# [1976] 2 S.C.R. 324

- **Citation:** [1976] 2 S.C.R. 324
- **Court:** Supreme Court of India
- **Decided:** 1975-11-06
- **Case number:** Criminal Appeal No. 135 of 1971
- **Bench:** M. H. Beg, P. K. Goswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1976-2-s-c-r-324-6810
- **Pages:** 3

## Headnote

Supreme Court Rules, 1950-0.21, r.2-0.47, v.1.-Scope of.
Rule 2 of' Order 21 of the Su11reme 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 ente1tained unless the
High Court co.ncerned has firs.I 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The High Court rejected the application as withdrawn.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 : ( l) The requirement of r. 2 of 0.21 has not been complied with.
Withdrawal of the application by the appellan~s showed that they abandoned the
idea of moving the Supreme Court.
[3250]
· ._,,
(2) Rule 2 of Order 21 is by itself mandatory. The fact thlt its compliance may be excused by the Court in appropriate cases doe~ 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 rnade a definitely wrong statement
in the special leave application with regard to their earlier application for leave
in the High Court.
[325G; 326A]

## Text

A
B
c
D
F
G
H
32 4
MANGO AND ANR.
I'.
STATE OF RAJASTHAN
November 6, 1975
[M. H. BEG AND P. K. GOSWAMI, JJ.]
Supreme Court Rules, 1950-0.21, r.2-0.47, v.1.-Scope of.
Rule 2 of' Order 21 of the Su11reme 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 ente1tained unless the
High Court co.ncerned has firs.I 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 : ( l) The requirement of r. 2 of 0.21 has not been complied with.
Withdrawal of the application by the appellan~s showed that they abandoned the
idea of moving the Supreme Court.
[3250]
· ._,,
(2) Rule 2 of Order 21 is by itself mandatory. The fact thlt its compliance may be excused by the Court in appropriate cases doe~ 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 rnade a definitely wrong statement
in the special leave application with regard to their earlier application for leave
in the High Court.
[325G; 326A]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 135
of 1971.
Appeal by Special Leave from the Judgment and Order 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 l.P.C. and sentenced to imprisonment and fine.
The
High Court on appeal acquitted four of them and maint.aine<l the c~11viction and sentence of the two appellants who were mvolve<l with
several others. The appellants moved an application for a
~rtificate
praying for leave to appeal to this Court under article 134(1) (c) of
i
-
)
•\
MANGO v. RAJASTHAN (Goswami, J.)
32 5
;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.
Jt was mentioned in para 5 of the special Iea\\e petition that their appli-
.cation for leave in the High Court was rejected "on ments, but not as
.being out of time".
A preliminary objection has been raised on behalf of the respon-
·dent 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
Righ 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 ahd
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 had been earlier given by the
Court for m~king an appropriate application even at this stage. Even
this opportunity was not availed of by the appellants.
A
B
c
[)
E
F
G
H
326
SUPREME COURT REPORTS
[1976] 2 S.C.R.
/
A
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
B
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.
c
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.
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