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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

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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