Mangu & ANR Vs. State of Rajasthan
 INSC 271 (6 November 1975)
BEG, M. HAMEEDULLAH
CITATION: 1976 AIR 176 1976 SCR (2) 324 1976
SCC (1) 410
Supreme Court Rules, 1950-0.21, r.2-0.47,
Rule 2 of Order 21 of the Supreme Court Rules
states that where an appeal lies to the Supreme Court on a certificate issued
by the High Court, no application to the Court for special leave to appeal
shall be entertained unless the High Court concerned has first been moved and
it has refused to grant the certificate. Rule 1 of Order 47, however, confers
powers on the Court to dispense with any of the requirements of the Rules and
to pass appropriate orders in exercise of its inherent powers.
The appellants moved the High Court for a
certificate under Art. 134(1)(c) of the Constitution but later withdrew it. The
High Court rejected the application as withdrawn.
The appellants then moved this Court stating
that the High Court rejected their application on "merits" but not
"as being out of time" and obtained ex parte special leave.
Dismissing the appeal and revoking the leave
HELD : (1) The requirement of r. 2 of O.21
has not been complied with. Withdrawal of the application by the appellants
showed that they abandoned the idea of moving the Supreme Court. [325D] (2)
Rule 2 of Order 21 is by itself mandatory. The fact that its compliance may be
excused by the Court in appropriate cases does not affect the mandatory
character of the Rule. This is a case which does not merit invoking the
inherent powers of the Court for dispensing with the requirements of the Rules,
particularly so when the appellants had made a definitely wrong statement in
the special leave application with regard to their earlier application for
leave in the High Court. [325G; 326A]
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 135 of 1971.
Appeal by Special Leave from the Judgment and
Order dated the 25th March 1971 of the Rajasthan High Court at Jodhpur in S. B.
Criminal Appeal No. 159 of 1970.
B. R. L. Iyengar for E. C. Agarwala for the
S. M. Jain for Respondent.
The Judgment of the Court was delivered by
GOSWAMI, J. The two appellants along with four others were convicted by the
Sessions Judge, Bhilwara, under sections 147, 452/149 and 325/149 I.P.C. and
sentenced to imprisonment and fine. The High Court on appeal acquitted four of
them and maintained the conviction and sentence of the two appellants who were
involved withseveral others. The appellants moved an application for a
certificate praying for leave to appeal to this Court under article 134(1)(c)
of 325 the Constitution. Later on the leave application was withdrawn and on
May 12, 1971, the High Court rejected the application as withdrawn. The appellants
later obtained ex- parte special leave on May 25, 1971. It was mentioned in
para 5 of the special leave petition that their application for leave in the
High Court was rejected "on merits, but not as being out of time".
A preliminary objection has been raised on
behalf of the respondent that the special leave granted in this case should be
revoked as the appellants failed to comply with the requirements of rule 2 of
order 21 of the Supreme Court Rules inasmuch as there was no order of the High
Court refusing to grant the certificate.
Under order 21, rule 2 "where an appeal
lies to the Court on a certificate issued by the High Court no application to
the Court for special leave to appeal shall be entertained unless the High
Court concerned has first been moved and it has refused to grant the
certificate." Since the application for leave was withdrawn by the
appellants it could not be said that the High Court at all considered the
matter and then refused to grant the certificate. Withdrawal of the application
by the appellants would go to show that they had abandoned the idea of to
moving the supreme Court against the judgment. The requirement of rule 2 has
not, therefore, been complied with.
It is, however, submitted by Mr. Iyengar that
order 47 of the Supreme Court Rules confers power on this Court to dispense
with any of the requirements of these Rules and to pass appropriate orders in
exercise of inherent powers. Rule 1 of order 47 provides that- "the Court
may, for sufficient cause shown, excuse the parties from compliance with any of
the requirements of these rules, and may give such directions in matters of
practice and procedure as it may consider just and expedient".
Rule 6 says that- "nothing in these
rules shall be deemed to limit or otherwise affect the inherent powers of the
Court to make such orders as may be necessary for the ends of justice or to
prevent abuse of the process of the Court." Rule 2 of order 47, however,
requires an application to be made in the manner provided therein.
Rule 2 of order 21 is, by itself, mandatory.
The fact that its compliance may be excused by the Court in appropriate cases
does not affect the mandatory character of the rule.
There is no application by the appellants
showing sufficient cause for exempting them from compliance with the
requirement of the rule. We are informed that an opportunity had been earlier
given by the Court for making an appropriate application even at this stage.
Even this opportunity was not availed of by the appellants.
326 We are, therefore, of the opinion that
this is a case which does not merit invoking of our inherent powers for
dispensing with the requirements of the Rules particularly so when the
appellants had made a definitely wrong statement in the special leave
application with regard to their earlier application for leave in the High
Mr. Iyengar then submits that a perusal of
the judgment of the High Court would clearly show that this is a fit case where
we should intervene in the interest of justice by suo motu excusing the
technical lapse of any procedure.
Reluctantly enough we allowed counsel to take
us through the judgment of the High Court and we find that it is an appeal only
for re appreciating the evidence and does not disclose any manifest grave error
of law or miscarriage of justice.
This is, therefore, a fit case in which the
preliminary objection should prevail. We order that the special leave to appeal
which was granted to the appellants be revoked. The appellants shall now
surrender to their bail bonds and serve the remaining period of their sentence.
P.B.R. Appeal dismissed.