Supreme Court of India (Division Bench (DB)- Two Judge)

Writ Petition (Crl.), WRIT PETITION (CRIMINAL) NO.61 OF 2012 Judgment Date: Feb 04, 2015

This  writ  petition  has  been  filed  under  Article  32   of   the
Constitution of India seeking to declare Rule  159  of  the  High  Court  of
Jharkhand  Rules,  2001  as  violative  of  Articles  14  and  21   of   the
Constitution and provisions of Sections 397 and 401 of the Code of  Criminal
Procedure, 1973 ("Cr.P.C.").-
It  is  well  known  practice  that  generally  a  revision  against
conviction and sentence is filed  after  an  appeal  is  dismissed  and  the
convicted person is taken into custody in Court itself.  The object  of  the
Rule is to ensure that a person who has been convicted by two  courts  obeys
the law and does not abscond .The provision  cannot  thus  be  held  to  be
arbitrary in any manner.  The provision is to regulate the procedure of  the
Court and does not, in any manner, conflict with the substantive  provisions
of the Cr.P.C. relied upon by the petitioners.  A similar  provision  exists
in the Supreme Court Rules, 1966.

we do not find any ground  to  hold  that  the impugned  Rule  suffers  from  any  infirmity.The   writ   petition is accordingly, dismissed.

                                                     REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL ORIGINAL JURISDICTION

                   WRIT PETITION (CRIMINAL) NO.61 OF 2012

VIVEK RAI & ANR.
                                                   ...PETITIONERS

                                    VERSUS

HIGH COURT OF JHARKHAND
THROUGH REGISTRAR GENERAL & ORS.                  ...RESPONDENTS


                               J U D G M E N T


ADARSH KUMAR GOEL, J.


1.     This  writ  petition  has  been  filed  under  Article  32   of   the
Constitution of India seeking to declare Rule  159  of  the  High  Court  of
Jharkhand  Rules,  2001  as  violative  of  Articles  14  and  21   of   the
Constitution and provisions of Sections 397 and 401 of the Code of  Criminal
Procedure, 1973 ("Cr.P.C.").  The rule in question is as follows:
"In the case of revision under Sections 397 and 401 of the Code of  Criminal
Procedure, 1973 arising out of conviction and sentence of imprisonment,  the
petitioner shall state whether  the  petition  shall  be  accompanied  by  a
certified copy of the  relevant  order.   If  he  has  not  surrendered  the
petition shall be accompanied by an application seeking leave  to  surrender
within a specified period.  On sufficient cause  if  shown,  the  Bench  may
grant such time and on such conditions as it thinks  and  proper.   No  such
revision  shall  be  posted  for  admission  unless   the   petitioner   has
surrendered to custody in the concerned Court."
2.    Case  of  the  petitioners  is  that  they  have  been  convicted  and
sentenced under Section  498-A   of  the  Indian  Penal  Code  ("IPC")   and
Sections 3 and 4 of the Dowry Prohibition Act.  Against the said  conviction
and sentence, their appeal has been  dismissed  and  revision  petition  was
filed before the High Court but the same was not registered  on  account  of
impugned Rule 159 as they failed to surrender to custody.  It  is  submitted
that this Rule is in conflict with  the  provisions  of  Criminal  Procedure
Code dealing with the statutory revisional jurisdiction of  the  High  Court
and even in a  fit  case,  the  High  Court  cannot  consider  the  revision
petition and grant bail unless a  convicted  person  covered  by  the  Rules
surrenders to custody.  The Rule being  subordinate  legislation  could  not
militate against the substantive statutory provision.   Since  the  Division
Bench of the High Court has upheld the validity of the Rule and the  special
leave petition was dismissed by this Court against the  said  judgment,  the
petitioners have no  other  remedy  except  to  approach  this  Court  under
Article 32 as  their  fundamental  rights  under  Articles  14  and  21  are
affected.
3.    A counter affidavit has been filed by the  Registrar  General  of  the
High Court of Jharkhand opposing the prayer for declaring  the  Rule  to  be
ultra vires.  Reliance has been placed  on  the  judgment  of  the  Division
Bench of the High Court in Mahadeo  Prasad  Shrivastav  vs.  High  Court  of
Jharkhand[1] laying down that the Rule could not be held  to  be  arbitrary,
discriminatory or illegal.  Special Leave Petition (Crl.)  No.4890  of  2004
filed against the said judgment was dismissed by this Court.   It  has  also
been stated that there is an identical provision in Order  XXI,  Rule  6  of
the Supreme Court Rules, 1966 and thus such a provision cannot  be  held  to
be  arbitrary  nor  such  a  provision,  in  any  manner,  be  held  to   be
inconsistent with Section 389 read with Sections 397 and  401  Cr.P.C.   The
High Court is competent to frame Rules to regulate its procedure.   Reliance
has also been placed on a Judgment of  this  Court  in  Mayuram  Subramanian
Srinivasan vs. C.B.I.[2]  laying down that a convicted  person  is  required
to surrender under Rule 6 of Order XXI of the  Supreme  Court  Rules,  1966,
unless the Court directs otherwise.
3.    We have given due consideration to the rival submissions.
4.    We do not find any merit in the  challenge  to  the  validity  of  the
Rule.      In K.M.  Nanavti vs. State of  Bombay[3]
this Court considered the scope and effect of identical provision  of  Order
XXI Rule 5 of the Supreme  Court  Rules,  then  applicable,  which  read  as
follows :
"When the petitioner has been sentenced  to  a  term  of  imprisonment,  the
petition shall state whether the  petitioner  has  surrendered.  Unless  the
court otherwise orders, the petition shall not be posted for  hearing  until
the petitioner has surrendered to his sentence".

5.    It was observed  that  the  Rule  only  crystalised  the  pre-existing
practice of this Court and the High Courts.   Further,  question  considered
was whether the Rule violated Article 161 which conferred power on  Governor
to suspend the sentence as in that case,  the  Governor  had  suspended  the
sentence but still the convict was required under  the  Rule  to  surrender.
This Court held that power of the Governor could not regulate  procedure  of
the Court and if the case was to be heard by this Court, unless  this  Court
granted exemption, the Rule prevailed.  We are not concerned with  the  said
question in the present case.  Relevant observations in  the  said  judgment
are :

"........This Rule was, in terms, introduced into the  Supreme  Court  Rules
last year and it only crystallized the preexisting practice of  this  court,
which is also the practice in the High Courts. That  practice  is  based  on
the very sound principle which was recognised long ago by the Full Bench  of
the High Court of Judicature, North Western Provinces, in 1870, in the  case
of The Queen v. Bisheshar Pershad [Vol.2 NWP High Court  Reports,  p.  441].
In that case no order of conviction had been  passed.  Only  a  warrant  had
been issued against the accused and  as  the  war  rant  had  been  returned
unserved a proclamation had been issued and attachment of  the  property  of
the accused had been ordered, with a view to compelling  him  to  surrender.
The validity of the warrant had been challenged before the High  Court.  The
High Court refused to  entertain  his  petition  until  he  had  surrendered
because  he  was  deemed  to  be  in  contempt  of  a  lawfully  constituted
authority. The accused person in pursuance of the order of  the  High  Court
surrendered and after he had surrendered, the matter was dealt with  by  the
High Court on its merits. But as  observed  above  the  Rules  framed  under
Article 145 are only in aid of the powers of this court  under  Article  142
and the main question that falls for consideration is, whether the order  of
suspension passed by the Governor under Article 161 could operate when  this
court had been moved for granting special leave to appeal from the  judgment
and order of the High Court. As soon as the petitioner  put  in  a  petition
for special leave to appeal the matter became  sub  judice  in  this  court.
This court under its Rules could insist upon the petitioner surrendering  to
his sentence as a condition precedent to his  being  heard  by  this  court,
though this court could dispense with and in a proper case could exempt  him
from the operation of that Rule. It is not disputed that this court has  the
power to stay the execution of the sentence and to grant  bail  pending  the
disposal of the application for special leave to appeal. Rule  28  of  Order
21 of the Rules does not cover that period, but even so  the  power  of  the
court under Article 142 of  the  Constitution  to  make  such  order  as  is
necessary for doing complete justice in this case was not  disputed  and  it
would be open to this court even while an application for special  leave  is
pending to grant bail under the powers it has under Article 142 to pass  any
order in any matter which is necessary for doing complete justice."

6.    Again in Mayuram Subramanian Srinivasan (supra), validity  and  effect
of identical Rules i.e. Rules 6 and 13-A  of  Order  XXI  of  Supreme  Court
Rules, 1966 was considered.  It was observed :
"7. Order 21 relates to special leave petitions in criminal proceedings  and
criminal appeals. So far as special leave petitions are  concerned,  Rule  6
application thereto is in almost identical language as that  of  Rule  13-A.
In both cases it is stipulated that unless the petitioner or  the  appellant
as the case may be has surrendered to the sentence, the petition/the  appeal
shall not be registered and cannot be posted for hearing  unless  the  Court
on written application for the purpose, orders  to  the  contrary.  In  both
cases it is stated that where the petition/appeal is accompanied by such  an
application that application alone shall be posted for  hearing  before  the
Court for  orders.  Therefore,  the  position  is  crystal  clear  that  the
criminal appeal  cannot  be  posted  unless  proof  of  surrender  has  been
furnished by the appellant who has  been  convicted.  It  appears  from  the
various orders which have been filed by learned counsel for  the  appellant,
the effect of Order 21 Rule 13-A has not been dealt with.  It  may  be  that
the provision was not brought to the notice of the Bench.  The  requirements
of Order 21 Rule 13-A are mandatory in character and  have  to  be  complied
with except when an order is passed for exemption from surrendering."

7.    In concurring judgment, it was observed :
"16. It has been submitted that the statutory provisions of  Section  389(3)
CrPC have an overriding effect over the Supreme Court Rules and  hence  once
bail has been granted to a convicted person by the trial court,  this  Court
cannot insist that he should surrender to the sentence in terms of Rule  13-
A before his appeal can be registered.

17. While such a submission is attractive, it does not  stand  scrutiny  for
the simple reason that sub-section (3) of  Section  389  CrPC  empowers  the
trial court to release a convicted person on bail for such  period  as  will
afford him sufficient time to present an appeal and  obtain  orders  of  the
appellate court under sub-section (1), namely, release on bail,  and  it  is
only for such period that the sentence of imprisonment shall  be  deemed  to
be suspended.

18. The basic fallacy of Ms Jaiswal's submission is that  it  overlooks  the
question that grant of bail in  the  appeal  presupposes  surrender  by  the
convicted person.

19. The provisions of Section 389 CrPC and that of the Supreme Court  Rules,
1966 are independent provisions and will have to be considered on their  own
standing."

8.    Only further submission put forward is  that  inherent  power  of  the
Court to direct  listing  of  the  case  by  exempting  the  requirement  of
surrender has been taken away.  It is  pointed  out  that  even  in  Supreme
Court Rules prohibition against listing without surrender is not  applicable
if the Court otherwise directs.  Such exception is not to be  found  in  the
impugned Rule.
9.    It has not been disputed even by the  learned  counsel  for  the  High
Court that the Rule does not affect the inherent power of the High Court  to
exempt the requirement of surrender in exceptional  situations.   It  cannot
thus, be argued that prohibition against posting of a revision petition  for
admission applies even to  a  situation  where  on  an  application  of  the
petitioner, on a case  being  made  out,  the  Court,  in  exercise  of  its
inherent power, considers it appropriate to grant exemption  from  surrender
having regard to  the  nature  and  circumstances  of  a  case.   Thus,  the
exception as found in corresponding Supreme Court Rules that  if  the  Court
grants exemption from surrender and directs listing  of  a  case,  the  Rule
cannot stand in the way of the Court's exercise of  such  jurisdiction,  has
to be assumed in the impugned Rule.
10.   In these circumstances, we do not find any ground  to  hold  that  the
impugned  Rule  suffers  from  any  infirmity.    The   writ   petition   is
accordingly, dismissed.

                    ......................................................J.
                                  (T.S. THAKUR)


                    ......................................................J.
                                    (ADARSH KUMAR GOEL)
NEW DELHI
FEBRUARY 4, 2015

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[1]    2004 Crl.L.J.4392
[2]    2006 (5) SCC 752
[3]    (1961) 1 SCR 497

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