. It is manifest from the aforequoted observations made by the Co-

ordinate Benches of this Court in Shamshada Akhter and Abdul Qayoom

Khan read in juxtaposition to Baddula Lakshmaih (supra) of Hon'ble

Supreme Court, that Rule 12 of Letters Patent of this Court against an order

passed by a Single Judge of this Court, in exercise of its criminal

jurisdiction, cannot be invoked and LPA is not maintainable.

11. Mr. Ankur Sharma, learned counsel appearing for the appellant has, in

the alternative, argued that since the conclusion arrived at by the Co-ordinate

Bench in Shamshada Akhter was based on the subject of the Letters Patent

Appeals qua the order passed by the subordinate criminal courts and since

other issues not raised in the said appeals for consideration were left open to

be decided in an appropriate cases, therefore, the present case is required to

be referred to Full Bench of this Court.

12. A reference to a larger Bench can be made by Hon'ble the Chief

Justice of this Court under Rule 33 of the J&K High Court Rules, 1999

which reads as below:

"33. Reference to a large bench

The Chief Justice may constitute a bench of two or more judges to decide a case or any question of law formulated by a bench hearing the case. In the later event the decision of the such bench on the question so formulated shall be returned to the bench hearing the case and that bench shall follow that decision on such question and dispose of the case after deciding the remaining questions, if any, arising therein:

Provided that whenever in any case a Division Bench differs from any other Division Bench of the Court on a point of law or usage having the force of law such case or point shall be referred for decision by a larger bench to be constituted by the Chief Justice."

13. On the grammatic construction of Rule 33 (supra), it is manifest that

Hon'ble Chief Justice is vested with the administrative power to refer a

matter to the larger Bench of two or more judges. If the aforesaid rule is

carefully glanced over, it comes to the fore that Hon'ble Chief Justice can

exercise this power in three situations. In the first instance, he can order that

a pending case instead of being heard by a Single Bench or a Division Bench

of this Court may be heard by a larger Bench. Secondly, he may constitute a

larger bench of two or more judges to decide any question of law formulated

by a bench hearing the case. In the later case, the decision of the larger bench

is returned to the referral bench hearing the case and the said bench shall be

obliged to follow the decision of the larger bench and decide the case, after

of course deciding the remaining questions, if any, arising in the case.

Finally, Hon'ble Chief Justice is also vested with the power to constitute a

larger bench under the proviso appended to Rule 33, in any case a Division

Bench differs from any other Division Bench of this court on a point of law

or usage having the force of law.

14. In the present case, neither Hon'ble Chief Justice desires to constitute

a larger bench for deciding a pending case nor any question of law

formulated by a bench of this court has been referred for constitution of a

larger bench. It appears that learned counsel for the appellant seeks reference

of the present case to a larger bench under proviso appended to Rule 33. It is

trite principle of law of interpretations that a proviso appended to a particular

provision of a statute only embraces the field which is covered by the main

provision. The proviso is generally carved out as an exception to the

substantive provision. The object of a proviso is to qualify a situation which

is contemplated by the principal clause of the said provision.

15. A perusal of the aforesaid proviso appended to Rule 33 would

indicate that a reference to a larger bench is maintainable only if there is

decision of Division Bench of this Court on a point of law or usage having

the force of law; the said point of law or usage having the force of law has

come up for consideration before a subsequent Division Bench of this Court;

the subsequent Division Bench differs from earlier Division Bench of this

Court on said point of law or usage having the force of law; and the

subsequent Bench formulates the points on which it seeks to differ from the

earlier Bench, and consequently, a request is made to the Chief Justice for

constitution of a larger Bench for decision on the said point of law or usage

having the force of law. All the four conditions must co-exist in order to

enable the Lord Chief Justice to constitute a larger Bench for decision on a

point of law or usage having the force of law.

16. However, in the present case, as discussed earlier, there has been

consistency in the opinion of two co-ordinate benches of this Court that intra

court appeal is not maintainable against an order passed by a Single Judge of

this court, in exercise of criminal jurisdiction. There is neither division of

opinions between two Division Benches of this Court nor any question of

law has been formulated by any bench of this Court hearing a case. Be that

as it may, learned counsel for the appellant has also failed to point out any

substantial question of law, which requires consideration by a larger Bench

of this Court. A reference cannot be made by the Lord Chief Justice on mere

asking of a party and same can be made by him to the larger Bench only if

requirements of Rule 33 of J&K High court Rules are satisfied.

17. Having regard to what has been observed and discussed above, what

comes to fore is that the present LPA under Rule 12 of the Letters Patent

Rules of this Court is not maintainable because there is no provision in the

Letters Patent Rules to entertain an intra court appeal against an order passed

by a Single Judge of this Court in exercise of criminal jurisdiction. Hon'ble

Chief Justice is vested with the powers to constitute a larger bench and make

a reference only if conditions of Rule 33 of the Jammu and Kashmir High

Court Rules, 1999 are satisfied. Hence, the present appeal is dismissed.

                        (RAJESH SEKHRI)                     (N. KOTISWAR SINGH)
                             JUDGE                            CHIEF JUSTICE
Jammu
04.10.2023
Paramjeet
                             Whether the order is speaking?       Yes.
                             Whether the order is reportable?     Yes.