Supreme Court of India
Vivek Rai & Anr vs High Court Of Jharkhand … on 4 February, 2015Bench: T.S. Thakur, Adarsh Kumar Goel









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
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. 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. 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

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.


FEBRUARY 4, 2015

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



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