# ' ' ' SIT A RAM & ORS v. STATE OF U.P

- **Citation:** [1979] 2 S.C.R. 1085
- **Court:** Supreme Court of India
- **Decided:** 1979-01-24
- **Bench:** V. R. K!lISl!NA IYER, P. N. Shinghal, P. S. Kailasam, D. A. Desai B, A. D. KosHAL
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sit-a-ram-ors-v-state-of-u-p-7466
- **Pages:** 41

## Headnote

Supreme Comt Rules, 1966, Order XXL, Rule 15(J)(c), Constitution of
Indt'a, 1950. Articles 134, 136, 145, Criminol Procedure Code, 1898, s. 384
and Supreme Court (Enlargement of Crim/no/

## Text

_Characters 0–39,899 of 109,444. This is a partial read: ask again with offset=39899 for what follows._

'
' '
SIT A RAM & ORS.
v.
STATE OF U.P.
January 24, 1979
1085
A
(V. R. K!lISl!NA IYER, P. N. SHINGHAL, P. S. KAILASAM, D. A. DESAI
B
AND A. D. KosHAL, JJ.]
Supreme Comt Rules, 1966, Order XXL, Rule 15(J)(c), Constitution of
Indt'a, 1950. Articles 134, 136, 145, Criminol Procedure Code, 1898, s. 384
and Supreme Court (Enlargement of Crim/no/
Appellate Jurisdiction)
Act,
1970, J. 2(a)-Procedure of the Supreme Court hearing appeals in criminal
.•nattrrs tll th1~ ad1ni.ssion stage ex·parte-Whetlu:r ultra vires.
C
1¥ords &. Fhrases-'Appeal' and procedure-Meaning of.
Rule 15(1) (c) of Order XX! of the Supreme Court Rules, 1966 envisages
that the petition of appeal under sub-clause (al or sub-cl•use (b) of clause
(1) of Art. 134 of the Constitution or under the Supreme Court (Enlargement
of Criminal Appellate Jurisdictioo) Act, 1970 or under s. 379 of the Code
of Criminal Procedure 1973, on being registered shall be put up for hearing
D
ex-parte before the court which may either dismiss it
summarily or direct
issue of notice to au necessary parties or make such orders, as the circumstances
of the case me.y require.
The appellants in the appeal who were acquitted by the Sessions Court
had been convicted and sentenced by the High Court and a\varded life im·
prisonment under s. 302 read with s. 149 !PC.
E
When their appeal under the Supreme Court (Enlargement
of
Criminal
Appellate Jurisdiction) Act, 1970 was listed for
preliminary hearing under
Rule 15(1)(c) of Order XX! of the Supreme Court Rules,
1966
it was
contended ( 1) that the said provision empowering the court to dismiss the
appeal summarily was ultra vires the Enlargement Act, 1970, (2) the power
of the Supreme Court to frame rules under Art. 145 of the Constitution cannot be extended to annul the rights conferred under an Act of Parliament
nnd (3) that an appeal under the Enlargement Act, 1970 cannot be dismissed
summarily without calling for the records, ordering notice to the State and
without giving reasons.
HELD:
(Per Krishna Iyer. Shinghal & Desai, IJ.)
l. Article 134(1) (c)
spells
a
measure of seriousness
because
the
High Court which has heard the case certifies that it involves questions of
such moment that the Supreme Court itself must resolve them. To dispose
of such a m2Uer by a preliminary hearing is to i:ast n refiect!on on the High
Court's capacity to understand the seriousness of a certification. [109S D-E]
F
G
2. ~ritcle 136 vests a plenary discretion in the Supreme Court to deign
H
or decline to grant leave to appeaJ against any conviction or sentence. Before
deoiding to grant or reject such leave the court accords an oral hearing afttr
A
B
c
D
E
F
G
H
1086
SUPREME COURT REPORTS
[1979 J 2 s.c.a.
perusing all the papers produced. Once leave is granted, the appeal is heard,
after r.:oricc to the state, in full panoply.
.-\.U~r leave, the appeal is bom.
Then it ripens .into fullness and is disposed of when both sides are present.
No appeal after leave, is dismissed summarily or ex-parte. If Art. 136 gives
a discretionary power to grant leave to appeal or to dismiss in limine, after
an cx-parte hearing (or efter issue of notice if the court so chooses), Art. 134
which gives a constitutional right to appeal as it were, must stand
on a
higher footing lest the Constitution makers be held to have essayed in super·
ercgation. [1095G-1096A]
3. There is much more 'hearing' content in an absolute
appeliate
right
than in a precarious 'special leave' motion. Jurisprudentially, a right is larger
than a permission. Art 134 puts the momentous class of
cases covered
by
it beyond the discretionary compass of Art. 136 and within the
compulsory
area of full hearing such as would follow upon leave being granted unde1
Art. 135(1). A full hearing may not obligJle Jragging the opposite side to
court involving expense and delay. Fullness of hearing of the
proponent
is
not incompatible with non·hearing of the opponent when after
appreciating
all that could be urged in support of the cause there is no need felt to call
upon the other side, as where the proposition is groundless, frivolous or not
prima facie statable.
[1096B·D]
4. Article 134(2) empowers Parliament tO ·expand the jurisdiction of
the
Supreme Court to entertajn criminal appeals. In exercise
of
this
power,
Parliament enacted the Supreme Court (Enlargement of Criminal Appellate
Jurisdiction) Act, 1970 in its grave concern for long
incarceration
being
subject to great scrutiny at the highest level if first inflicted, by
the High
Court. A right of appeal to the Supreme Court was granted when the High
Court has, for the first time sentenced an accused to life imprisonment or to
a term of or above ten years of rigorous imprisonment and equated it with
that granted under Art. 134(1)(a) and (b). ft097G-·1098D]
5. The n<'rlure of the appeal
process cannot be
cast
in a rigid
mould
as it varies with jurisdiction and systems
of
jurisprudence. Whatever the
protean forms the appellate process may take, the goal is justice so that a
disgruntle<l litigant cannot convert his right of appeal into breaking down the
court system by sufferance of interminable submission after several tribunal9
have screened his case and found it fruitless. The signification of the right
of appeal under Aft. 134 is a part of the procedure established by law for
the protection of life and personal liberty. Nothing which will
render
this
right illusory or its fortune chancy can square wjth the mandate of Art. 21.
[llOOH--llOlA, !102F. 11030, 1104H-1105AJ
6. When the High Court trying a case sentences a man to death a higher
court must examine the merits to satisfy that human life shall not be haltered
without an appellnte review. A single right of appeal is more or less
a
universal requirement of the guarantee of life and liberty rooted in the con·
ception that men are fallible, that Judges are men and that making assurance
doubly sure before irrevocable deprivation of life or liberty comes to pass, e
fu11·scale re·examination of the facts and the law is made an integral part of
fundaCi1eniaJ fairness o_r procedure. [1105C, E]
7. The life of the law is not perfection of theory but realisation of justice
in the roncrete situation of a given system. It is common knowledge that
,
(_
SITA RAM V. U.l'. STATE
108 7
;a jail appeal or an appeal filed through an advocate does not
contain an
.exhaustive accompaniment of all the evjdentiary material or record of proceed ..
ings lttying bare legal er!ors in the judicial steps. It is not unusual that a
·-fatal flaw has been discovered by the appellate judges leading to
a
total
. .acquittal. Such a high jurisdiction tl.s is vested by Art. 134 calls for an active
cexan1ination by the judges and such a process will be an ineffectual essay in
;the absence of the whole record.
A preliminary hearing is hardly of any
'USC bearing in n1ind that whtlt is being dealt with is an affirmation of death
sentence for the first tin1e. Section 366 of the Code requires the Court of
·Session which passes a sentence of death to submit the proceedings to
the
·High Court and rulings insist on an independent appellate consideration of
the n1attcr and. an eAamination of all relevant nrnterial evidence. The Supreme
·Court's position is analogous, and independent examination of
n1aterials is
impossible whhout the entire records being available.
So
il
is
rrasonable
-that before hearing the appeal under Rule 15(1)(c) of Order XXl, ordinarily
the records are sent for and are available.
Counsel's
assistance apart,
the
ccuri itself must apply its mind, the stakes being grave enough.
llio.t·F--1106BJ
8. The recording of reasons is usually regarded as a necessary requirement
··Of fair decision. ·The obligatiofl to give reasons for decision ¥then consequence
·of wrong Judgment is forfeiture of life or personal liberty for long periods
B
c
needs no emphasis, especially when it is a first appeal following upon a heavy
D
·sentence imposed for the first time. The constn~int to record reasons secures
in black and white what the Judge has in mind and gives satisfaction to him
who is condemned that what he has had to say has not only been 'heard' but
·considered and recorded. Art. 21 is a bindng. n1andate against blind justice.
In the narrow
categories of cases covered by Art. 134(l)(a) and (b) and
·s. 2(a) of the Enlargement Act, the subject matter is of sufficient g1tl'Vity as to
justify the recording of reasons in the ultimate order. [l160E-·G, I 106HE
1107 A]
9. Protection at the third deck by calling for the records or launching on
long rati6cination is a waste of judicial time.
Our Rules of Criminal Procedure provide for dismissal at the third level without assigning written reasons,
·not beoa'llse there are no reasons, but because the tardy need to
document
,jll>
·them hampers the hearing of the n1any cas,;:5 in the queuC' lhat press upon the
It"'
·time of the court at that. level.
[1107F]
,
10. Order XXI, Rule 15(1) (c) of the Rules in an enabling provision not
a compulsive
one.
Haimonious
construction
of
Art. 134
and Art. 145
'leads to the. conclusion that the contemplated rules are mere machinery provisions. The sequence is simple. The fonnal~tlCS for entertaining certain types
·of appeal are covered by Art. 145(l)(d) the manner of hearing and disposal
is governed by Art. 145(1)(b) and the substantive sweep of the appeal as
a
G
method of redressal is found in Art. 134.
[I !070-H, ll08D, 1109Al
11. It is daily experience to see judges on the high bench differ.
and
a
-fortiori so in the field of sentence. This r<."ality is projected in the context
of full freedom for the first appe1tate decider of facts to reach his own finding
·On offence and sentence, only to highlight how momentous it is--for
the
appellant to have his case considered by the highest court when the Constitu-
.11
tion and Parliament have conferred a full right of appeal. Summary
disnli~sal, save in glaring cases, may spell gra.ve jco1'ardy to
life~gi\'ing just!('(,
13-l 19SCI/79
. . A
B
c
D
E
F
1088
SUPREME COURT REPORTS
[1979] 2 S.C.R·
That is why Order XX! Rule 15(1) (c) while it survives to weed out worthless appeals, shall remain sheathed in extra-ordinary cases where
facts on,
guilt or the ~'ider range of considerations on sentence are involved. [11090l !IOB]
12. Rule 15(1)(c) of Order XX! is general and covers
all conceivable·
OOses under Art. 134(1). It operates in certain situations, not in every appeal.
It merely removes an apprehended disability of the court in summarily dismissing a glaring case where its compulsive continuance, dragging the opposite
party, calling up prolix records and expanding on the reasons for the decision,
will stall the work of the court (which is an institutional injury
to
social
justice) wi1h no gain to anyone, including lhe appellant to keep
\Vhom
in
agcnising suspense for long is itself an injusitce.
]11110.D[
13. If every appeal under Art. !34(l)(a) and (b) or s. 2(a)
of
the
Jinlargemcnt Act, where questions of law or fact are raised, is set down for
preliminary hearing and summary disposal, the meaningful difference between
Art. 134 'and Art. 136 may be judicially eroded and Parliament stultified.
The minimum processual price of deprivation of· precious life or prolonged
loss of liLeHy is a single comprehensive appco!.
To be peevel by this need
is to <.•ft'end against the fa·ir play of the Constitution. [111lfl--lll2B]
14. llpholding the vires of Order XX! Ruic 15(1)(c) of the Supremo Court
Rules and also s. 384 of the Criminal Procedure Code the majority however
held that in their application both the provisions shall be reStricted by the
criteria set out hereunder tis a permissible exercise in constitutionalisation of
the provisions. fll 12H]
15. Order XX! Rules 15(1)(c) in action does not mean that all appeals
falling within
its
fold shall
be , routinely disposed of. Such a course
obliterates the difference between Articles 134 and 136, between right
and
leave. The rule in cases of appeals under Art. 134(1)(a)
Qnd
(b)
and
s. 2(a) is notice, records and reasons, but the exception is preliminary hearing
on all such materials as may be placed by the appellant iand brief grounds for
dismissaJ.
This
exceptional
category
is
where, in all conscience, there is -4/,
no point at all. Jn cases of real doubt the benefit of doubt
goes
to
the
appellant and notice goes to the adversary even if the chances of allowance
o.f tile appeal be not bright. [113A-C]
--t'
[With a view to invest clarity and avoid
ambiguity,
Order XXI
Rule
15(1)(c) may be suitably modified.]
G
Maneka Gandhi v. Union of India, (1978] I SCC 248; Presidential Ref.
No. 1 of 1978 [1979] 2 SCR 476; Wiseman v. Barneman, [1971] AC 297; Russel
v. Duke of Norfolk. [1949] I All. ER 109; Ponnamma v. Arumogam, [1905]AC
at p. 390; Colonial Sugar Refining Co. v. Irving, [1905] AC 369; Newman v.
Klausner, [1922] I KB 228; referred to.
'
Black's Law Dictionary 4th Edn. p. 1368, Stroud's
Judicial
Dictionary.
41
H
3rd Edn. Vol. I, pp. 160-161; Current Legal Problems 1958 Vol. II p. 194,
Lav1 Quarterly Review Vol. 71, 1955 p. 410-1 L "fh0 Judicial Process by Henry
J. Abra.J:iam. 1962 pp. 159-160; referred to.
•
..
•
SITA RAM V. U.P. STATE
1089
Per Kailasam & Koslw.l, JI. (dissenting)
A
1. Article 145 of the Constitution empowers the Supreme Court subje'ct
to the provisions of any law made by Parliament with the approval of the
President to make rules from time to time for regula.ting generaJly the practice and vrocedure of the court. [1116Bl
2. Article 134 confers appellate jurisdiction on the
Supreme
\::ourt inc
regard to criminal matters, and while an unrestricted right of appeal is provid-
, B
cd to the Suprome Court under clauses (a) and (b) an appeal nnder suDclause (c) is provided only when the case is certified by the High Court as
a fit one for appeal. Further, an appeal under sub-clause (c) shall lie subject
to such provisions as may b, made in that behalf under clause (!) of Art. 145
and to such conditions as the High Court rnay establish or require,
[1 l16DJ l 17B]
3. The Supreme Court (Enlargement of Criminal Appellate Jurisdiction)
Act, 1970 has conferred on the Supreme Court further power to entertain and
hear appeals than conferred on it under Art. 134(1)(a) and (b) as provided
for in Art. 134(2) of the Constitution. [!117C]
4. Article 145(1) (b) enables tlie Supreme Court to frame rules
as
to
prcredure for hearing appeals. Rule 15 of Order XXI provides for the procedure for hearing appeals and is valid so far as to the procedure of hearing
appeals. [1117D-E, 1118C]
5. While s. 374 confers a right of appeal, s. 375 and s. 376 restrict such
a right. Section 384 prescribes the procedure for hearing appeals enabling
the court to dismiss certain appeals summarily and to deal with others under
s. 385 if they are not summarily dismissed. The right of appeal conferred can
be curtailed by procedure as envisaged in s. 384 Cr.P.C. or Rule 15 Order XXI
c
D
(lf the Supreme Court Rules. [1120D]
E
6. An Oppeal to the Supreme Court under s. 374 Cr.P.C. is restricted by
the provisions of s. 375 and s. 376 and could be dealt with summarily under
s. 384 Cr. P.C. An appeal to the Supreme Court is subject to
the severai
provisions of the Cr. P.C. including· the provisions relating to summary dis·
.
po,aJ of 1he appeals. [1120E-F, GJ
~~-
7. The powers and the jurisdiction of the appellate court as prescribe:a by
the Criminal Procedure Code and the rule Clannot be said to deny a right of
hearing to the appellant. The right to be heard in an appeal is regulated h¥
statute. After a full trial the judgment is rendered by a High_ Judicial Officer
such as a Sessions Judge or a High Court Judge. The appellate court has
before it the Judgment of the lower court and the petition for appeal. At the
preliminary hearing the appellant or his pleader is heard before the
court
decides to dismiss the appeal summarily. The power to summarily dismiss
an appeal is conferred under the Criminal Procedure Code. when the cour_t is
satisfied that there are no sufficient grounds for interfering with the judgment
appealed against. This decision is taken by the appellate court being the
Chief Judicial Magistrate, Court of Sessions, the High Court or ~be Supreme
Court. In Jht: case of the Chief Judicial Magi:-1trate and Court of Sessions,
reasnns should be recorded for summary dismissal. The lfigh Court and the
Supreme Court need not record reasons for summarily dismissing the app:al. It is
necessary that the Supreme Court or the High Court should be satisfied that there
are net sufficient ground for interfering. The conclusion is arrived at after heflrF
G
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•A
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1090
SUPREME COURT REPORTS
[1979] 2 s.c.R.
ing the ll.ppelJant, examining the judgment and the
petition for appeal. The
appellate court is discharging an onerous duty in dismissing a case summarily.
The Code provides for calling for the records before disn1issing
an
appeal.
In cases where an appeUunt is sentenced to death, in1prisonment for life or
long tenn of imprisonment, it is the bounden duty of the appellate court to
hear the appellant, examine the petition of appeal and copy of the judgment
~ppealed agair1st. 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 not 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 ln'fe no sufficient grounds for
interfering.
Equally it is the duty of the appellate court to dismiss the appeal summarily
if it is satisfied that there are no sufficient grounds for interfering. This duty
is imposed for regulating the work of the courts for otherwise judicial tin1e
y,culd he unnecessarily spent. Taking into account the f:tct that the duty to
decide the question where_ there are no sa:fficient grounds for interfering is }-
plac~d on highly placed judicial officers after affording a due hearing, it cannot he stated that the very right of appeal has been ta-ken a\vay.
[1122E~F,
1122H---1123F;
. .-
8. Th~ procedure contemplated in Rules 13, 14 and 15 of the Supreme
Court Rules are almost similar to the provisions of the Code of
Criminal
Procedure relating to appeal. In an appeal sent by the appellant from jail
he is entitled to send any written arguments which he may desire to advance
in· support of his appeal. ·The Court in proper cases in which it coo.siders 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 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 l.i~ing
the highest court is not required to give reasons but is expected to bestow the
greatest . c~re in exercising the power of sum1nary dismissal
under
Rule 15.
[ 1124G--ll 25 A]
P. K. Mittra v. State of West Bengal, [1959] Suppl. I SCR 63; Shankar
Krrba Yadhav
v.
State of Maharashtra,
[1970] 2 SC:R 227; Minakshi -~-~
Subramanya, 14 IA .168; Govinda Kadtuji Kadam v. State of Maharashtra,
[1970] 1 sec 469; referred to.
Maneka Gandhi v. Union of India, [1978] 2 SCR 621; distinguished.
CRIMINAL APPEL LA TE JURISDICTION : Criminal Appeal No. 264
of 1978.
Appeal from the Judgment and Order dated 31-3-1978 of the
Allahabad High Court in Criminal Appeal No. 597 /76.
A. N. Mulla and S. K. Jain for the Appellant.
O. P. Rana for the Respondent.
..,
'
'
u
The Judgment of V. R. Krishna Iyer, P. N. Shinghal and D. A.
Desai JJ. was delivered by Krishna Iyer, J.
P. S. Kailasam, J. gave
a di~scnting opinion on behalf of himself and A. D. Koshal, J.
•
'
•
,
•
SITA RAM v. U.P. STATE (Krishna Iyer, !.)
1091
KRISHNA IYER, J.-Exordially speaking, the point for decision
is short but its legal import and human portent are deep, sounding
in constitutional values and meriting incisiv'e examination.
Where
the question wears a simple look but its answer strikes at life and
liberty we must proceed on the inarticulate major premise of human
law as the solemn delivery system of human justice.
In formal
terms, the problem to be resolved is the vires of Order XXI, Rt.le
15(1)(c) of the Supreme Court Rules (the Rules, for short), but
in juristic terms it turns on the inflexible stages as against its
( facultative facets of an appellate hearing when it is a first appeal
_ ~ 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
B
c
-+-
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 ex parte 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
D
•
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 'ense on the surface and another in the deeper layers.
But
when the consequences of the construction can be calamitous and
r the subjec1-nrntter involv'es 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 \)le ends of justice
the means of law mnst serve. The heart and the bead interact and
interpret.
A thumb-nail sketch of the sequence of facts may be necessary
E
to get a hang of the constitutional core of the case. Several persons,
including the appellants, were accused of murder and other violent
offences but were acquitted by the Sessions Judge.
The State cnrG
ried an appeal to the High Comt against the acquittal of all the 18
accused persons.
In an elaborate judgment the High Court found
the case of the prosecution proved although it confirmed the acquittal
of quite a few.
The convicted accused, 12 in number, were awarded
life imprisonment under s. 302 read withs. 149, l.P.C. and lesser terms
of imprisonment for other offences.
Thereupon .the convicted appolH
!ants preferred an appeal to this Court under s. 2(a) of the Supreme
Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970,
A
B
c
D
E
G
H
1092
SUPREME COURT REPORTS
(1979) 2 S.C. R
(for short the Enlargement Act).
This appeal was listed for preliminary hearing ex parte under Rule 15 (1) (c) of the Rules
(as
amended in 1978). When the case was opened at the preliminarv
hearing counsel for the appellants contended that, as an inalienabl~
incident of a statutory appeal, his clients were entitled to a fullfiedged hearing after notice to the State and not an ·abbreviated disposal in the shape of a preliminary hearing,
however
long
that
hearing might be.
Thereupon, the court passed the following
order :
"The appellants
have
challenged
the
constitutional
validity of clause (c) of
sub-rule (1)
of rule 15
of
prder 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
0efo~e. the Court for admission.
In· that view ~f 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."
This Bench has come to be seized of the case in the constitutional
setting.
Such is the scenario, the last and most crucial
stage
of
which is the hearing before this Constitution Bench.
A little elucidation of the legal matrix which has given rise to
-Oil
the contentions may be useful.
This Court ha~ jurisdiction over a
wide range and long reach of litigation 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 selfimposed limitations rarely realised by the gambling litigant and has
hardly any semblance of an absolute right of appeal necessarily followed by a full debate after notice to the adversary.
But a segment
of criminal cases, sta.nding 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 5"ntence, or has secured a certificate that his case is of such great moment
as to qualify for pronouncement by the Supreme Court, with a rightshall we say, a constitutional right-of appeal to this· Court.
Moreover, under clause (2) of this Article, Parliament may make law
.--··-
51TA RAM v. U.P. STATE (Krishna Iyer, J.)
1093
for conferring a statutory right of appeal on other classes of convicts.
Purouant to this power Parliament has enacted the Supreme Court
(Enlargement of Criminal Appellate Jurisdiction) Act, 1970, whereby persons acquitted by the trial court but awarded imprisonment
for life, or for ten
year~ and more, •enjoy a statutory right of
appeal.
The proviso to Article 134(1) enables this Court to make provisions subject to whic\l appeals under sub-clause ( c) of Article 134
shall lie.
These provisions are to be made under clause. (1 )(d) of
Alticle 145 which, in specific terms, deals with rules as to the entertainment of appeals under sub-clause ( c) of clause ( 1) of Article
134.
We are not concerned with these rules which relate to the
-----..c,,,.n~cc~1~ca.,.,.1"'."""'.'-~£.-.i\~ or provisions subject to which the. appeal
may be mstituted and 'dolroh,.-w;llfil'on the right of appeal or the
manner of hearing .. But Article 145(171.l>)--'°"~- th1_ Supreme
Court to make rules, mter alta, as to the procedure for hearing app-1 •. _
One such rule is Order XXI Rule 15 which warrants preliminary
hearing and disposal of all categories of appeals covered by Article
134(2). The fate of the present appeal hun,g in the balance at such
a preliminary hearing and counsel challenged the vires of the rule
.itself.
In its wake has come the present hearing.
A
B
c
D
This sets the stage for a more comprehensive approach to the
constitutional problems arising in the case.
We must make it clear
E
that we are not concerned with the merits of the appeal at all but are
confmed to a consideration of the validity of the impugned rule. If
» - we hold that the said rule is ultra vires and further hold that there
-shall be a regular, full-dress hearing of the appeal
a preliminary
hearing will be obviated and notice in the appeal will have. to go to
the State.
It requires to be specifically mentioned, although there
is no hint about its advertence at the earlier preliminary hearing that
the Criminal Procedure Code, 1973 has a fasciculus of provisions
•elating to appeals, the manner of their hearing and the procedure
for their disposal, which. is comprehensive enough to cover the present category embraced by Order XXI Rule 15(1)(c). Therefore,
the effect of the Sections in the Code bearing on the issue under discussion may also have to be studied before. we finally pronounce on the
legality of a preliminary hearing in a criminal appeal filed in exercise of
.a constitutional or statutory right.
F
G
Our consideration falls into two chapters as it were, the first and
more important turning on the constitutional · prov1s10ns
vis-a-vis
H
-Order XXI Rule 15 ( 1 )( c) and the second turning on the construction and impact of s. 384, Cr.P.C.
Taking up the
constitutional
A
B
c
1094
SUPREME COURT REPORTS
(1979] 2 S.C.R: •.
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 jurisdictiott
on this Court :
134. Appellate jurisdiction of Supreme Court in regard
to criminal matters.-
( I) 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 ,WP'"' or acquittal of an
accused _p14sonAmd seb!enccd him to death; or
_
0
_ .,,, .-o·~-------tnr'nas.withdrawn for trial before itself any case from
D
II
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-claus·e (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
Jaw confer on
the Supreme
Court any further powers to entertain and
hear
appeals
from any judgment, final order or 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.
No argument is needed to realise the gravity of the subject covered by the first two clauses of the artic'Je--Oeath sentence for the first
time or in reversal of an acquittal.
Human life is too dear to be
deprived of by a death sentence without so much as a single appeal
after its award.
Our founding faith in human rights is
the
only
warrant for the entrustment of this appellate jurisdiction on the Supreme Court which is far removed from the trial court and is intercepted by the Higl1 Court, an elevated tribunal manned by judges of
proven calibre.
The symbolic meaning is obvious.
Life is no matter
for easy despatch even by the judicial process and a serious second
).
SITA RAM v. U.P. STATE (Krishna Iyer, .T.)
1095
look is the minimum that the State owes to the citizen before bis
gallowed farewell.
To truncate the fullness of
appellate
scrutiny
into ex parte disposals despite the deliberate insertion by the framers
of the Constitution of an express provision, by a procedural knife,
may often frustrate their profound concern.
Judicial professionalism,
at higher level, is particularly conscientious and careful; but all professionalism suffers, by custom, from scelerosis in practice. And so,
full-scale hearing in a first appeal is the fair insistence of the Constitution when the risk is to precious life.
A
B
~
We are aware that the disposal of appeals involving death penalty
receives anxious concern and deep reflection on the part of judges.
We are conscious that the grave stakes jQJ;Pid-j.+.J~f~i•rni.,ing-·-,;------
~-1¥ithout."'afafyinJ! . .lh~against error. But human limitations, perfunctoriness of counsel, oversight of some material hardly
highlighted in the judgment under appeal and the misfortune that ex
parte examination dulls attention while debate at the bar sparks mental
;,..-
plugs-these too are realities.
Likewise, Art. 134 ( 1) ( c) spells a measure of seriousness because the High Court which has heard the case certifies solemnly that
it involves questions of such moment that the Supreme Court itself
must resolve them.
To dispose of such a matter by a preliminary
hearing 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 (I) .
136. Special leave to appeal by the Supreme Court--
(!) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion grant special leave
to appeal from any judgment, decree, dekrmination,
sentence or order in any cause or matter passed or
;made by any court or tribunal in the territory of
India.
D
E
F
A plenary discretion vests. in the Supreme Court to deign or
G
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
H
summarily or ex parte.
The relevance of Art. 136 in an examination
of Art. 134 is this.
If Art. 136 gives a discretionary power to gram
A
8
1096
SUPREME COURT REPORTS
[I 979] 2 S.C.R.
leave to appeal or to dismiss in lirnine, after an ex parte hearing; (or
after issue of notice if the court so chooses), Art. 134, which gives a
constitutional right to appeal, as it were, must stand on a higher footing
lest the Constitution-makers be held to have essayed ir. shpererogation. Surely, there is much more 'hearing' content in an absolute
appellate right
than in a precarious 'special leave' motion.
Jurisprudentially, a right is larger than a permission.
What is irresistible
is that Art. 134 puts the momentous class of cases covered by it
beyond the discretionary compass of Art. 136 and within the compulsory area of full hearing such as would follow upon kave being
granted under Art. 136(1). But this is not the end of the journey .
. C
For, a full hearing may not obligate dragging the opposite
side
to
court involving ·expense a!1d. delay,
FuT!nei;s of hearing of the proponent is not incompatible with non-hegii11g of th<> .OJlPoll""~--...-11~r1r · ·
after appreciating all that could be urged in _support of the cause there
D
E
F
G
"
is no need felt to call upon the other side, as where the proposition
is groundless, frivolous or not prirna facie
statable. The ambit of
appellate hearing may have to be explored in the constitutional context to which we will advert later.
The next step necessitates setting out, as an integral part of the
comprehensive picture, Art. 145 :
145. Rules of Court. etc.-
(1) Subject to the provisions of any law made by Parliament, the Supreme Court may from time to time, with
the approval of tl1e President, make rules
for
regulating
generally the practice and procedure of the Court including :
(a)
(b)
(c)
(cc)
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;
(d) rules as to the entertainment of appeals under s11h
clause (c) of clause ( 1) of article f.'.l4"
(e)
(f)
(g)
•
•
SITA RAM v. U.P. STATE (Krishna Iyer, J.)
I 097
(h)
(i) rules providing for the summary determination of
appeal which appears to the Court to be frivolous
or vexatious or brought for the purpose of delay;
(j) ........
A
This Court has framed rules under this article. The pertinent rule,
B
which is impugned as ultra vires is Order XXI Rule 15 ( 1 )( c) which
may usefully be read here :
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
C
for hearing ex parte before the Court which may either dis- .• -·--·~
miss it summarily or direct issue of notice to .Ji].1-r"•''".srrf:f
parties or may make such orders, as_~msfances of the
case may require, namell,._:.-<'.-
..---·
·"
(a) .... ·--
(!.) ....•..•
(c) an appeal under sub-clause (a) or suh-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 fife
<Jf an appeal even under Article 134 by dismissing it ex-parte, summarily.
Is this abbreviatory power
absouent with the appellate
scheme envisaged iu Art. 134 and, therefore, 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 tl1e main crux of
the debate.
D
E
F
It would be noticed that Art. 134 (2) empowers
Parliament to
G
expand the jurisdiction of the Supreme Court to entertain criminal
appeals.
Parliament, in exercise of this power, enacted the Snpreme
Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970
(for short, the Enlargement Act).
The relevant section (sec. 2)
;;tates :
2. Enlarged appellate jurisdiction of Supreme Court in
regard to criminal malters.-Without prejudice to the powers
•
H
A
B
c
D
E
F
G
H
1098
SUPREME COURT REPORTS
(1979] 2 S.C.Rconferred on the. Supreme Court by clause (1) of Act 134
of the Constitution, 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
~ndia if the High Court-
{a) has on appeal reversed an order of acquittal of an
accused person and sentenced him to imprisonment
for life or to imprisonment for a period of not less
than ten years;
(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 imprisonment for life or to imprisonment for _a
m:tiod. of not less than ten years.
Thus a right to appeal ro t))eSupremc Court is given to convicts
whom the High Court has, for the -n.....tiip.e sentenced to life imprisonment or to a term of or above ten years 'ot ••$1Jous imprisonment.
There is no doubt that Parliament, in its grave concefin~~·ncar
ceration being subject to great scrutiny at the highest level
inflicted by the High Court, granted a right of appeal in such cases
<~
and equated it with that granted under Art. 134 (1) (a) and (b). So
~-
what applies to death sentence cases applies to life term cases too
and this must be borne in mind in the interpretative process.
This
emphatic import is clear once we excerpt the relevant part of the
Objects and Reasons :
"Wliile sub-clauses (a) and (b) of Art. 134(1) of the
Constitution confer upon the accused an absolute right of
appeal, clause ( c) confers upon the High Court a discretion
to grJnt a certificate to the accused to appeal in cases not falljng under sub-clauses (a) and (b).
The grant of certificate under Art. 134 ( 1) ( c) is not a matter of course.
The certificate is granted only where there has
been
an
infringement of the essential principles of justice or there
is substantial question of law or principle involved; in
short the certificate would not be granted unless there are·
exceptional and special circumstances. The Supreme Court
has also held that the conditions pre-requisite for the
exercise of the discretionary power to grant .a certificate
under Art. 134 (I) ( 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.
•
•!
·'
•
•
t
....
SITA RAM v. U.P. STATE (Kris/ioa Iyer, J.)
1099
An accused person has no absolute right of appeai even
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 sp~cial 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
A
B
(b) of clause (2) of the Bill."
C
What is created is an unconditional right of appeal, nothing less and
wider than is enjoyed under Art. 136.
We have stated at the.