Letters Patent Appeal not maintainable against the Order passed under Section 482 CrPC: J&K High Court

Joint complaint
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  • Post published:August 21, 2021
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In a significant judgment, the J&K High Court has held that Clause 12 of the Letters Patent does not provide for an appeal to the High Court against an order made by the High Court in exercise of powers under Section 482 CrPC.

The Court while hearing LPAs has observed that Powers of Superintendence vested in the High Court are similar to the inherent powers saved under Section 482 CrPC and there has been no appeal provided for against the orders passed by a Single Judge of the Court in exercise of such powers under Section 482 CrPC before the Court. Therefore, no LPA lies against the orders passed by a Judge of the Court in exercise of the powers under Section 482 CrPC.

Issues before the Court:

The Division Bench of the J&K High Court comprised of Justice Ali Mohammad Magrey and Justice Sanjay Dhar were hearing a two clubbed Letters Patent Appeals (LPAs) filed against the orders passed by two different Single Judges of this Court in petitions under Section 482 of the Code of Criminal Procedure, 1973 and both the LPAs were questioned with regard to their maintainability in terms of Clause 12 of the J&K Letters Patent of 1943.

Bone of Contention:

The appellants contented that the powers 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 inherent powers are not the same as powers of superintendence.

On the other hand, the respondents objected the maintainability of the LPAs 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 learned Single Judge in exercise of power of  superintendence of the Court is not available and, therefore, these LPAs are not  maintainable.

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Observations of the Court:

The Court observed that Clause 12 of the Letters Patent 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 CrPC.

Relevant Extract of Clause 12 of the Letters Patent:

“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……”

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The Court also determined the question that whether powers provided under Section 482 CrPC are akin to the powers of Superintendence of the Court?

The Court said

“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….”

The Court further observed that “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 CrPC 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.”

In view of the above facts and circumstances, the Court dismissed both the LPAs for being not maintainable.

Case Details: