TMI Blog1979 (1) TMI 236X X X X Extracts X X X X X X X X Extracts X X X X ..... when it is a first appear against a death sentence or life imprisonment. More particularly, is an appeal to the Supreme Court falling within the scope of Art. 134(1) or the enlarged jurisdiction permitted by Art. 134(2) liable to shorthand hearing and peril of summary dismissal? Brevi manu, the appellant urges that Art. 134 of the Constitution compels this Court to hear and dispose of criminal appeals of the grave categories covered by it, not exparte as Order XXI Rule 15(1) (c) of the Rules permits but in extenso, and only after notice to the State and with the record of the case before it. Therefore, the Rule is bad. Any legal issue of profound impact, if regarded by Judges literally and not creatively, may be given short shrift, especially if counsel is more assertive than explorative, produces more heat than light and the text to be interpreted lends itself to one sense on the surface and another in the deeper layers. But when the consequences of the construction can be calamitous and the subject-matter involves the-right to life and long loss of liberty, a final court, like ours, must reflect on the meaning of meanings, the human values which illumine our legal system and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Art. 136 of the Constitution which includes the power to grant leave to appeal in criminal matters. But this is a discretionary jurisdiction with drastic self imposed limitations rarely realised by the gambling litigant and has hardly any semblance of an absolute right of appeal necessarily fol lowed by a full debate after notice to the adversary. But a segment of criminal cases, standing out as a deadly category is, however, dealt with separately by Art. 134. In a short-hand form, sub-clause (1) clothes an accused person, who has been acquitted by the trial court but sentenced to death at the appellate level, or has been tried by the High Court by withdrawal of the case from any other court subordinate to it and in such trial has been visited with death sentence, or has secured a certificate that his case is of such great moment as to qualify for pronouncement by the Supreme Court, with a right- shall we say, a constitutional right-of appeal to this Court. More over, under clause (2) of this Article, Parliament may make law for conferring a statutory right of appeal on other classes of convicts. A Pursuant to this power Parliament has enacted the Supreme Court (Enlargemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing on the constitutional provisions vis-a-vis Order XXI Rule (l)(c) and the second turning on the construction and impact of s. 384, Cr. P.C. Taking up the constitutional aspects first, we may proceed to state, right away, the complex of provisions relevant to the discussion and the perspective in which we must read their message. Art. 134 of the Constitution confers criminal appellate jurisdiction on this Court: 134. Appellate jurisdiction of Supreme Court in regard to criminal matters.- (1) An appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India if the High Court- (a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death; or (b) has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to death: or (c) certifies that the case is a fit one for appeal to the Supreme Court: Provided that an appeal under sub-clause (c) shall lie subject to such provisions as may be made in that behalf under clause (1) of Article 145 and to such co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing is to cast a reflection on the High Court's capacity to understand the seriousness of a certification. Now it is relevant to read Art. 136(1). 136. Special leave to appeal by the Supreme Court (1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. A plenary discretion vests in the Supreme Court to deign or decline to grant leave to appeal against any conviction or sentence. Before deciding to grant or reject such leave the court accords an oral hearing after perusing all the papers produced. Once leave is granted, is heard, after notice to the State, in full panoply. After leave, the appeal is born. Then it ripens into fullness and is disposed of when both sides are present. No appeal, after leave, is dismissed summarily or ex parte. The relevance (If Art. 136 in an examination of Art. 134 is this. If Art. 136 gives a discretionary power to grant leave to appeal or to dismiss in limine, after an ex parte hearing (or after issue of notice if the court so choose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... put up for hearing ex parte before the Court which may either dismiss it summarily or direct issue of notice to all necessary parties or may make such orders, as the circumstances of the case may require, namely:- (a) ........ (b) ......... (c) an appeal under sub-clause (a) or sub clause (b) of clause (1) of article 134 of the Constitution, or under the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 (28 of 1970) or under section 379 of the Code of Criminal Procedure, 1973 (2 of 1974). Plainly, this rule clothes the court with power to shorten the life of an appeal even under Article 134 by dismissing it ex-parte, summarily. Is this abbreviatory power absonent with the appellate scheme envisaged in Art. 134 and, therefor, excessive or offensive and void ? Or is the rule valid because it does not bear upon the substantive right of appeal but relates to the procedure for hearing and fall squarely within Art. 145(1)(b) ? This is the main crux of the debate. It would be noticed that Art. 134(2) empowers Parliament to expand the jurisdiction of the Supreme Court to entertain criminal appeals. Parliament, in exercise of this power, enacted the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under Art. 134 (1) (c) cannot be precisely formulated but it should be exercised sparingly and not to convert the Supreme Court into an ordinary court of criminal appeal. An accused person has no absolute right of appeal even A in circumstances mentioned in clauses (a) and (b) of Art. 134(1) if the High Court sentences him to life imprisonment or imprisonment of 10 or more years. In such a case his appeal would be admitted in special and exceptional cir cumstances only either under Art. 134(1) (c) or Art. 136 of the Constitution. * * * * It is therefore proposed to enlarge the appellate jurisdiction of the Supreme Court empowering it to entertain and hear appeals also in cases mentioned in sub-clauses (a) and (b) of clause (2) of the Bill. What is created is an unconditional right of appeal, nothing less and wider than is enjoyed under Art. 136. We have stated at the outset that for satisfactory understanding of the problem and its solution, certain provisions of the Criminal Procedure Code which cover the same ground need to be dealt with. We will advert to them briefly here conscious that the crucial issue is constitutional. The Code cannot control or contradict th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , sending for the records and record of reasons by a speaking judgment. If the answer is in the affirmative the survival of Order XXI Rule 15(1) (c) is perilous. Reaching the same result by resort to artificial respiration from s. 384 may have to be considered. But anticipating our conclusion to avoid suspense, we sustain both the provisions by reading down their scope, substance and intendment. The appellants have an undeniable right of appeal; but what are the necessary components of a hearing when such a right is exercised ? Counsel for the appellant insisted that an absolute right of appeal, as he described it, casts an inflexible obligation on the court to send For the record of the case, to hear both parties, and to make a reasoned judgment. Therefore, to scuttle the appeal by a summary hearing on a preliminary posting, absent record, ex parte and absolved from giving reasons is to be; absolutist-a position absonant with the mandate of the Enlargement Act and, indeed, of the Constitution in Article 134 (1) . Counsel's ipse dixit did not convince us but we have pondered over the issue in depth being disinclined summarily to dismiss. At the threshold, we have to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicial precedent modified by statute; the attitude of the courts to the authority of decided cases; the political and administrative structure of the country concerned-whether for example its internal sovereignty is limited by its allegience to a colonizing power. The list of possible factors is endless, and their weight and function in the social equation defy precise analysis. In short, we agree in principle with the sum-up of the concept made by the author: Appeal, as we have stressed, covers a multitude of jurisprudential ideas. The layman's expectation of an appeal is very often quite different from that of the lawyer and many an aggrieved plaintiff denied his 'just' remedy by judge or jury has come upon the disturbing reality that in England a finding of fact can seldom, if ever, form the basis of an appeal. Similarly, a Frenchman accustomed to a narrowly legalistic appeal in cessation, subject to subsequent reargument in a court below, would find little familiarity in the ponderous finality of the judgment of the House of Lords. And a seventeenth-century lawyer accustomed to a painstaking search for trivial mistakes in the court record, which formed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liberty have been the cynosure of special constitutional attention in Art. 21, the fuller implications whereof have been unrevelled in Maneka Gandhi's case(1). When we read the signification of the right of appeal under Art. 134 we must remember that it is a part of the procedure established by law for the protection of life and personal liberty. Surely, law, in this setting, is a pregnant expression. Bhagwati, J. in Maneka Gandhi (supra) stated the position emphatically and since then this Court has followed that prescription and even developed it in humane directions a striking example of which is the recent judgment in Presidention Reference No. 1 of 1978.(2) Is the prescription of some sort of procedure enough or must the procedure comply with any particular requirements ? asks Bhagwati, J. in the leading opinion, and answers: Obviously, the procedure cannot be arbitrary, unfair or unreasonable .... The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Art. 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any fundamental rights. We have made these general remarks to set the interpretative tone when translating the sense of the expression appeal shall lie to the Supreme Court . Nothing which will render this right illusory or its fortune chancy can square with the mandate of Article 21. What applies to the right of appeal under s. 2(a) of the Enlargement Act must apply to an appeal under Art. 134(1)(a) and (b) and therefore, it is wiser to be assured of what comports with reasonableness and fairplay in cases covered by the latter category. When an accused is acquitted by the trial court, the initial presumption of innocence in his favour is reinforced by the factum of acquittal. If this reinforced innocence is not only reversed in appeal but the extreme penalty of death is imposed on him by the High Court, it stands to reason that it requires thorough examination by the Supreme Court. A similar reasoning applies to cases falling under Art. 134(1)(b). When the High Court trying a case sentences a man to death a higher court must examine the merits to satisfy that a human life shall not be haltered without an appellate review. The next step is whether 3 hearing that is to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r XXI, ordinarily the records are sent for and are available. Counsel's assistance apart, the court itself must apply its mind, the stakes being grave enough. The next ingredient contended for is the hearing of the opposite party and notice to him in that behalf. That is to say, the appeal shall not be dismissed summarily or after a mere preliminary hearing even with the records on hand but only after notice and debate at the bar. Speaking generally, our adversary system finds fulfilment when both sides present rival points of view, unearth embedded infirmities and activate the proceeding with the sparks emanating from the clash of arms. Such considerations may not loom large but for the fact that it is a first appeal we are dealing with and the risk is to life itself. Therefore, we hold that in the common run of cases the Court must issue notice to the opposite party, namely, the State and afford a hearing in the presence of both and with the records on hand. The vital aspects of natural justice have been carefully incorporated in our criminal jurisprudence. The recording of reasons is usually regarded as a necessary requirement of fair decision. The obligation to give r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases, the passing of judgment at the third tier without giving reasons where the conclusion is one of affirmance. Natural justice cannot be fixed on a rigid frame and fundamental fairness is not unresponsive to circumstances. The very fact that the subject matter is not fraught with loss of life or long incarceration and that the appellate or revisionary authority is a high tribunal which has examined the materials are an assurance of competent and conscientious consideration of the facts and the law. Further protection at the third deck by calling for the records or launching on long ratiocination is a waste of judicial time. Our rules of criminal proceedure and those of other countries with mature systems of justice provide for dismissal at the third level without assigning written reasons, not because there are no reasons, but because the tardy need to document them hampers the hearing of the many cases in the queue that press upon the time of the court at that level. We uphold Order XXI, Rule 15(1) (c) of the Rules because it does not have play in certain situations. It must be noted that that provision does not make it obligatory to dispose of all cases summarily or at a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edy is reduced to a husk by procedural excess, the right became a casualty. That cannot be. So we cannot out down but may canalise the basic right by invoking Article 145(1)(b). Harmoniously read, the sequence is simple. The formalities for entertaining certain types of appeal are covered by Art. 145(1) (d), the manner of hearing and disposal is governed by Art. 145 (1) (b) and the substantive sweep of the appeal as a method of redressal is found in Art. 134. Amputation of this anatomy by procedural surgery is doing violence to the constitutional scheme. An appeal is a re-hearing, and as Viscount Cave laid down, It was the duty of a court of appeal in an appeal from a judge sitting alone to make up its own mind, not disregarding the judgment appealed from and giving special weight to that judgment where the credibility of witnesses comes into question, but with full liberty to draw its own inferences from the facts proved or admitted, and to decide accordingly. (1) Prof. A. L. Goodhart, dealing with appeals on questions of fact in the English Law, wrote: ....it may be suggested, with all respect, that when the appellate judges are in agreement with the trial judge, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry considerable loophole of being empowered to reject such an appeal on the grounds that the federal question, otherwise validly raised, is substantial . This highly significant discretionary element in the area of the Court's so-called compulsory appellate jurisdiction caused it to dismiss 70 appeals in the 1955-56 term, for example. Of these 40 were rejected for want of a substantial federal question , the balance on other jurisdictional grounds. In the 59- 60 term, 63 of a total of 113 appeals were dismissed on the insubostalltiality ground ! As a rule, fully 50 to 60 per cent of the writs of appeal are thus dismissed or the judgment below affirmed without printing the record or oral argument .... In effect, the appeel is hence used but sparingly-to date in approximately 9 per cent of all cases or controversies presented to the Court. (1) Nor are we charmed by some counsel sometimes asscrting the importance of Oral Arguments Unlimited forgetting that prolixity is counter-productive and expensive and obstructive of case-flow.(2) We never deny the brightening of obscure points and the cross- pollination of creative views promoted by an active process of oral argument. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inary hearing and summary disposal, the meaningful difference between Art. 134 and Art. 136 may be judicially eroded and Parliament stultified. Maybe, many of the appeals after fuller examination by this Court may fail. But the minimum processual price of deprivation of precious life or prolonged loss of liberty is a single comprehensive appeal. To be peeved by this need is to offend against the fair play of the Constitution. The horizon of human rights jurisprudence after Maneka Gandhi's case (supra) has many hues. The relevant provision of the Criminal Procedure Code have already been quoted. Counsel for the appellant had obvious difficulty in overcoming the obstacle of s. 384. That section is sweeping. Any appellate court (which includes the Supreme Court under Art. 134) may hear and dispose of an appeal summarily, without the records and recording no reasons for dismissal if it is the High Court or the Supreme Court. Literally read, it sounds arbitrary, where death sentence, at the first appeal is involved. Article 21, in its expansive incarnation, may fatally knock down any summary power of fatally knocking down an appellant facing death penalty in first appeal by an un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al System, involving as it does sterile expense and delay and fruitless chase of perfection. The Evershed Committee, a quarter of a century ago, expressed dissatisfaction with the system of multiple appeals what with the social cost of litigative prolongation, burden of precedents and heavy outlay-a luxury which a Third World country can illafford. Too many appeals are counter- productive as A.P. Herbert in 'Uncommon Law' has wittily driven home: The people may be taught to believe in one court of appeal; but where there are two they cannot be blamed if they believe in neither. When a man keeps two clocks which tell the time differently, his fellows will receive with suspicion his weightiest pronouncements upon the hour of the day, even if one of them happens to be right. Way back in 1832 it has been pointed out that- The only ground upon which a suitor ought to be allowed to bring the judgment of one court for examination before the members of another is the certainty or extreme probability of finding in the latter tribunal more wisdom and learning, more maturity of deliberation, and a greater capacity of sound decisions than existed in the court from which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d without giving reasons. When the Crl. Misc. Petition No. 1862 of 1978 came up before this Court it was ordered:- The appellants have challenged the constitutional validity of cl. (c) of sub-rule (1) of rule 15 of O. XXI of the Supreme Court Rules, which enables an appeal of the kind with which we are concerned, to be placed for hearing ex parte before the Court for admission. In that view of the matter, we think that unless the question of the constitutional validity of the rule is decided, we cannot have a preliminary hearing of this appeal for admission. Let the records, therefore, be placed before the Hon'ble the Chief Justice for giving such directions as he may deem fit and proper. As the constitutional validity of cl. (c) of rule 15(1) of Order XXI of the Supreme Court Rules was challenged, the matter was placed before the Full Bench by the Chief Justice. Rule 15 of Order XXI of the Supreme Court Rules 1966 runs as follows:- 15. (1) The petition of appeal shall be registered and numbered as soon as it is lodged. Each of the following categories of appeals, on being registered, shall be put up for hearing ex parte before the Court which may either dismiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to death; or (c) certifies that the case is a fit one for appeal to the Supreme Court. Provided that an appeal under sub-clause (c) shall lie subject to such provisions as may be made in that behalf under clause (1) of article 145 and to such conditions as the High Court may establish or require. (2) Parliament may by law confer on the Supreme Court any further powers to entertain an hear appeals from any judgment, final order of sentence in a criminal proceeding of a High Court in the territory of India subject to such conditions and limitations as may be specified in such law. While an unrestricted right of appeal is provided to the Supreme Court under clauses (a) and (b) i.e. where on appeal an order of acquittal is reversed by the High Court and an accused person is sentenced to death or when the High Court has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to death, an appeal under article 134(1) (c) is subject to certain restrictions. An appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 70 has also a right to appeal unrestricted by any of the provisions of Article 134 (1) (c) or the rules framed by the Supreme Court under article 145 (1) (d). The submission of learned counsel fails to take note of Article 145 (1) (b) which empowers the Supreme Court to frame rules as to the procedure for hearing appeals which would include hearing of appeals under article 134 (1) (a) and (b) of the Constitution as well as appeals under the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970. The rules therefore are properly made under Art. 145 (1) (b) and would be valid so far as to the procedure for hearing appeals. The submission of the learned counsel is that when a right of appeal is conferred on a person the appeal can only be disposed of by the Supreme Court after full hearing i.e. after calling for the records, issuing notice to the other side and hearing both the parties and giving reasons for its conclusion. It was submitted that a summary dismissal affects the substantive right of appeal and is not confined to procedure and is contrary to the provisions of the law made by Parliament and as such beyond the rule making powers conferred under article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... months or of fine not exceeding one thousand rupees or of both is taken away under s. 376. Section 379 confers a right of appeal to the Supreme Court where the High Court has, on appeal, reversed an order of acquittal of an accused person and convicted him and sentenced him to death or to imprisonment for life or to imprisonment for a term of ten years or more. Section 379 gives effect to the provision of Art. 134 (1) (a) and (b) of the Constitution and section 2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970. The result of the passing of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 and section 379 of the Criminal Procedure Code is that they provide an appeal to the Supreme Court in addition to the right of appeal conferred under Article 134 (1) (a) and (b) of the Constitution. The contention of Mr. Mulla, the learned counsel for the appellant, is that rule 15 (1) (c) of Order XXI not merely relates to the procedure but also deprives the substantive right of appeal conferred on the accused under article 134 (1) (a) and (b) and the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act,1970 and under s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ec. 376 and could be dealt with summarily under sec. 384 of the Criminal Procedure Code. Mr. Mulla, the learned counsel submitted that the provisions of the Criminal Procedure Code are not applicable to the Supreme Court. But this plea does not bear scrutiny in view of the specific provisions making the procedure applicable to the Supreme Court. An appeal to the Supreme Court is subject to the several provisions of the Crl. Procedure Code, including the provisions relating to summary disposal of the appeals. The plea of the learned counsel that the provisions of the impugned rule are contrary to any law made by Parliament is not maintainable. The impugned rule 15 (1) (c), Order XXI, more or less incorporates the provisions found in the Crl. Procedure Code. The contention of the learned counsel that the right conferred on him under article 134 (1) (a) and (b) of the Constitution and under the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970, is curtailed is therefore without substance. In the result, we find that the contention of the learned counsel, namely that the impugned rule is beyond the rule-making power of the Supreme Court under article 145 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay fail to satisfy the requirements of the article if the proce dure prescribed is no procedure at all. We cannot accept the plea that the procedure prescribed by the Criminal Procedure Code is no procedure at all. The main objection to the invoking of Article 21 for challenging the validity of the impugned rule is that a person convicted of an offence has no right of appeal unless such a right is conferred by the statute. If the statute does not confer a right of appeal the person has no remedy. If P. K. Mittra v. State of West Bengal. (1) this Court held that a right of appeal is a statutory right which has got to be recognised by the Courts, and the right of appeal, where one exists, cannot be denied in exercise of the discretionary power even of the High Court. An appeal is a creature of the statute and the powers and the jurisdiction of the appellate court must be circumscribed by the words of the statute vide Shankar Kerba Yadhav v. State of Maharashtra.(2) A right of appeal must be given by statute or by some authority equivalent to a statute or rules framed under a statute vide Minakshi v. Subramanya.(3) The powers and the jurisdiction of the appellate Court as prescribe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty of the appellate court to hear the appellant, examine the petition of appeal and copy of the judgment appealed against. If it feels necessary to call for the records of the case, it is its duty to call for the records and examine them, before coming to the conclusion that there are no sufficient grounds for interfering. It is the responsibility of the appellate authority to order notice and hear the other side if it is not satisfied that there are no sufficient grounds for interfering. Equally it is the duty of the appellate court to dismiss the appeal summarily if it satisfied that there are no sufficient grounds for interefering. This duty is imposed for regulating the work of the courts for otherwise judicial time would be unnecessarily spent. Taking into account the fact that the duty to decide the question where there are not sufficient grounds for interfering is placed on highly placed judicial officers after affording a due hearing, it cannot be stated that the very right of appeal has been taken away. It is not possible to accept the contention that the procedure prescribed is not in accordance with the law as the Criminal Procedure Code and the impugned rules are laws ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is petition of appeal and the documents mentioned in rule 13 including any written argument which he may desire to advance to the Officer-in- charge of the jail, who shall forthwith forward the same to the Registrar of this Court. The petition of appeal thus received under rule 13 and 14 is put up for hearing ex-parte before the Court which is empowered either to dismiss it summarily or to direct issue notice to the necessary parties. Thus it is to be seen that the procedure contemplated in rules 13, 14 and 15 is almost similar to the provisions of the Code of Criminal Procedure referred to above. In an appeal sent by the appellant from jail he is entitled to and any written arguments which he may desire to advance in support of his appeal. The Court in proper cases in which it considers it desirable would engage an advocate to present the case of the appellant in jail. The mere fact that the appellant in jail is not being heard in person or through an advocate would not mean that the appeal of the appellant in jail is not being heard. The Court peruses the judgment, petition of appeal and the written arguments, if any, before proceeding to take action under rule 15. This Court bei ..... 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