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PETITIONER: MANGU AND ANR.

       Vs.

RESPONDENT: STATE OF RAJASTHAN

DATE OF JUDGMENT06/11/1975

BENCH: GOSWAMI, P.K. BENCH: GOSWAMI, P.K. BEG, M. HAMEEDULLAH

CITATION:  1976 AIR  176            1976 SCR  (2) 324  1976 SCC  (1) 410

ACT:      Supreme Court  Rules, 1950-0.21,  r.2-0.47,  v.1.-Scope of.

HEADNOTE:      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 The  High Court  rejected the  application as withdrawn.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 to appeal, ^      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]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION :  Criminal Appeal No. 135 of 1971.      Appeal by  Special Leave  from the  Judgment and  Order

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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 appellants.      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

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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 Court.      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.      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. 327