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CASE NO.: Appeal (crl.)  685 of 2006

PETITIONER: Mayuram Subramanian Srinivasan                   

RESPONDENT: C.B.I                                                                    

DATE OF JUDGMENT: 16/06/2006

BENCH: ARIJIT PASAYAT

JUDGMENT: J U D G M E N T WITH

CRIMINAL APPEAL NOS. 687 OF 2006 AND 688 OF 2006

ARIJIT PASAYAT, J.

       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.           Learned counsel for the appellants submitted that the  appeal is under Section 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.

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.

       Section 389 so far as relevant reads as follows : Suspension of sentence pending the  appeal; release of appellant on bail.\027 (1)  Pending any appeal by a convicted person, the

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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,\027   (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-section (1), and the sentence of  imprisonment shall, so long as he is so  released on bail, be deemed to be suspended."   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 Article 134(1)(a) or Article 134(1)(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 (AIR 1975 SC 1252) 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

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a matter of right under the Enlargement Act.  Similar view was  taken in Chandra Mohan Tiwari and Another v. State of  Madhya Pradesh ( AIR 1992 SC 891).  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.  

We are not concerned with the question whether Section  9 of the Act operates in a broader area than Section 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."

Rule 13A was introduced by GSR 466 dated 22nd June,  1983 with effect from 2.7.1983.

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.

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

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Court is authorized to formulate its own procedure to be  adopted. That cannot do away with the requirement stipulated  under Order XXI Rule 13A. 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 lime 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."   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.   

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.  

In State through S.P. New Delhi v. Ratan Lal Arora  (2004) 4 SCC 590) 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

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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.  

"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) 2 All E.R. 293, 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 (1991) 4 SCC  139). To perpetuate an error is no heroism.  To rectify it is the  compulsion of the judicial conscience. The position was  highlighted in Nirmal Jeet Kaur v. State of M.P. (2004 (7) SCC  558).

The question was again examined in N. Bhargavan Pillai  (dead) by Lrs. And Anr. v. State of Kerala (AIR 2004 SC 2317).  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."   

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 13A. 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 13A 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.

In the aforesaid background it is directed that the

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appeals shall be posted only after the appellants surrender  and proof of surrender is filed.  Ordered accordingly.