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PETITIONER: JHARIA S/O MANIYA

       Vs.

RESPONDENT: STATE OF RAJASTHAN AND ANOTHER

DATE OF JUDGMENT21/07/1983

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) VENKATARAMIAH, E.S. (J) MISRA, R.B. (J)

CITATION:  1983 SCR  (3) 475        1983 SCC  (4)   7  1983 SCALE  (2)78

ACT:      Constitution of  India-Art. 32-Whether a petition under Art. 32  is maintainable  to  assail  the  finality  of  the decision of the Court in a special leave petition under Art. 136 ?

HEADNOTE:      The petitioner  and his  two associates  were convicted and sentenced  under s.  302 read  with  s.  34,  I.P.C.  On appeal, the  High Court  maintained the  conviction  of  the petitioner but  acquitted his  associates  giving  them  the benefit of  doubt. The  Petitioner applied to this Court for grant of special leave to appeal under Art. 136 but the same was dismissed. By this petition under Art. 32 the petitioner sought issuance of a writ of mandamus directing the State to forbear from  giving effect  to the  judgment  and  sentence passed by  the trial  court as also the judgment of the High Court as  well as  the order passed by this Court dismissing the special leave petition on the ground that his conviction was illegal  and therefore  his detention  in  jail  was  in violation of Art. 21 read with Arts. 14 and 19.      Dismissing the petition, ^      HELD: The  propriety of  asking for  a  declaration  in these proceedings  under Art.  32  that  conviction  of  the petitioner by the High Court for an offence punishable under s. 302  read with s. 34 I.P.C. is illegal, particularly when this Court  has declined  to grant  special leave under Art. 136 cannot  be appreciated.  Nor can the petitioner be heard to say  that his detention in jail amounts to deprivation of the fundamental  right to life and liberty without following the procedure  established by  law in  violation of  Art. 21 read with  Arts. 14 and 19. When a special leave petition is assigned to  the learned  judges sitting  in a  Bench,  they constitute the  Supreme Court  and there  is a  finality  to their judgment  which cannot  be upset  in these proceedings under Art.  32. Obviously,  the Supreme Court cannot issue a writ, direction  or  order  to  itself  in  respect  of  any judicial proceedings and the learned judges constituting the Bench are  not amenable  to the  writ jurisdiction  of  this Court.

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                                                  [470 D-F]      Shankar Ramchandra  Abbyankar v.  Krishnaji  Dattatreya Bapat, [1970] 1 S.C.R. 322, referred to.

JUDGMENT:      ORIGINAL JURISDICTION:  Writ  Petition  (Criminal)  No. 1632 of 1981. 476      Under article 32 of the Constitution of India.      S.K Jain for the Petitioner.      The Judgment of the Court was delivered by      SEN, J. This petition under Art. 32 of the Constitution is clearly  not maintainable  and must  be dismissed  but in view  of   the  growing   trend  of  filing  such  frivolous applications, we  deem it  necessary to  state  the  reasons therefor.      It appears  that the  petitioner along  with two others was arraigned before the Sessions Judge of Alwar in Sessions Trial No.  110 of  1976  for  having  committed  an  alleged offence punishable  under s.  302 of  the Indian Penal Code, alternatively, under  s. 302 read with s. 34 of the Code. By his finding  and sentence  dated April  21, 1977 the learned Sessions  Judge   convicted  the   petitioner  and  his  two associates for  having committed  the murder of the deceased Jharia in furtherance of their common intention under s. 302 read with  s. 34  and sentenced  each  of  them  to  undergo imprisonment for life, while recording their acquittal under s. 302.  On appeal,  a Division  Bench of the Rajasthan High Court (Jaipur  Bench) in  Criminal Appeal No. 219 of 1977 by judgment dated July 3, 1980 maintained the conviction of the petitioner under s. 302 read with s.34 but acquitted his two associates giving  them the  benefit of  doubt. Dissatisfied with the  judgment of the High Court, the petitioner applied to this  Court for  grant of special leave under Art. 136 of the Constitution.  The special  leave petition was dismissed by this  Court on  February, 23,  1981. An  application  for review was  also dismissed on November 19, 1981. Thereafter, the petitioner  filed this  petition under Art. 32 assailing his  conviction  and  sentence.  The  petitioner  seeks  the issuance of  a writ  of  mandamus  directing  the  State  of Rajasthan to  forbear from giving effect to the judgment and sentence passed  by the  learned Sessions  Judge as also the judgment of  the High  Court as  well as the order passed by this Court dismissing the special leave petition. He further seeks a  declaration that  his conviction  under s. 302 read with s.  34 by  the High Court was illegal and therefore his detention in  jail was  without the  authority of law and in violation of  Art. 21  read with  Arts. 14  and  19  of  the Constitution. 477      The petitioner  contends that  in view of the decisions of  this   Court  in   Krishna  Govind  Patil  v.  State  of Maharashtra(1), Maina  Singh v.  State of  Rojasthan(2)  and Piara Sinnh  v. State  of Punjab(3), his conviction under s. 302 read  with s. 34 was illegal as he had been charged with two other  named persons who have been acquitted by the High Court and  therefore he  cannot be  convicted of  an offence punishable under  s. 302  read with  s. 302 read with s. 34. Upon this  basis, the  contention is that the petitioner has been deprived  of his life and liberty without the authority of law  in violation of Art. 21 read with Arts. 14 and 19 of the  Constitution.    It  is  represented  to  us  that  the contention based  upon the  decisions of this Court had been

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advanced during  the course  of the  hearing of  the special leave petition,  but both the special leave petition and the application for review have been dismissed and therefore the petitioner has no other remedy except to approach this Court for appropriate  writ, direction  or order  under Art. 32 of the Constitution.      We fail  to appreciate  the propriety  of asking  for a declaration n  in  there  proceedings  under  Art.  32  that conviction of  the petitioner  by  the  High  Court  for  an offence punishable under s. 302 read with s. 34 of the India Penal Code  is illegal,  particularly when  this  Court  has declined to  grant special leave under Art. 136. Nor can the petitioner be  heard to  say  that  his  detention  in  jail amounts to  deprivation of the fundamental right to life and liberty without  following the  procedure established by law in violation  of Art.  21 read  with Arts. 14 and 19. When a special leave  petition is  assigned to  the learned  Judges sitting in  a Bench,  they constitute  the Supreme Court and there is  a finality to their judgment which cannot be upset in these  proceedings under  Art. 32. Obviously, the Supreme Court cannot  issue a  writ, direction or order to itself in respect of  any judicial  proceedings and the learned Judges constituting  the   Bench  are  not  amenable  to  the  writ jurisdiction of this Court.      In Shankar Ramchandra Abbyankar v. Krishnaji Dattatreya Bapat,(4) this  Court laid  down that if there are two modes of invoking  the jurisdiction  of the  High Court and one of those modes has been 478 chosen as  exhausted, it  would not  be a  proper and  sound exercise of  discretion to  grant relief  the other  set  of proceedings in  respect of the same order of the Subordinate Court. In  that case,  the respondent had already chosen the remedy under s. 115 of the Code of Civil Procedure 1908, but a learned  Single Judge  dismissed the  revision. Thereupon, the respondent  moved the  High Court  by a  petition  under Arts. 226  and 227  of the Constitution challenging the same order of  the appellate  court. A Division Bench of the High Court held  that in  spite of  the dismissal of the revision petition, it  could interfere  under Arts.  226 and 227 on a proper case  being made out, and after going into the merits of the  case, it granted relief to the respondent. On appeal to this  Court, the contention was that the High Court could not have interfered under Arts. 226 and 227. That contention of the  appellant prevailed and the judgment of the Division Bench of the High Court was set aside. It was observed:           "The  refusal   to  grant   relief  in   such      circumstances would  be  in  consonance  with  the      anxiety of  the court  to prevent abuse of process      as also  to respect and accord finality to its own      decisions."      There is  no reason  why the  same principle should not equally  apply   to  proceedings   under  Art.   32  of  the Constitution  which   are  initiated  after  the  Court  has declined to interfere under Art. 136.      For these  reasons, the  writ  petition  fails  and  is dismissed. H.L.C.                                   Petition dismissed. 479