HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

LPA 160/2021

Dr. Rafiq Masoodi

… Appellant

Through:

Mr. R.A Jan, senior adv with

Mr. Aswad Attar, adv.

v.

CBI and ors

…Respondent

Through:

Mr. T.M Shamsi, ASGI

Coram:

Hon’ble Mr. Justice Ali Mohammad Magrey, Judge.

Hon’ble Mr. Justice Puneet Gupta, Judge.

(JUDGMENT)

Magrey, J: (oral)

1.

This Letters Patent Appeal (LPA) has been filed by the appellant in

terms of Clause 12 of the J&K Letters Patent of 1943 against an order

passed by learned Single Bench of this Court in petition under Section 482

of the Code of Criminal Procedure, 1973 (now applicable in the Union

Territory of Jammu and Kashmir) filed under Section 561-A Cr.P.C 1933 JK

(now repealed). The two provisions are in pari materia to each other.

2.

When this matter was taken up for consideration, the learned counsel

Mr. T.M Shamsi, raised preliminary objection regarding maintainability of

the Letters Patent Appeal under Clause 12 of the J&K Letters Patent of

1943. The learned counsel submits that the LPA is not maintainable as is

already held by the Division Bench of this Court in LPA No. 80/2020 <titled

Shamshada Akther vs. Aijaz Parvaiz Shah= decided on 16.08.2021.

3.

Mr. R.A Jan, learned senior counsel submits that he is well aware of

the Judgment, so referred by learned counsel for respondents, but the

conclusion drawn on the strength of the Provisions of Law and the judgment

of the Hon9ble Supreme Court, needs a re-look as it appears that the

Division Bench has not been properly assisted on the relevant provisions of

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law and the judgment on the subject were not brought on the notice of the

Division Bench of this Court, therefore, submits that the Judgment is not

applicable and makes an endavour that the Court may take a different view

in tune with the scheme of law.

4. Brief Facts:

Appellant, Dr. Rafiq Masoodi, has challenged an FIR No. RC-03(A)

of 2013 CBI/ACB, Srinagar dated 07.11.2016 registered with CBI/ACB

Srinagar, in CRM (M) 24/2017 on the grounds stated in the 482 Petition and

as discussed by the learned Single Judge seeking quashment of the FIR(s).

5.

The petition was dismissed by order impugned dated 28.09.2021

passed by learned Single Judge of this Court as being without merit. The

instant LPA has been filed in terms of Clause 12 of the J&K Letters Patent,

challenged the impugned order dated 28.09.2021 passed by the learned

Single Judge in the aforesaid petition filed under Section 482 Code of

Criminal Procedure.

6.

We heard learned counsel for the parties and considered the matter.

7.

The objection to the maintainability of this LPA is taken on the same

grounds which were taken by respondent9s counsel in case LPA No. 80/2020

titled <Shamshada Akther vs. Aijaz Parvaiz Shah=, decided on 16.08.2021.

8.

On the other hand, learned counsel for the appellant submitted that the

power 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

that inherent powers are not the same as powers of superintendence. In this

connection, the Court was taken through Section 482 Cr.P.C.

9.

Mr. R.A Jan, learned senior counsel further submitted that the

Division Bench of this court while declaring that the LPA is not

maintainable against the order passed by Single Judge under Section 482

Cr.P.C has referred to judgment of the Supreme Court passed in Ram

Kishan Fauji v. State of Haryana, AIR 2017 SC 1535 which is not

applicable to the fact circumstances of the case.

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10.

Mr. R.A Jan, learned senior counsel has further while strengthening

his argument referred to and relied upon the judgment of the Supreme Court,

reported as (2017) 9 SCC 641 titled Parbathai Aahir v. State of Gujarat

and anr; AIR 1965 SC 1442 titled South Asia Industries (P) Ltd v. S.B

Sarup Singh and ors; (