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2000 DIGILAW 65 (JK)

Mukesh Kapoor v. State Of J. &K.

2000-04-03

A.M.MIR, G.L.RAINA

body2000
A.M. MIR, J. :- This Letters Patent Appeal has been filed against a judgment of a single Judge of this Court (Goel, J.) passed on 18-11-1999 in Criminal Appeal No. 15/94. The order of the learned single Bench was passed while exercising appellate powers of the Court. The appeal taken before the learned single Bench called in question a judgment passed by Sessions Judge, Jammu on 24-10-1994. The Sessions Judge convicted the appellant under Sec. 307, RPC and sentenced him to seven years rigorous imprisonment. Besides this, a fine of rupees one lac was imposed which after realisation was payable to Smt. Veena Kapoor, wife of the appellant. However, in default of payment of fine, the appellant was directed to undergo a simple imprisonment of three years more. A coordinate Bench of this court (Bhawani Singh, C.J. and M. Y. Kawoosa, J. as their Lordships then were), on 30-11-1999 issued notice in the appeal and stayed the order passed by the learned single Bench on 18-11-1999. The first and foremost question in this appeal, to which we would address ourselves, is as to whether this appeal is maintainable. We have heard the learned counsel for the parties in this behalf. The first and foremost question in this appeal, to which we would address ourselves, is as to whether this appeal is maintainable. We have heard the learned counsel for the parties in this behalf. Clause 12 of the J. and K. Letters Patent Rules, (hereinafter called the Rules), reads as under :- "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 exercise of appellate jurisdiction by a court subject to the superintendence of the said High Court, and not being an order made in exercise of revisional jurisdiction, and not being a sentence or order passed or made in 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 hereinbefore 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, consistently with the provisions of the Civil Procedure Code, made 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 where the Judge who passed the judgment declares that the case is fit one for appeal but that the right of appeal from other judgments of the Judges of the said High Court or of such Division Court shall be to Us, Our Heirs or successors and be heard by Our Board of Judicial Advisers for report to Us." A birds eyeview of clause 12, reproduced above, shows that it lays down general principles of maintainability of a Letters Patent Appeal before a Division Bench. It also carves out some exceptions to the maintainability of such an appeal in the following cases :- i) Where a judgment is passed in exercise of appellate jurisdiction in respect of a decree; ii) Where an order is passed in exercise of appellate jurisdiction by a Court, subject to the superintendence of the High Court; iii) Where the order is passed in exercise of revisional jurisdiction; iv) Where a sentence or order is passed in exercise of powers of superintendence. The argument advanced by Mr. The argument advanced by Mr. Sakal Bhushan, learned counsel appearing for the appellant, was that the order of the learned single Bench in this case is not passed in exercise of powers of superintendence, therefore, does not fall within the exceptions carved out by clause 12. We have also gone through the memorandum of argument filed by him, after he was heard at length. He tried to amalgamate exceptions (i) and (ii) and wanted us to believe that exception No. (ii) independently does not exist. We have applied our mind to the marked punctuation marks employed in the clause. The word "or" used between the expression "decree and order" separates the two exceptions and the second exception comes to an end after a comma is suffixed after the expression "an order made in exercise of revisional jurisdiction". Thus when an order is passed by the High Court in exercise of its appellate jurisdiction in respect of a finding returned by a court, subject to its superintendence, no further appeal can, in our opinion, lie before a Division Bench. The Code of Criminal Procedure provides for only an appeal before the High Court. That appeal has been decided by the learned single Bench. Letters Patent Rules cannot be construed in such a way so as to provide another extra statutory forum for appeal. Section 410 of the Code of Criminal Procedure provide for appeals and under this provision an appeal shall lie before the High Court. Same stands countenanced by clause 16 of the Rules. It will also be pertinent to refer to rule 29 of the J. and K. High Court Rules, 1999. Sub-rule (9) of Rule 29 vests the power of appeal or reference with a Division Bench in the following cases : a) Where the accused is sentenced to death or imprisonment for life. b) Where sentence exceeding ten years has been passed; c) Where an order of acquittal in terms of Section 417(2), Cr. P.C. has been passed; and d) A case submitted to the Court under Section 307 or 425, Cr. P.C. Obviously it will be erroneous on our part to believe that law can arm a Division Bench of this Court both with the powers of sitting in judgment against Sessions Judges orders, as also one passed by a single Judge of this Court in exercise of appellate jurisdiction. P.C. Obviously it will be erroneous on our part to believe that law can arm a Division Bench of this Court both with the powers of sitting in judgment against Sessions Judges orders, as also one passed by a single Judge of this Court in exercise of appellate jurisdiction. This is how this court has never accepted a Letters Patent Appeal against the finding of a single Bench passed on appellate side in terms of the Code of Criminal Procedure. We accordingly hold that no Letters Patent Appeal against the impugned order would lie. We, therefore, dismiss this appeal and vacate the order passed by the Coordinate Bench on 30-11-1999. Learned single Bench has cancelled the bail bonds of the appellant and directed him to surrender. That order shall be implemented by the trial court forwith. Record be sent back. Appeal dismissed.