Patna High Court
Bhushan Prasad @ Shashi KumarversusThe State of Bihar
- Decided
- Disposal
- DISPOSED
Holding
The Court held that the Letters Patent Appeal is maintainable because the order was passed under Article 226 writ jurisdiction, and therefore the appeal stands, but the order itself is not set aside.
Summary
Bhushan Prasad filed a writ petition seeking mandamus for the arrest of a private respondent and protection of his life and family. The Single Judge directed the SHO to provide protection to the Circle Officer and ordered a measurement process, without giving notice to the appellant, which the appellant claimed violated natural justice. The appellant also challenged the maintainability of the Letters Patent Appeal (LPA), arguing that the order was passed in criminal jurisdiction and thus not appealable under the Patna High Court Rules. The Court examined Supreme Court precedents (Ashok K. Jha and Ram Kishan Fauji) and held that the true nature of the order was under Article 226 writ jurisdiction, making the LPA maintainable. However, finding no prejudice or perversity in the Single Judge’s order, the Court declined to interfere and disposed of the appeal, reiterating the directions for measurement and protection.
Issues considered
- The maintainability of a Letters Patent Appeal when the order challenged is issued by a Single Judge exercising criminal jurisdiction.
- Whether the order passed without notice violates the principles of natural justice.
- The validity of the Single Judge’s directions for protection and measurement in the context of the writ petition.
Legislation cited
- Arms Act — s. 25(1-B), 26, 27, 35
- Bihar Narcotic Substances Act, 2023 — s. 109, 115(2), 118, 126(2), 190, 191, 3(5), 351(3), 352
Subjects
- Letters Patent Appeal
- maintainability
- natural justice
- writ jurisdiction
- Article 226
- Article 227
- criminal jurisdiction
- mandamus
- protection order
- Bihar
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1143 of 2025
In
Criminal Writ Jurisdiction Case No.2295 of 2024
======================================================
Bhushan Prasad @ Shashi Kumar S/o Kishore Prasad @ Kishor Yadav,
Resident of village- Balwapar, P.S.- Aungari (Peer Bigha O.P), District-
Nalanda.
... ... Appellant/s
Versus
1. The State of Bihar.
2. The District Magistrate, Nalanda, Bihar.
3. The Superintendent of Police, Nalanda, Bihar.
4. The Sub-Divisional Officer, Hilsa, Nalanda, Bihar.
5. The Circle Officer, Ekangarsarai, Nalanda, Bihar.
6. The Station House Officer, Aungari, (Peer Bigha O.P), Bihar.
7. The Investigating Officer in Aungari, Pirbigha O.P., PS Case no 65 of 2024,
Bihar.
8. Karu Prasad, S/o Late Sita Das, R/o Mohammadpur, Tola Balwapur, Post
Officer Rasisa, PS Aungari (Peer Bigha O.P), Dist Nalanda.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Sanjeev Kumar, Advocate
Mr. Shyamal Prakash, Advocate
For the Respondent/s : Mr. Abbas Haider, SC- 6
Mr. Wasi Mohammad, AC to SC- 6
For the Resp. No.8 Mr. Sanjeet Kumar, Advocate
======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE HARISH KUMAR
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 18-02-2026
This Letters Patent Appeal has been filed by the
appellant-writ petitioner Bhushan Prasad @ Shashi Kumar
challenging the order dated 10.07.2025 passed by the learned
Single Judge in Cr.W.J.C. No.2295 of 2024.
2. The writ petitioner approached this Court by filing
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the aforesaid writ petition seeking following reliefs:-
“i) To issue a writ in nature of Mandamus
for a direction to the concerned respondents
especially respondent Nos.3, and 6 to ensure the
arresting the private respondent who is the accused
of Aungari (Pirbigha O.P.) Police Station Case No.
65 of 2024 dated 24.08.2024 under Sections
190/191/126(2)/115(2)/118/109/ 351(3)/352/3(5) of
the BNS, 2023 & 25(1-B)/26/27/35 Arms Act.
ii). To issue a writ in nature of Mandamus
for a direction to the concerned respondents to
provide security or to take any appropriate
action to secure and protect the life and liberty
of the petitioner and his family members.”
3. When the matter was taken up on 10.7.2025, the
learned Single Judge passed the following orders:-
“3. The SHO of Aungari (Pirbigha OP),
Police Station is directed to provide protection to
the Circle Officer, Ekangersarai, Nalanda as on
the application of the petitioner, the measurement
is being done by the Circle Officer. Ekangersarai.
Nalanda.
“4. The Circle Officer, Ekangersarai,
Nalanda will fix a date for measurement and he
will inform the petitioner as well as the SHO of
Aungari Police Station, Nalanda, thereafter, the
measurement shall be done. In case any person
interferes in the process of measurement,
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appropriate action shall be taken against him by
the police.”
4. The learned counsel for the appellant contends that
the impugned order is vitiated on account of violation of the
principles of natural justice. There is no dispute that the
appellant was respondent no.8 in the said writ petition and the
order was passed on the very first date when the matter was
listed “For Admission” without any notice to the appellant.
5. It is further submitted that the civil writ petition,
bearing C.W.J.C. No. 3152 of 2024, is presently sub judice
before this Court, in which the appellant was also a party. On
these grounds, it is urged that the impugned order is liable to be
set aside.
The learned counsel for the respondent no.8, however,
submitted that C.W.J.C. No.3152 of 2024, which has been filed
by him, has already been withdrawn on 15.07.2025,
immediately after passing of the impugned order dated
10.07.2025 in Cr. WJC No.2295 of 2024.
6. A preliminary objection has been raised by the
learned counsel appearing for the State as well as by the learned
counsel for the respondent no.8, Karu Prasad, the petitioner in
the writ-petition, on the ground that since the matter arises out
of a criminal matter, in view of Appendix- E Clause 10 of the
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Patna High Court Rules, the instant LPA is not maintainable.
“10. Appeal to the High Court from
Judges of the Court.- And we do further ordain
that an appeal shall lie to the said High Court of
Judicature at Patna from the Judgement (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 under the provisions of Section
107 of the Government of India Act, or in the
exercise of Criminal Jurisdiction of one Judge of
the said High Court or one Judge of any Division
Court, pursuant to Section 108 of the
Government of India Act, 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. Pursuant to
Section 108 of the Government of India Act,
made on or after the first day of February, One
thousand nine hundred and twenty-nine, 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 a fit one for appeal; but that the right
of appeal from other judgments of Judges of the
said High court or of such Division Court shall
be to Us, Our Heirs or Successors in Our or
Their Privy Council, as hereinafter provided.”
(Underline supplied by us)
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7. On a plain reading of the aforenoted clause, it is
clear that if an order has been passed by a learned Single Judge
of the High Court in the exercise of criminal jurisdiction, a
Letters Patent Appeal would not be maintainable.
8. The learned counsel for the appellant, on the other
hand, placing reliance upon the decisions of the Hon’ble
Supreme Court rendered in the case of Ashok K. Jha & Ors. Vs.
Garden Silk Mills Limited & Ors. [(2009) 10 SCC 584] and
Ram Kishan Fauji Vs. State of Haryana & Ors. [AIR 2017 SC
1535], contended that true nature and character of the order
passed by the learned Single Judge is to be ascertained and
under what provision, which has been mentioned while
exercising power is not at all applicable. It is further argued that
even though the learned Single Judge has mentioned in the order
that he has exercised the power under Article 227 of the
Constitution of India, that cannot take away the right of appeal
against such judgment, if the Appellate Court found that the
power, in fact, has been exercised under Article 226 of the
Constitution of India. Therefore, the vital factor for
determination of the maintainability of the intra-court appeal is
the real nature of jurisdiction invoked by the party and the true
nature of the order passed by the learned Singe Judge.
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9. In the case of Ashok K. Jha (supra), the Hon’ble
Supreme Court has been pleased to hold as follows:-
“35. In Visan Kumar Shiv Charan Lal
[(2008) 15 SCC 233 : AIR 2009 SC 1999] this
Court further held that the determining factor is
the real nature of principal order passed by the
Single Judge which is appealed against and
neither mentioning in the cause-title of the
application of both the articles nor granting of
ancillary order thereupon by the Single Judge
would be relevant and in each case the Division
Bench must consider the substance of the
judgment under appeal to ascertain whether the
Single Judge has mainly or principally exercised
his jurisdiction under Article 226 or Article 227
of the Constitution.
In Ramesh Chandra Sankla [(2008) 14
SCC 58 : (2009) 1 SCC (L&S) 706 : AIR 2009 SC
713] this Court held: (SCC p. 75, para 47)
“47. In our judgment, the learned
counsel for the appellant is right in
submitting that nomenclature of the
proceeding or reference to a particular
article of the Constitution is not final or
conclusive. He is also right in submitting
that an observation by a Single Judge as to
how he had dealt with the matter is also
not decisive. If it were so, a petition strictly
falling under Article 226 simpliciter can be
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disposed of by a Single Judge observing
that he is exercising power of
superintendence under Article 227 of the
Constitution. Can such statement by a
Single Judge take away from the party
aggrieved a right of appeal against the
judgment if otherwise the petition is under
Article 226 of the Constitution and subject
to an intra-court/letters patent appeal? The
reply unquestionably is in the negative….”
36. If the judgment under appeal falls
squarely within four corners of Article 227, it
goes without saying that intra-court appeal from
such judgment would not be maintainable. On the
other hand, if the petitioner has invoked the
jurisdiction of the High Court for issuance of
certain writ under Article 226, although Article
227 is also mentioned, and principally the
judgment appealed against falls under Article
226, the appeal would be maintainable. What is
important to be ascertained is the true nature of
order passed by the Single Judge and not what
provision he mentions while exercising such
powers.
37. We agree with the view of this Court in
Ramesh Chandra Sankla [(2008) 14 SCC 58 :
(2009) 1 SCC (L&S) 706 : AIR 2009 SC 713] that
a statement by a learned Single Judge that he has
exercised power under Article 227, cannot take
away right of appeal against such judgment if
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power is otherwise found to have been exercised
under Article 226. The vital factor for
determination of maintainability of the intra-court
appeal is the nature of jurisdiction invoked by the
party and the true nature of principal order
passed by the Single Judge.”
10. In the case of Ram Kishan Fauji (supra), the
Hon’ble Supreme Court in para-10 has observed as follows:-
“10. Questioning the sustainability of the
order passed by the Division Bench, Dr Rajeev
Dhavan, learned Senior Counsel, has raised a
singular contention that the LPA preferred before
the Division Bench was not maintainable
inasmuch as the learned Single Judge had
exercised criminal jurisdiction. He has placed
reliance on certain authorities to which we shall
refer to at the relevant place in the course of our
deliberations.”
After discussing several judgments on the issue(s),
the Hon’ble Supreme Court further held as follows:-
“46. At this stage, it is extremely necessary to
cull out the conclusions which are deducible
from the aforesaid pronouncements. They are:
(a) An appeal shall lie from the judgment of a
Single Judge to a Division Bench of the High
Court if it is so permitted within the ambit and
sweep of the Letters Patent.
(b) The power conferred on the High Court by
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the Letters Patent can be abolished or curtailed
by the competent legislature by bringing
appropriate legislation.
(c) A writ petition which assails the order of a
civil court in the High Court has to be
understood, in all circumstances, to be a
challenge under Article 227 of the Constitution
and determination by the High Court under the
said article and, hence, no intra-court appeal is
entertainable.
(d) The tenability of intra-court appeal will
depend upon the Bench adjudicating the lis as to
how it understands and appreciates the order
passed by the learned Single Judge. There
cannot be a straitjacket formula for the same.
49. The aforesaid argument suffers from a
fundamental fallacy. It is because the submission
is founded on the plinth of whether the writ
jurisdiction has been exercised under Article
226 or 227 of the Constitution. It does not take
note of the nature of jurisdiction and the relief
sought. If the proceeding, nature and relief
sought pertain to anything connected with
criminal jurisdiction, intra-court appeal would
not lie as the same is not provided in Clause 10
of the Letters Patent. Needless to emphasise, if
an appeal in certain jurisdictions is not provided
for, it cannot be conceived of. Therefore, the
reliance placed upon the larger Bench authority
in Hari Vishnu Kamath [Hari Vishnu Kamath v.
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Ahmad Ishaque, (1954) 2 SCC 881 : AIR 1955
SC 233] does not render any assistance to the
argument advanced by the learned counsel for
the respondent State.
65. In the case at hand, the writ petition was
filed under Article 226 of the Constitution for
quashing of the recommendation of the
Lokayukta. The said recommendation would
have led to launching of criminal prosecution,
and, as the factual matrix reveals, FIR was
registered and criminal investigation was
initiated. The learned Single Judge analysed the
report and the ultimate recommendation of the
statutory authority and thought it seemly to
quash the same and after quashing the same, as
he found that FIR had been registered, he
annulled it treating the same as a natural
consequence. Thus, the effort of the writ
petitioner was to avoid a criminal investigation
and the final order of the writ court is
quashment of the registration of FIR and the
subsequent investigation. In such a situation, to
hold that the learned Single Judge, in exercise of
jurisdiction under Article 226 of the
Constitution, has passed an order in a civil
proceeding as the order that was challenged was
that of the quasi-judicial authority, that is, the
Lokayukta, would be conceptually fallacious. It
is because what matters is the nature of the
proceeding, and that is the litmus test.”
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11. In view of the nature of the order, we are of the
opinion that although some directions have been issued for
measurement to be carried out by the Circle Officer,
Ekangersarai, Nalanda, and the Station House Officer (SHO) to
provide necessary protection to the Circle Officer in the event of
any interference during the process of measurement, with
further directions to the police to take appropriate action against
the person, who causing such interference, the scope and effect
of the said order require careful consideration.
12. In the factual scenario and particularly keeping in
view the ratio laid down in the aforesaid two decisions
regarding maintainability i.e. Ashok K. Jha (supra) and Ram
Kishan Fauji (supra), we are of the humble view that in view of
the nature of jurisdiction invoked by the party, the Letters Patent
Appeal is maintainable. However, since the appellant has not
been prejudiced in any manner by the observations made by the
learned Single Judge and there is no perversity in the said order,
we are not inclined to interfere with the same.
13. Needless to say, the Circle Officer, Ekangersarai,
Nalanda, while carrying out the measurement, shall allow both
the appellant and respondent no. 8 to remain present. None of
them shall cause any obstruction or hindrance in discharge of
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the Circle Officer’s duties, as directed by the learned Single
Judge.
14. It is expected that the concerned Circle Officer
shall complete the entire exercise within a period of eight weeks
from the date of receipt of the order.
15. Let a copy of this order be handed over to the
learned counsel for the State, which shall be forwarded to the
concerned Circle Officer.
16. With the aforesaid observation(s), the instant LPA
stands disposed off.
(Sangam Kumar Sahoo, CJ)
(Harish Kumar, J)
uday/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 25.02.2026
Transmission Date NA
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