SUPREME COURT OF INDIA
Mayuram Subramanian Srinivasan and Others
Vs
C.B.I
Criminal Appeals Nos. 685 of 2006, 687 of 2006 and 688 of 2006
(Arijit Pasayat and Altamas Kabir, JJ)
16.06.2006
ARIJIT PASAYAT, J.
1. When the matter was placed for admission, the office report pointed out that the appellant in each Appeal has not surrendered and therefore in terms of the Supreme Court Rules, 1966 (in short the 'Rules') the Criminal Appeal cannot be taken up. It is pointed out that in each case an application has been filed for staying operation of the impugned judgment and final order dated 12th April, 2006 passed by the Special Court at Bombay constituted under the Special Court (Trial of Offences Relating to Transaction in Securities) Act, 1992 (in short the 'Act') in Special Case No.4 of 1996 during the pendency of the appeal and to suspend the sentence of the appellant and the fine.
2. Learned counsel for the appellants submitted that the appeal is under Sec.
10 of the Act and the learned Judge of the Special Court has suspended the
substantive sentence passed against each of the accused for a period of 10
weeks from the date of judgment. For that purpose each of the accused executed
fresh RR Bond. Time was granted for execution of the bond. It is case of the
appellants that the Rules have no application to the present case, as there is
a special provision i.e. Section 9(4) of the Act authorizing the concerned
Court to regulate its procedure, adopt such procedure as it may deem fit
consistent with the principles of natural justice. In exercise of that power
the operation of the sentence has been suspended. It is also pointed out that
in several appeals under Section 10 of the Act, this Court has directed
suspension of the substantive sentence during the hearing of the appeal subject
to furnishing of personal bond and had not required surrender of the accused
appellant. Copies of several said orders have been placed on record.
3. Section 389 of the Code of Criminal Procedure, 1973
(in short the 'Code') permits a Court to suspend the sentence pending the
appeal and for release of the appellant on bail.
4. Section 389 so far as relevant reads as follows:
Suspension of sentence pending the appeal; release of appellant on bail.
(1) Pending any appeal by a convicted person, the Appellate Court may for
reasons to be recorded by it in writing, order that the execution of the
sentence or order appealed against be suspended and, also, if he is in
confinement, that he be released on bail, or on his own bond.Provided that the
Appellate Court shall, before releasing on bail or on his own bond a convicted
person who is convicted of an offence punishable with death or imprisonment for
life or imprisonment for a term of not less than ten years, shall give
opportunity to the Public Prosecutor for showing cause in writing against such
release:
Provided further that in cases where a convicted person is released on bail it
shall be open to the Public Prosecutor to file an application for the
cancellation of the bail".
(2) The power conferred by this section on an Appellate Court may be exercised
also by the High Court in the case of an appeal by convicted person to a Court
subordinate thereto.
(3) Where the convicted person satisfies the Court by which he is convicted
that he intends to present an appeal, the Court shall,
(i) Where such person, being on bail, is sentenced to imprisonment for a term
not exceeding three years, or
(ii) where the offence of which such person has been convicted is a bailable
one, and he is on bail, order that the convicted person be released on bail
unless there are special reasons for refusing bail, for such period as will
afford sufficient time to present the appeal and obtain the orders of the
Appellate Court under sub-sec. (1), and the sentence of imprisonment shall, so
long as he is so released on bail, be deemed to be suspended."
5. Section 389 (3) has application when there is a right of appeal. Where
prayer for grant of certificate of High Court to appeal in this Court in terms
of Article 136 of the Constitution of India, 1950
(in short the 'Constitution') or is made under Article 134(A) of the
Constitution there is no right of appeal involved. In such cases Section 389(3)
has no application. Merely because somebody intends to file application under
Article 136 of the Constitution and seek leave to appeal under Article 136 of
the Constitution, Section 389(3) of the Code has no application. But the
position is different when a case is covered under Art. 134(l)(a) or Article
134(l)(b) being covered under Section 2 of the Supreme Court (Enlargement of
Criminal Appeal Jurisdiction) Act, 1970 (in short the 'Enlargement Act'). In
Ram Kumar Pande v. The State of Madhya Pradesh it was held that no certificate
of High Court is required since an order for acquittal had been converted into
conviction under Section 302 and life sentence had been imposed. The appeal in
such a case was as a matter of right under the Enlargement Act. Similar view
was taken in Chandra Mohan Tiwari and another v. State of Madhya Pradesh 2. It was held that under Section 379 of the Code which
is in line with Article 134 (1) (a) & (b) of the Constitution, an appeal
lies as of right to this Court in a case where High Court has on appeal reversed
the order of acquittal and has convicted and sentence the accused either to
death or imprisonment for life or imprisonment for a term of 10 years or more.
An appeal under Section 10 of the Act falls to the category of cases where
there is a right of appeal.
6. We are not concerned with the question whether Section 9 of the Act operates
in a broader area than Sec. 389(3) of the Code. Question is whether the accused
who prefers a Criminal Appeal though as a matter of right has to first
surrender or seek exemption from surrendering. Order XXI Rule 13A of the Rules
is relevant in this context. Order XXI deals with Special Leave Petitions in
criminal proceedings and Criminal Appeals. Order XXI is a part of Part II of
the Rules i.e. Appellate Jurisdiction. Sub part (A) relates to Civil Appeals
whereas sub part (B) relates to Criminal Appeals. Rule 13 A of Order XXI reads
as follows:
"Where the appellant has been sentenced to a term of imprisonment, the petition
of appeal shall state whether the appellant has surrendered. Where the
appellant has not surrendered to the sentence, the appeal shall not be
registered, unless the Court, on a written application for the purpose, orders
to the contrary. Where the petition of appeal is accompanied by such an
application, the application shall first be posted for hearing before the Court
for orders."
7. Rule 13A was introduced by GSR 466 dated 22nd June, 1983 with effect from
2.7.1983.
8. Order XXI 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 13A. 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 XXI Rule- 13A has not
been dealt with. It may be that the provision was not brought to the notice of
the Bench. The requirements of Order XXI Rule 13A are mandatory in character
and have to be complied with except when an order is passed for exemption from
surrendering.
9. Learned counsel for the appellant submitted that the Rule cannot be at
variance with the provisions of the Act more particularly in view of Section
9(4) of the Act. The stand is without any basis. Under Section 9(4) of the Act,
the Special Court is authorized to formulate its own procedure to be adopted.
That cannot do away with the requirement stipulated under Order XXI Rule 13 A.
The rules have been framed in exercise of powers conferred by Article 145 of
the Constitution and all other powers in this behalf, by this Court and the
Rules have been made with the approval of the President. Article 145(1) so far
as relevant reads as follows:
"145. Rules of court, etc.-(1) Subject to the provisions of any law made
by Parliament, the Supreme Court may from time to time, with the approval of
the President, make rules for regulating generally the practice and procedure
of the Court including-
(a) Rules as to the persons practising before the Court,
(b) Rules as to the procedure for hearing appeals and other matters pertaining
to appeals including the time within which appeals to the Court are to be
entered;
(c) Rules as to the proceedings in the Court for the enforcement of any of the
rights conferred by Part III;
(cc) Rules as to the proceedings in the Court under [Article 139A];
(d) Rules as to the entertainment of appeals under sub-clause (c) of clause (1)
of article 134;
(e) rules as to the conditions subject to which any judgment pronounced or
order made by the Court may be reviewed and the procedure for such review
including the time within which applications to the Court for such review are
to be entered;
(f) Rules as to the costs of and incidental to any proceedings in the Court and
as to the fees to be charged in respect of proceedings therein;
(g) Rules as to the granting of bail;
(h) Rules as to stay of proceedings;
(i) rules providing for the summary determination of any appeal which appears
to the Court to be frivolous or vexatious or brought for the purpose of delay;
(j) rules as to the procedure for inquiries referred to in clause (1) of
Article 317."
10. As noted above, there is no application made for exemption from
surrendering. Significantly, in the orders passed in the appeals referred to by
learned counsel for the appellants there is no reference to Order XXI Rule 13A.
11. The effect of Order XXI Rule 13A of the Rules does not appear to have been
brought to the notice of the Court while dealing with the application for stay
of the judgment of the High Court in orders on which reliance is placed by
learned counsel for the appellants. The consequences which flow from such non
reference to applicable provisions have been highlighted by this Court in many
cases.
12. In State through S.P. New Delhi v. Ratan LalArora it was held that
where in a case the decision has been rendered without reference to statutory
bars, the same cannot have any precedent value and shall have to be treated as
having been rendered per incuriam. The present case stands at par, if not, on a
better footing. The provisions of Section 439 do not appear to have been taken
note of.
13. "Incuria" literally means "carelessness". In practice
per incuriam is taken to mean per ignoratium. English Courts have developed
this principle in relaxation of the rule of stare decisis. The "quotable
in law", as held in Young v. Bristol Aeroplane Co. Ltd.[ 1944 Indlaw CA 48, is avoided and ignored if it is
rendered, "in ignoratium of a statute or other binding authority".
Same has been accepted, approved and adopted by this Court while interpreting
Article 141 of the Constitution of India, 1950 (in
short the 'Constitution') which embodies the doctrine of precedents as a matter
of law. The above position was highlighted in State of U.P. and another v.
Synthetics and Chemicals Ltd. and another .]. To perpetuate an error is no
heroism. To rectify it is the compulsion of the judicial conscience. The
position was highlighted in Nirmal Jeet Kaurv. State of M.P.[ =
2004 (2) ALT 306 (SC).].
14. The question was again examined in N. Bhargavan Pillai (dead) by Lrs. and
another v. State of Kerala = 2004 (2) ALT 96 (SC).]. It was
observed in para 14 as follows:
"14- Coming to the plea relating to benefits under the Probation Act, it
is to be noted that Section 18 of the said Act clearly rules out application of
the Probation Act to a case covered under Section 5(2) of the Act. Therefore,
there is no substance in the accused-appellant's plea relating to grant of
benefit under the Probation Act. The decision in Bore Gowda's case (supra) does
not even indicate that Section 18 of the Probation Act was taken note of. In
view of the specific statutory bar the view, if any, expressed without
analysing the statutory provision cannot in our view be treated as a binding
precedent and at the most is to be considered as having been rendered per
incuriam. Looked at from any angle, the appeal is sans merit and deserves
dismissal which we direct."
15. The matter can be looked at from another angle. The Special Court had
granted protection for some periods by suspending the sentence. It is the
discretion of the Court whether to extend that protection. But that, in our
view, would be subject to the provisions of Order XXI Rule 13 A. May be that in
those cases relied by learned counsel for the appellants the discretion has
been exercised by extending the period fixed by the Special Court. But that
cannot have any precedent value, more particularly when it is relatable to a
mandatory requirement. Though it is the case of learned counsel for the
appellant that Order XXI Rule 13 A cannot in any way affect the powers
available to Special Court under Section 9(4), there is no substance in the
plea for the simple reason that Section 9(4) only permits the Special Court to
regulate the procedure before it. That in no way authorizes the Special Court
to regulate the proceedings-before this Court.
16. In the aforesaid background it is directed that the appeals shall be posted
only after the appellants surrender and proof of surrender is filed. Ordered
accordingly.
JUDGMENT (per Altamas Kabir, J.)
I have had the privilege of going through the judgment prepared by my learned
brother and I fully agree with the reasoning and the ultimate decision rendered
therein. I would, however, like to dilate on one of the points urged by Ms.
Jaiswal, which has been briefly touched upon in the judgment.
2. It has been submitted that the statutory provisions of section 389 (3)
Cr.P.C , has 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 rules 13 A
before his appeal can be registered .
3. while such a submission is attractive, it does not stand scrutiny for the
simple reason that sub-section (3) of section 389 Cr.P.C empowers the trial
court to release a convicted person on bail for such period as will afford him
for 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
4. The basic fallacy of Ms Jaiswal's submissin is that it overlooks the
question that grant of bail in the appeal purposes surrender by the convicted
person
5.The provisions of section 389 Cr P C and that of the Supreme court Rules,
1966, areindependent provisions and will have to be considered on their own
standing
6.The appeals can, therefore, be posted only after the appellants surrender and
proof of surrender is filed.