Sandeep alias Kala vs Supreme Court of India

Disposing of the petition, the Court

HELD: 1.1 In Sita Ram, the constitutional validity of Rule 15(1)(c) of Order XXI of the 1966 Rules and Section 384 CrPC was called into question. Justice Krishna Iyer, speaking for a majority of three learned Judges of the Constitution Bench, upheld the validity of Rule 15(1)(c) of Order XXI of the 1966 Rules and of Section 384 of CrPC “by reading down their scope, substance and intendement”. After the decision of the Constitution Bench in Sita Ram, the provisions contained in Rule 15(1)(c) of Order XXI were deleted on 21 May 1981 by the Amendment Rules 1981. [Paras 19, 20, 28][481-F-H; 488-G]

1.2 The primary reason for deleting the provisions of Rule 15(1)(c) of Order XXI was that the sub-rule, as it was framed, envisaged that certain categories of appeals would be put up for hearing ex parte when it was open to the Court to either dismiss summarily or, as the case may be, direct the issuance of notice. In view of the decision of the Constitution Bench that the issuance of a notice must follow, the Full Court decided to delete Rule 15(1)(c) of Order XXI. The Full Court possibly contemplated that the judgment of the Constitution Bench in Sita Ram contained sufficient guidance in regard to the procedure to be followed in the case of appeals arising under Article 134(1)(a) or (b) or Section

2 of the Enlargement of Jurisdiction Act. The 1966 Rules have since given way to the 2013 Rules which were published in the Gazette of India on 29 May 2014 and came into force on 19 August 2014. Order XX contains provisions with respect to the procedure for preliminary hearing of certain categories of criminal appeals before this Court.Rule 5(1) of Order XX indicates the categories of appeals which, on being registered, shall be put up for hearing ex parte. The category of appeals specified in clauses (a), (b) and

(c) does not cover appeals falling under Article 134(1)(a) or (b) or Section 2 of the Enlargement of Jurisdiction Act. Hence and even otherwise as a matter of precept, the principles which have been laid down by the Constitution Bench in Sita Ram must govern the procedure to be followed while disposing of appeals under Article 134(1)(a) or (b) or Section 2 of the Enlargement of Jurisdiction Act. Ordinarily in all such appeals, notice must be issued. The issuance of notice would facilitate a proper examination by the Court of the dimensions of the appeal with the assistance of both the sides on whether the judgment of the High Court, which is the subject matter of the appeal, would warrant further consideration. While disposing of the appeal, it is only appropriate and proper that the Court must record reasons. The recording of reasons, in a matter where the accused has a constitutional or statutory right of appeal against the conviction, lends assurance to the judicial process. The liberty of the accused is fundamentally impacted by the outcome of the appeal. The recording of reasons lays confidence to the process that a statutory appeal which impinges upon the liberty of the accused has been considered judiciously. The insistence on recording of reasons emanates from the principles of natural justice and fairness in decision-making, which serve the precept that justice must not only be done, but must also appear to be done. [Paras 33-35][490E-H; 491-A, E-H; 492-A-B]

1.3 The decision of the Constitution Bench in Sita Ram has enunciated the following principles which it would be worthwhile to recapitulate:(i) An appeal falling within the ambit of Article 134(1)(a) or (b) or Section 2 of the Enlargement of Jurisdiction Act should ordinarily not be disposed of at a preliminary hearing without the issuance of notice to the opposite party and calling for the record;(ii) A hearing should be afforded in presence of both parties and with records on hand; and (iii) Reasons should be indicated while disposing of the appeal. [Para 36][492-B-D]

1.4 With the deletion of Rule 15(1)(c) of Order XXI of the 1966 Rules, appeals falling within the ambit of Article 134(1)(a) or (b) or under the Enlargement of Jurisdiction Act were specifically taken out of the purview of appeals which would be put up for ex parte hearing upon registration and which the Court may either dismiss summarily or direct the issuance of notice to the parties. The object and intendment of the deletion was to ensure that such appeals are not disposed of summarily ex parte without the issuance of a notice. The deletion must be so construed as to give effect to the fundamental postulate underlying the judgment of the Constitution Bench in Sita Ram. The deletion of a provision in the 2013 Rules akin to Rule 15(1)(c) of Order XXI of the 1966 Rules should not be interpreted to confer an uncharted discretion to dismiss an appeal of that description summarily at an ex parte hearing without the issuance of a notice. To the contrary, the deletion of the provision, as the material in the counter affidavit indicates, was in order to fulfil the mandate of the decision of the Constitution Bench. The principles propounded in Sita Ram continue to hold effect and guide preliminary hearing of certain categories of criminal appeals under Order XX, including Order XX, Rule 21 of the 2013 Rules. The principle enunciated by the Constitution Bench that reasons should be recorded while dismissing appeals falling within the ambit of the above provisions has not been introduced by way of an amendment to the Rules since it is expected that on the judicial side, the Court would follow the principles which have been enunciated by the Constitution Bench. [Para 37][492-E-H; 493A]

1.5 In the present case, the acquittal of the petitioner of the charge of committing offences punishable under Section 302 read with Section 34 of the IPC was reversed by the High Court and he was sentenced to suffer imprisonment for life. The appeal, under Section 2(a) of the Enlargement of Jurisdiction Act read with Section 379 CrPC, which was filed by the present petitioner was listed before this Court for a preliminary hearing on 5 May 2014 and was dismissed in limine. The judgment of this Court dismissing the appeal does not evidently furnish reasons. The difficulty in granting any relief to the petitioner in these proceedings is that an appeal having been dismissed on the judicial side and a review having been since dismissed against that judgment, it would not be open for this Court while exercising jurisdiction under Article 32 of the Constitution to issue any contrary direction. The petitioner would be at liberty to pursue the remedies available in law. The view taken by this Court would, it is hoped, set at rest the modalities to be followed while entertaining appeals under Article 134(1)(a) or (b) or Section 2 of the Enlargement of Jurisdiction Act. [Para 38][493-B-E] Sita Ram v State of Uttar Pradesh (1979) 2 SCC 656 : [1979] 2 SCR 1085 – followed.