HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

LPA No. 204/2023

CM No. 6177/2023

Reserved On: 10

th

of September, 2024

Pronounced On: 19

th

of September, 2024.

Khursheed Ahmad Chohan, Age: 45 Years

S/O Late Ghulam Mustafa Chohan

R/O Ibkoot Karnah, District Kupwara.

… Appellant(s)

Through: -

Mr B. A. Bashir, Senior Advocate with

Ms Falak Bashir, Advocate.

V/s

1. Union Territory of Jammu & Kashmir through

Commissioner/ Secretary to Government,

Home Department, Civil Secretariat, Srinagar/ Jammu.

2. Deputy Inspector General of Police,

North Circle, Kupwara/ Baramulla.

3. Senior Superintendent of Police, District Kupwara.

4. Station House Officer, Police Station, Kupwara.

5. Incharge, Joint Interrogation Centre, Kupwara.

… Respondent(s)

Through: -

Mr Mohsin-ul-Showkat Qadri, Sr. AAG with

Ms Maha Majeed, Assisting Counsel; and

Mr Faheem Nisar Shah, Government Advocate.

CORAM:

HON’BLE THE CHIEF JUSTICE (ACTING)

HON’BLE MR JUSTICE M. A. CHOWDHARY , JUDGE

(JUDGMENT)

[Chowdhary-J:]

1. The Appellant, through the medium of this Letters Patent

Appeal, has challenged the Judgment dated 18

th

of September, 2023 passed

by the learned Single Judge in WP (C) No. 592/2023, whereby the said Writ

Petition filed by the Appellant had been allowed, but inquiry and thereafter

investigation has been entrusted to the same person, against whom the Writ

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Petition was filed, seeking setting aside/ modification of that part of the

Judgment.

2. Shorn of minute details, the facts pleaded by the Appellant as

Writ Petitioner before the Writ Court, as emerge from the pleadings on

record, are that the Appellant/ Writ Petitioner, who was a Selection Grade

Constable (SGCt) in the J&K Police and posted at District Police Lines,

Baramulla, alleged that he was summoned by Respondent No.3-Senior

Superintendent of Police, Kupwara by a signal dated 17

th

of February, 2023

to present himself in his office on 20

th

of February, 2023 in connection with

an inquiry relating to a narcotic case; that after leaving District Police

Lines, Baramulla on 20

th

of February, 2023 at around 11:45 AM, after

recording his departure in the daily Diary, he reached the office of

Respondent No.3, wherefrom he was taken to the Joint Interrogation Centre

(JIC) Kupwara, where he was subjected to brutal torture, mutilating/

amputating his body/ private parts and, thereafter, in a half-dead state, was

shifted to District Hospital, Kupwara and, subsequently, to SKIMS, Soura,

Srinagar, in a serious condition accompanied by Sub-Inspector Ashiq

Hussain; that at SKIMS Soura, he was admitted for treatment and was

advised for an immediate surgery;

2.1. It is further stated that, while being admitted in SKIMS, Soura,

the wife of the Appellant/ Writ Petitioner approached the Respondent No.4-

Station House Officer (SHO), Police Station, Kupwara, for registration of

an FIR with respect to his custodial torture and amputation of his body parts

against the accused police personnel, however, on his failure to register the

same, the wife of the Appellant/ Writ Petitioner approached the Respondent

No.3 for doing the needful, who, too, did not take any action in the matter,

resulting into serving of a legal notice by the wife of the Appellant/ Writ

Petitioner upon the Respondent Nos. 2 to 4, through her Counsel.

2.2. The Appellant/ Writ Petitioner alleged that the Respondents,

who were under a legal obligation to register a case for investigation for his

custodial torture, did not take any action on the complaint filed by his wife,

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as such, he moved a Petition bearing WP (C) No. 592/2023 before this

Court under Article 226 of the Constitution of India, seeking direction to

the Respondents to register a case for investigation of the complaint filed by

his wife. The aforesaid Petition was maintained by the Appellant/ Writ

Petitioner, inter alia, on the ground of violation of rights of the Appellant/

Writ Petitioner by the Respondents guaranteed under Article 21 of the

Constitution of India, as also of the blatant breach of the directions issued

by the Apex Court in case titled “Lalita Kumari v. Government of Uttar

Pradesh & Ors.”, reported as “(2014) 2 SCC 1” qua the registration of an

FIR.

3. On 17

th

of March, 2023, when the matter came up before the

Writ Court, the Respondents were directed to file a Status Report of the

Complaint claimed to have been lodged by the wife of the Appellant/ Writ

Petitioner on 18

th

of February, 2023 and the said information came to be

furnished suggesting that a case was registered vide FIR No. 32/2023

regarding the incident on 25

th

of February, 2023, however, not on the

Complaint of the wife of the Appellant/ Writ Petitioner and, as such, the

Respondent Nos. 3 and 4 were directed to file Reply to the Petition by or

before 28

th

of March, 2023.

4. Pursuant to the directions of the Writ Court, the Response/

Status Report was filed by the Respondents, stating therein that on 26

th

of

March, 2023, a written docket was received from one Sub Inspector-

Muneer Ahmad, Incharge, Police Post Tad, Karnah, Camp JIC, Kupwara, to

the effect that, while being in the Camp for questioning in NDPS cases,

including FIR No. 17/2023 registered for the commission of offences

punishable under Sections 8/21/29 of the NDPS Act in Police Station

Karnah, the Appellant/ Writ Petitioner was kept in a barrack for further

questioning, where he himself cut his private part using shaving razor blade

and the said act, being an attempt to suicide, necessitated registration of FIR

No. 32/2023 on 26

th

of March, 2023 under Section 309 of the Indian Penal

Code (IPC) and the investigation was commenced. It was further stated in

the Response that, during the course of investigation, it got revealed that the

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presence of the Appellant/ Writ Petitioner was sought by the police owing

to his involvement in various cases registered at Police Station, Karnah,

including FIR No. 01/2023 registered for the commission of offences

punishable under Sections 7/25 of the Indian Arms Act, 8/21/29 of the

NDPS Act and 13, 18, 20, 23 and 37 of the UA (P) Act and FIR No.

17/2023 registered for the commission of offences punishable under

Sections 8/21/29 of the NDPS Act and that approximately 9.450 KG of

heroin, 05 pistols, 10 pistol magazines, 77 pistol rounds, 04 grenades, 01

pistol cleaning rod and a pistol user guide were recovered during

investigation of said FIR No. 01/2023, whereas, 2.674 KG of heroin was

recovered in FIR No. 17/2023 (supra).

4.1. The Appellant/ Writ Petitioner reported in the Joint

Interrogation Centre (JIC), Kupwara on 21

st

of February, 2023, however,

due to further leads, he was asked to report again on 22

nd

of February, 2023,

whereafter, he was advised to remain available on each day, owing to the

requirement of his presence in the investigation and that since the

Appellant/ Writ Petitioner resided at a far-off place from the Joint

Interrogation Centre (JIC) in question, the Appellant/ Writ Petitioner, as

such, himself preferred to stay in the Centre itself in a barrack, along with

other police personnel; that on 25

th

/26

th

of February, 2023, one of the

accomplices of the Appellant/ Writ Petitioner was apprehended with a

consignment of heroin at Karnah and the said arrest of his accomplice

triggered panic in the Appellant/ Writ Petitioner and, due to fear of being

exposed, the Appellant/ Writ Petitioner tried to commit suicide at around

11:15 AM, while he was resting on his bed in the barrack in the Centre,

where few more police personnel were present.

4.2. The investigation of the case is in progress with regard to the

Complaint filed by the wife of the Appellant/ Writ Petitioner, which had

been received in the Police Station on 15

th

of March, 2023 and since the

investigation had been already initiated in the incident alleged in the

Complaint in FIR No. 32/2023 (supra), as such, the said Complaint was

made part of the aforesaid FIR; that, in presence of an FIR already

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registered in the incident, another FIR could not be registered in view of the

law laid down by the Apex Court in case titled “T. T. Antony v. State of

Kerala, reported as “AIR 2002 SC 2637”.

5. Thereafter, the Writ Court, on consideration of the matter and

upon perusal of the CD file of FIR No. 32/2023 (supra), directed the

Respondent No.3 to hand over the investigation of the case to an Officer of

the rank of Deputy Superintendent of Police, with a further direction to file

Status Report of the investigation of the said FIR.

6. Having received the information with regard to the registration

of a case vide FIR No. 32/2023 for an attempt to commit suicide against the

Appellant/ Writ Petitioner, he sought quashment of the FIR by filing

another Petition bearing CRM (M) No. 111/2023, invoking the inherent

powers of this Court in terms of Section 482 of the Code of Criminal

Procedure (Cr. P. C.), wherein this Court, vide Order dated 3

rd

of April,

2023, directed continuation of the investigation in the FIR in question with

a further direction that in the process of investigation, the Appellant/ Writ

Petitioner be not subjected to any kind of harassment.

7. In compliance to the aforesaid direction passed by the Writ

Court, a Compliance Report was filed on 26

th

of April, 2023, reiterating the

facts stated in the earlier Status Reports. It was further stated that the

investigation of the case FIR No. 32/2023 (supra) had been handed over to

the Dy. SP, DAR, Kupwara, however, the Appellant/ Writ Petitioner, as

accused, had not presented himself for investigation and that the

investigation conducted points towards the fact that the injuries appear to

have been self-inflicted by the Appellant/ Writ Petitioner. It was also

pleaded by the Respondents that the investigation was still going on,

exploring the case from all possible angles.

8. The Respondents opposed the relief sought in the Petition by

the Appellant/ Writ Petitioner filed under Section 482 of the Code of

Criminal Procedure (Cr. P. C.), on the ground that as per the investigation

conducted in the FIR impugned, the Appellant/ Writ Petitioner had self-

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inflicted the injuries with the intention to commit suicide, owing to

surfacing of his involvement in multiple narcotic cases.

9. The Writ Court, vide the impugned Judgment dated 18

th

of

September, 2023, had disposed of both these clubbed Petitions filed by the

Appellant/ Writ Petitioner through the medium of a common Judgment.

10. The Writ Court, after discussing the law laid down in T. T.

Anthony’s case (supra), came to the conclusion that the second FIR has

been held to be impermissible only when the same is against the same

accused and for the same offence for which the FIR had already been

registered. The Writ Court further recorded that perusal of the record of the

case, facts and circumstances obtaining in the matter as also the Status

Reports filed by the Respondents, indicate that the Appellant/ Writ

Petitioner was called to the Joint Interrogation Centre (JIC), Kupwara by

the Respondents on 20

th

of February, 2023, whereas, the FIR came to be

registered on 23

rd

of February, 2023, i.e., after the Appellant/ Writ

Petitioner was called for interrogation and that this sole fact creates a

reasonable doubt in the very story projected by the Respondents, coupled

with the fact that the Appellant/ Writ Petitioner, himself a police personnel

and alleging custodial torture by the fellow police personnel, being a

serious issue, thus, necessitates an enquiry as contemplated by the Apex

Court in Lalita Kumari’s case (supra).

11. The Writ Court, thus, rejected the plea raised by the

Respondents that the Petition filed by the Appellant/ Writ Petitioner under

Article 226 of the Constitution was not maintainable by holding that the

same was maintainable and, accordingly, disposed of the Writ Petition with

a direction to the Respondent No.3-Senior Superintendent of Police,

Kupwara to conduct an indepth enquiry into the allegations of custodial

torture by the wife of the Appellant/ Writ Petitioner in the Complaint filed

by her as also by the Appellant/ Writ Petitioner in the Petition, without any

further delay preferably within a period of eight weeks and, if upon such

enquiry, the Respondent No.3 finds that the commission of an offence is

made out, he shall direct registration of FIR forthwith against the accused

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persons involved in the same and entrust the investigation of the case to a

Police Officer not below the rank of the Deputy Superintendent of Police.

12. The Writ Court, however, in the clubbed Petition bearing CRM

(M) No. 111/20213, filed by the Appellant/ Writ Petitioner, under Section

482 of the Code of Criminal Procedure (Cr. P. C.) declined to exercise

inherent powers and, accordingly, proceeded to dismiss the said Petition,

allowing the Respondents to go ahead with the investigation of the case of

attempt to commit suicide against the Appellant/ Petitioner, registered vide

FIR No. 32/2023 at Police Station, Kupwara.

13. The Appellant/ Writ Petitioner, having been aggrieved of the

Judgment rendered by the learned Single Judge in both the cases, filed the

instant Letters Patent Appeal invoking intra Court Appellate Jurisdiction of

this Court against the Judgment passed in the Petition filed by him under

Article 226 of the Constitution of India, being WP (C) No. 592/2023, and

also filed a Special Leave Appeal before the Apex Court against the

Judgment passed in the Petition filed by him under Section 482 of the Code

of Criminal Procedure (Cr. P. C.), being CRM (M) No. 111/2023.

14. The Appellant has assailed the impugned Judgment passed by

the learned Single Judge in Writ Petition bearing WP (C) No. 592/2023

before this Court on many grounds, as enumerated in the memorandum of

instant appeal, and prayed that the impugned Judgment of the Writ Court

dated 18

th

of September, 2023 may be modified only to the extent that the

matter be referred to the Central Bureau of Investigation (CBI) for

investigation with appropriate directions to register FIR forthwith, without

initiating of any inquiry before registration of FIR in view of the mandate of

law rendered by a Constitution Bench of the Apex Court in Lalita

Kumari’s case (supra).

15. Mr B. A. Bashir, the learned Senior Counsel, appearing on

behalf of the Appellant/ Writ Petitioner, argued that in view of the law laid

down by the Apex Court on the subject, it was incumbent upon the

Respondents to register a case in the matter when a cognizable offence is

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disclosed on the allegations made in a complaint and that no enquiry

preceding that is required to be conducted. He has argued that, though the

Writ Court held that even in presence of an FIR registered by the

Respondents with regard to same incident for having committed an attempt

to commit suicide punishable under Section 309 IPC against the Appellant/

Writ Petitioner himself, a counter FIR is permissible to be registered on the

allegations of the Appellant/ Writ Petitioner, for having been subjected to

custodial torture by the police officials during his custody. He has also

highlighted that from the facts and circumstances of the case, as have been

discussed by the Writ Court, it is evident that the Appellant/ Writ Petitioner

was, as per the Status Reports filed by the Respondents themselves, called

to the Joint Interrogation Centre (JIC), Kupwara before registration of the

case, for which he was allegedly required, which creates a reasonable doubt

about the veracity of the FIR registered against him.

16. The learned Senior Counsel would further argue that, though

the Writ Court had acceded to the contention of the Appellant/ Writ

Petitioner, however, instead of directing the Respondents to straightway

register an FIR, based on the Complaint lodged by the wife of the

Appellant/ Writ Petitioner, the learned Writ Court had directed the

Respondent No.3 to hold an enquiry, at the first instance, and, in case in the

enquiry, it was found that some offence has been committed, he may

proceed to direct for registration of a case by lodging an FIR in the matter.

He has argued that the Appellant/ Writ Petitioner had raised allegations

against the Respondent No.3 also, who had summoned him to his office and

then sent him to the Joint Interrogation Centre (JIC) Kupwara, where he

was tortured in custody, therefore, no justice can be expected from the end

of the Respondent No.3, who himself is an accused in the matter, having

regard to his bias and, therefore, the Writ Court had failed in its duty to

order lodging of FIR for registration of case with further investigation on

the allegations raised in the Complaint by the wife of the Appellant/ Writ

Petitioner with regard to his custodial torture. It was finally prayed that the

instant appeal be allowed and the impugned Judgment passed by the learned

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Single Judge be modified with a direction to the concerned authority not

only to register a case in the matter, but also transfer the investigation of the

said case to an independent investigating agency, preferably the Central

Bureau of Investigation (CBI).

17. Mr Mohsin-ul-Showkat Qadri, the learned Senior Additional

Advocate General, appearing for the Respondents, per contra, argued that

the Writ Petition filed by the Appellant/ Writ Petitioner was not

maintainable before the Writ Court, inasmuch as, the Appellant/ Writ

Petitioner had not exhausted the provisions of the Code of Criminal

Procedure (Cr. P. C.) with regard to lodging of FIR. While explaining

further, the learned Senior Additional Advocate General contended that, as

per the interpretation rendered with reference to the basic provisions of the

Code of Criminal Procedure (Cr. P. C.), qua registration of a case, the

constitutional Courts have interpreted that a Complaint is to be initially

made to the Officer Incharge of the Concerned Police Station and, on his

failure to register a case, the Complainant can file an application before the

Superintendent of Police of the District having control over the Police

Station concerned and, thereafter, even on his inaction, the Complainant can

approach the Court of a Magistrate for seeking a direction to register the

case in terms of Section 156 (3) of the Code of Criminal Procedure (Cr. P.

C.), which course of action the present Appellant/ Writ Petitioner has not

resorted to, before invoking the writ jurisdiction of this Court.

18. Mr Qadri, learned Senior Additional Advocate General, has

also raised a preliminary objection with regard to the maintainability of the

present Letters Patent Appeal on the ground that the impugned Judgment

has been passed by the learned Single Judge in a Petition which was

criminal in nature and, therefore, against such a Judgment, an intra Court

appeal is not permissible in view of the Letters Patent jurisdiction of this

Court.

19. In rebuttal, Mr Bashir, the learned Senior Counsel, appearing

for the Appellant/ Writ Petitioner, however, argued that a Writ Petition

under Article 226 of the Constitution seeking directions for registration of a

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case cannot be said to be a Petition criminal in nature, as through the

medium of that Petition, no interference is sought, in a case registered under

the Code of Criminal Procedure (Cr. P. C.) or in any case pending before a

criminal Court. He vehemently argued that this Court has jurisdiction to

hear an intra Court appeal against the Order/ Judgment passed by a Single

Judge of this Court in a Petition under Article 226 of the Constitution of

India.

20. We have heard the learned Counsel appearing for the parties,

perused the pleadings on record and have considered the matter.

21. The first and foremost issue that falls for our consideration in

this appeal is with regard to the maintainability of the appeal.

22. The Appellant/ Writ Petitioner, while filing the instant appeal,

has invoked Rule 12 of the Letters Patent Rules of this Court for seeking

quashment of the impugned Judgment passed by the learned Single Judge

of this Court. This aspect of the matter remains no longer res integra and it

is, by far, a crystalized position of law that in terms of Rule 12 of the

Letters Patent of this Court, an intra Court appeal against an Order/

Judgment passed by a Single Judge of this Court, in exercise of inherent

powers under Section 482 of the Code of Criminal Procedure (Cr. P. C.), is

not maintainable.

23. A Co-Ordinate Bench of this Court, vide Judgment dated 16

th

of August, 2021, passed in LPA No.80 of 2020 titled ‘Shamshada Akhter

v. Aijaz Parvaiz Shah’ and LPA No. 84/2021 titled ‘Parvez Ahmad

Fafoo v. Imtiyaz Ahmad Tak’, has already set the controversy at rest with

regard to applicability of Rule 12 of the Letters Patent against an Order/

Judgment passed by a Single Judge of this Court, in exercise of powers

under Section 482 of the Code of Criminal Procedure (Cr. P. C.), thereby

holding that no appeal is provided for against an Order/ Judgment passed by

a Single Judge of this Court under Section 482 of the Code of Criminal

Procedure (Cr. P. C.). In this context, it shall be advantageous to go through

the relevant excerpts of the said Judgment, which read as under:

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“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 Judge

of this Court in exercise of the powers under Section 482 Cr. P. C.”.

24. This Court, in Shamshada Akhter’s case (supra), has held

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

powers of this Court saved under Section 561-A of the Code of Criminal

Procedure (Cr. P. C.), now repealed, corresponding to Section 482 of the

Code of Criminal Procedure (Cr. P. C.), now applicable in the Union

Territory of J&K, and, consequently, no appeal is provided for against an

Order/ Judgment passed by a Single Judge of this Court, in exercise of

criminal jurisdiction under Section 482 of the Code of Criminal Procedure

(Cr. P. C.).

25. Another Co-Ordinate Bench of this Court, in LPA No.

265/2022 titled ‘Abdul Qayoom Khan & Anr. v. State of J&K and

Ors.’, vide Judgment dated 2

nd

of August, 2023, ruled that even a Petition

under Article 226 of the Constitution of India, which has a colour of a

Petition under Section 482 of the Code of Criminal Procedure (Cr. P. C.),

against an Order/ Judgment passed by a Single Bench of this Court, in

exercise of criminal jurisdiction, is not maintainable.

26. In Abdul Qayoom Khan’s case (supra), in a quest to

determine as to whether once a Petition filed under Section 482 of the Code

of Criminal Procedure (Cr. P. C.) or under Article 226 of the Constitution

of India with trappings of a Petition under Section 482 of the Code of

Criminal Procedure (Cr. P. C.) has been decided by the High Court, an

appeal against the said Order/ Judgment can be entertained by a Division

Bench of this Court under Letters Patent, examined Section 362 of the

Criminal Procedure Code (Cr. P. C.) to hold that a Division Bench, while

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exercising Appellate jurisdiction under the Letters Patent, does not act as an

Appellate Court per se. The Bench held so on the basis of the observations

made by the Supreme Court in case titled “Baddula Lakshmaih v. Sri

Anjaneya Swami Temple”, [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 the learned Single Judge

of the High Court. The Apex Court made the following observations,

which, being relevant, are extracted 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…..”.

27. The Co-Ordinate Bench of this Court, while relying upon

Baddula Lakshmaih’s case (supra), while deciding the case of Abdul

Qayoom Khan (supra), at Paragraph No.17, held as under:

“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, 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

propositions of the Ld. Counsels for the appellants are accepted, it

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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.”

28. From the above discussion, what emerges is that this Court

has, thus, concluded that even in absence of a bar on an Appellate

jurisdiction under Rule 12 of the Letters Patent of this Court against an

Order/ Judgment passed by a Single Judge of this Court, in exercise of

criminal jurisdiction, an appeal would still be not maintainable in view of

the express bar contained in Section 362 of the Code of Criminal Procedure

(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 the Single

Judge is downright perverse.

29. Adverting back to the facts of the present case in the backdrop

of the aforesaid legal position obtaining on the subject, the Appellant herein

had filed both the Petitions with regard to the same subject matter, i.e., his

alleged custodial torture. In the Petition filed under Article 226 of the

Constitution, the Appellant/ Writ Petitioner has sought direction for

registration of the case based on the Complaint lodged by his wife with

regard to his custodial torture/ murderous assault on him by some

policemen of Joint Interrogation Centre (JIC), Kupwara, whereas, in the

other Petition filed under Section 482 of the Code of Criminal Procedure

(Cr. P. C.), he had sought quashment of FIR No. 32/2023 registered against

him for his alleged attempt to commit suicide by causing self-inflicting

injuries. Both the Petitions had been disposed of by the Writ Court vide the

impugned Judgment. Faced with the said circumstances, the Appellant, at

his own discretion, filed two appeals; one before this Court and another

before the Apex Court, though both the matters were inter-related. Since,

the Appellant/ Writ Petitioner has already approached the Apex Court by

filing a Special Leave Petition (SLP), registered as Petition(s) for Special

Leave to Appeal (Crl.) Nos. 13751-13852/2023, wherein, vide Order dated

12

th

of January, 2024, the Apex Court has been pleased to order, as an

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interim measure, to stay all further proceedings in connection with FIR No.

32/2023 dated 26

th

of February, 2023 registered with Police Station,

Kupwara.

30. The contention of the learned counsel for the Respondents that

a Letters Patent Appeal is not maintainable against the impugned Order/

Judgment passed by the learned Single Judge in a Petition under Article 226

of the Constitution of India, which has the trappings of a criminal case,

appears to be sound, whileas, the contention of the learned Senior Counsel

for the Appellant/ Writ Petitioner, in this behalf, seems to be fallacious in

view of the Judgment passed by this Court in Abdul Qayoom Khan’s case

(supra) that such an appeal is not maintainable when a Petition has

trappings of a criminal nature. The contention of the learned Counsel for the

Appellant/ Writ Petitioner that the Writ Petition, arising out of which

impugned Order has been assailed through the medium of the instant LPA,

is not criminal in nature is baseless and unfounded, inasmuch as, the

Petition had been moved by him, for setting criminal law into motion, on

allegations of commission of criminal offences of custodial torture,

registration of a criminal case and to punish the accused, were all within the

domain of criminal law.

31. Having regard to the aforesaid observations and discussion

made hereinabove, coupled with the settled legal position on the subject by

this Court, we are not inclined to take a different opinion from the one that

has already been taken by the Co-Ordinate Bench of this Court. It was open

for the Appellant/ Writ Petitioner to file a Special Leave Petition (SLP)

before the Apex Court or, at the most, in case the Appellant/ Writ Petitioner

was of the opinion that the direction passed by the Writ Court with regard

to, firstly, holding an enquiry in the matter and to then register a case was

required to be modified to the extent of registering a case for investigation

without resorting to inquiry first, such a relief could have been sought in a

Review Petition.

32. Viewed, thus, we are of considered opinion that the instant

appeal has been filed against the Judgment passed by the learned Single

Page 15 of 15

LPA No. 204/2023

CM No. 6177/2023

Judge of this Court in a Petition moved by the Appellant/ Writ Petitioner

under Article 226 of the Constitution of India with regard to seeking

direction for registration of a case for investigation into his custodial

torture, which has all the trappings of a criminal nature, is not maintainable.

That being so, such an appeal against the impugned Judgment, in view of

the law laid down by this Court, being not maintainable, is liable to be

rejected. Accordingly, the present appeal is dismissed as not maintainable,

along with the connected CM(s). Interim direction(s), if any subsisting as

on date, shall stand vacated.

(M. A. CHOWDHARY) (TASHI RABSTAN)

JUDGE CHIEF JUSTICE (ACTING)

SRINAGAR

September 19

th

, 2024

“TAHIR”

i. Whether the Judgment is speaking? Yes .

ii. Whether the Judgment is reportable? Yes.

Tahir Manzoor Bhat

I attest to the accuracy and

authenticity of this

document