High Court Rule requiring mandatory surrender before filing a Revision Petition upheld by Supreme Court

High Court Rule requiring mandatory surrender before filing a Revision Petition upheld by Supreme Court

A bench of Justices T.S.Thakur & Adarsh Kumar Goel today upheld the constitutional validity of Rule 159 of the High Court of Jharkhand Rules, 2001. The petition claimed that the impugned rule was violative of Articles 14 & 21 and Sections 397 & 401 of CrPC. A Division Bench of the High Court had earlier upheld the validity of the impugned rule and a Special Leave Petition preferred was also dismissed. So this petition was filed under Article 32.

The rule wits –

“In the case of revision under Sections 397 and 401 of the Code of Criminal Procedure, 1973 arising out of conviction and sentence of imprisonment, the petitioner shall state whether the petition shall be accompanied by a certified copy of the relevant order. If he has not surrendered the petition shall be accompanied by an application seeking leave to surrender within a specified period. On sufficient cause if shown, the Bench may grant such time and on such conditions as it thinks and proper. No such revision shall be posted for admission unless the petitioner has surrendered to custody in the concerned Court.

The petitioners were convicted u/s 498A IPC & Sec 3, 4 of Dowry Prohibition Act. The appeal filed against conviction and sentence was dismissed. The revision petition filed in the High Court was not registered as they had failed to surrender to custody. It was challenged by them that this rule is in conflict with the provisions of CrPC dealing with the statutory revisional jurisdiction of the High Court and even in a fit case, the High Court cannot consider the revision petition and grant bail unless a convicted person covered by the Rules surrenders to custody. It was submitted that the rule being a subordinate legislation could not militate against the substantive statutory provision. It was opposed by the respondent contending that the impugned rule has already been declared valid and due to dismissal of SLP against that DB judgment, the lis has attained finality thereof. It was also submitted that a similar provision is situated in Order XXI, Rule 6 of the Supreme Court Rules, 1966 {Now 2013 SC Rules have replaced the 1966 rules}.

In Para 4, the bench speaking through Justice Adarsh Kumar Goel observed

“…..It is well known practice that generally a revision against conviction and sentence is filed after an appeal is dismissed and the convicted person is taken into custody in Court itself. The object of the Rule is to ensure that a person who has been convicted by two courts obeys the law and does not abscond. The provision cannot thus be held to be arbitrary in any manner. The provision is to regulate the procedure of the Court and does not, in any manner, conflict with the substantive provisions of the Cr.P.C. relied upon by the petitioners. A similar provision exists in the Supreme Court Rules, 1966……….”

The bench placed reliance on K.M.Nanavti vs. State of Bombay [(1961) 1 SCR 497] & Mayuram Subramanian Srinivasan vs. C.B.I. [2006 (5) SCC 752] in which scope and effect of identical provisions in Order XXI Rule 5 & Order XXI Rules 6, 13A of the Supreme Court Rules, 1966 was dealt with. It was observed that Rule 5 only crystallized the pre-existing practice in SC and the High Courts. It was considered in Nannawati’s case that whether Rule 5 violated Article 161 which conferred power on Governor to suspend the sentence as in that case, the Governor had suspended the sentence but still the convict was required under the rule to surrender. The Supreme Court had held that power of the Governor could not regulate procedure of the Court and if the case was to be heard by SC, unless it granted exemption, the rule prevailed. In Mayuram’s case it was held that the provisions of Section 389 CrPC and that of the Supreme Court Rules, 1966 are independent provisions and will have to be considered on their own standing.

It was further made clear that the Rule does not affect the inherent power of the High Court to exempt the requirement of surrender in exceptional situations. The argument by petitioners thus, that prohibition against posting of a revision petition for admission applies even to a situation where on an application of the petitioner, on a case being made out, the Court, in exercise of its inherent power, considers it appropriate to grant exemption from surrender having regard to the nature and circumstances of a case is not correct. It was also observed that the exception as found in corresponding Supreme Court Rules that if the Court grants exemption from surrender and directs listing of a case and it cannot stand in the way of the Court’s exercise of such jurisdiction, has to be assumed in the impugned rule as well.

The judgment thus affirms a mandatory requirement of surrender to entertain a revision petition in criminal grievance redressal machinery. Similar provisions placed in rules formed by other High Courts also therefore get a sanction. It also makes it clear one more time that High Courts’ rule making power though is amenable to SC’s jurisdiction, yet if the particular provision is carefully drafted in line with prevalent SC Rule book, it shall stand judicial scrutiny.