Excelsior Correspondent
SRINAGAR, Oct 19: The Division Bench of High Court has referred a matter pertaining to challenge of writ court directions in a criminal jurisdiction for the consideration as to whether the appeal against the writ court in criminal jurisdiction is to be heard by the Division Bench of this High Court or not.
The Division Bench of Justice Sanjeev Kumar and Justice Sanjay Dhar has referred a Letters Patent Appeal (LPA) to the larger bench as the counsel for the other side raised the preliminary objection with regard to maintainability of the LPA against the writ court verdict in criminal case while referring the ruling of coordinate bench of High Court.
It is noted that the coordinate bench of High Court in case titled ‘Shamshada Akhter Vs State’ has already expressed that no LPA against the writ court judgment of criminal jurisdiction would lie before this court.
The DB while expressing its doubt about the correctness of the ratio laid down by the Coordinate Division Bench in the case raised an issue on the maintainability of a Letters Patent Appeal against an order or judgment passed by a Single Judge in a matter of criminal jurisdiction and before deciding the appeal opined that the issue is required to be decided independently by a larger bench.
The DB has referred two questions as to be decided by the larger bench viz, Whether a Letters Patent Appeal (LPA) under Clause 12 of the Letters Patent applicable to this Court is maintainable against an order or judgment passed by a Single Judge in exercise of its criminal jurisdiction.
If the answer to this issue is in affirmative by the larger bench, then the DB seeks clarification from the larger bench as to what category of judgments or orders passed by a Single Judge in exercise of its criminal jurisdiction would be amenable to Letters Patent jurisdiction of the High Court.
The DB directed the Registry to place the matter before the Chief Justice for passing appropriate orders relating to reference of these questions of law to a larger bench in terms of provision to Rule 33 of J&K High Court Rules, 1999.
“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 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”, DB said.
The court as such prima facie, viewed that a Letters Patent Appeal has a wider scope than a review petition in the sense that under the Letters Patent jurisdiction, a Division Bench of the Court can not only interfere in the judgment/order of a Single Judge on the ground of patent error, but it would also be open to a Letters Patent Bench to interfere in the orders of the Single Judge if the same are found to be illegal or perverse.
It is noted that the coordinate bench of this High Court in “Shamshada Akhter’s” after analyzing the legal position, came to the conclusion that the powers of superintendence vested in the High Court are akin to the inherent powers under Section 482 of the Code of Criminal Procedure and, consequently, in view of exclusion of orders made in exercise of powers of superintendence from the purview of Letters Patent Appeal, in terms of Clause 12 of the Letters Patent of this Court, recorded that no LPA would lie challenging such orders.
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