Excelsior Correspondent
Srinagar, Aug 16 : In a significant judgment High Court today held that no appeal shall lie against the order of a Single Judge sitting as a criminal court, in exercise of powers under Section 482 of Criminal Procedure Code (Cr.PC).
Dismissing the two Letters Patent Appeals (LPAs) in a common judgment, whereby Single Judge orders were challenged under section 482 (Cr. PC) which has come into force to the J&K after abrogation of Article 370 and formation of Union Territory.
The division bench of Justice Ali Mohammad Magrey and Justice Sanjay Dhar dismissed both the appeals with 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 (Now Section 482) of the Code of Criminal Procedure.
Court said the 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”, DB concluded.
The DB has however made it clear that the decision and conclusion is based on the subject of the LPAs qua the orders passed by Subordinate Criminal Courts and in case any other issue, which is not raised in these appeals for consideration, that is left open and will be decided in appropriate cases.
The question arising for determination in both these LPAs was raised by the court of Chief Justice while hearing these appeals on last date of hearing and had sought opinion of all lawyers in order to address the issue of maintainability of LPAs against the Single Judge order under Section 482 of CrPC.
The question arising of determination in both the appeals was about their maintainability under Clause 12 of the J&K Letters Patent of 1943. Therefore, the two LPAs were taken up and heard together on the said question of law, and were being dealt with by the common order by the court.
In one of the LPA, the appellant filed a petition under Section 482 Cr. P. C. before the single judge, seeking quashing of orders of trial court in a domestic violence issue and paying of maintenance to the victim.
That petition was dismissed by the Single Judge of the High Court, finding it to be without any merit. The instant LPA has been filed under Clause 12 of the Letters Patent challenging the aforesaid order of Single Judge with under Section 482 Cr. P. C.
The roots of the second LPA is of a complaint under Section 138 of Negotiable Instruments Act (bouncing of cheques) in which the trial Magistrate issued process against the appellant. The appellant filed a petition, under Section 561-A Cr. P. C. before the Single Judge, seeking quashing of the aforesaid complaint.
The Single Judge by order dismissed the petition as being without merit. The petitioner in the petition has challenged the order of the Single Judge by filing the present LPA. Court said, the objection to the maintainability of these LPAs is taken on the ground that the inherent powers exercised by the High Court under Section 482 Cr. P. C. are supervisory in nature and in terms of Clause 12 of the Letters Patent applicable to the High Court of Jammu and Kashmir, intra Court appeal against an order passed by a Single Judge in exercise of power of superintendence of the Court is not available as such held that the LPAs in hand are not maintainable.
Referring the Section 374 of Cr.PC court said 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. “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”, reads the judgment.
The counsel appearing for the other side 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.
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