1975 INSC 0427
                                                Mangu and Another

                                                           Vs

                                               The State of Rajasthan

                                        Criminal Appeal No. 135 of 1971

                                          (P. K. Goswami, M. H. Beg JJ)

                                                      06.11.1975

                                                     JUDGMENT

GOSWAMI, J. -

1. 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 with several others. The appellants moved an application for a certificate
praying for leave to appeal to this Court under Article 134 (1)(c) of 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leave application was withdrawn and on May 12, 1971, the High Court rejected the application as
withdrawn.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".

2. 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.

3. 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 small he entertained unless the High Court concerned has first been
moved and it has refused to grant the certificate.

Since the application foe leave was withdrawn by the appellants it could not be said that the High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 moving the
Supreme Court against the judgment. The requirement of Rule 2 has not, therefore, been complied
with.

4. 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.

5. 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.

6. 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.

7. 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 has
made a definitely wrong statement in the special leave application with regard to their earlier
application for leave in the High Court.

8. 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 reappreciating the evidence and
does not disclose any manifest grave error of law or miscarriage of justice.

9. 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.

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