Ram Pratap Singh Rathore vs The State Of Jharkhand Through Its ...
2022 Latest Caselaw 5148 Jhar

            IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         W.P.(C) No. 5438 of 2012
     Ram Pratap Singh Rathore                                       --- --- Petitioner
                                      Versus
     1.The State of Jharkhand through its Chief Secretary, Dhurwa, Ranchi
     2.The High Court of Jharkhand through its Registrar General, Ranchi
                                                                 --- --- Respondents
                                      With
                         W.P.(C) No. 360 of 2013
     1.Gorka Paswan
     2.Jamun Paswan
     3.Jitendra Paswan
     4.Tumpa Paswan
     5.Pampu Paswan
     6.Rampu Paswan
     7.Sukhdeo Paswan
     8.Sangma Paswan                                        --- --- Petitioners
                                      Versus
     1.The State of Jharkhand through its Chief Secretary, Dhurwa, Ranchi
     2.The High Court of Jharkhand through its Registrar General, Ranchi
                                                                 --- --- Respondents
                                      With
                         W.P.(C) No. 667 of 2013
     Aradhana Singh                                         --- --- Petitioner
                                      Versus
     1.The State of Jharkhand through its Chief Secretary, Dhurwa, Ranchi
     2.The High Court of Jharkhand through its Registrar General, Ranchi
                                                                 --- --- Respondents
                                      With
                         W.P.(C) No. 1115 of 2013
     Durga Prasad                                           --- --- Petitioner
                                      Versus
     1.The State of Jharkhand through its Chief Secretary, Dhurwa, Ranchi
     2.The High Court of Jharkhand through its Registrar General, Ranchi
                                                                 --- --- Respondents
                                    .......

CORAM: HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE DEEPAK ROSHAN For the Petitioners : M/s Indrajit Sinha, Arpan Mishra, Advocates [W.P.(C) No.5438/2012, W.P.(C) No.667/2013] : M/s Radha Krishna Gupta, Pinky Shaw, Advocate [W.P.(C) No. 360/2013] : Mr. Rohit Ranjan Sinha, Advocate [W.P.(C) No. 1115/2013] For the Respondent : Mr. P.A.S. Pati, G.A.-II : Mr. Gaurang Jajodia, A.C to G.P.-II

05/20.12.2022 In all these writ petitions the vires of Rule 159 of the Jharkhand High Court Rules, 2001 has been challenged on the ground that they are ultra vires to the provisions of Section 397 and 477 of the Code of Criminal Procedure Code, 1973.

Learned counsel for the petitioners and the State both submit that the very issue relating to requirement of surrender of the accused before

filing of criminal revision application, as per Rule 159 of the Jharkhand High Court Rules, 2001 was considered and decided by the Hon'ble Supreme Court in the case of Vivek Rai & another Vrs. High Court of Jharkhand through Registrar General & others reported in (2015) 12 SCC 86. The Apex Court has inter alia held as under:

6. We do not find any merit in the challenge to the validity of the Rule. 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 the 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.

7. A similar provision exists in the Supreme Court Rules, 1966. In K.M. Nanavti vs. State of Bombay this Court considered the scope and effect of identical provision of Order 21 Rule 6 of the Supreme Court Rules, then applicable, which read as follows: (AIR p. 120, Para 14) "14.......Where the petitioner has been sentenced to a term of imprisonment, the petition shall state whether the petitioner has surrendered. Unless the court otherwise orders, the petition shall not be posted for hearing until the petitioner has surrendered to his sentence". It was observed that the Rule only crystallised the pre-existing practice of this Court and the High Courts. Further, question considered was whether the Rule violated Article 161 of the Constitution 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. This Court held that power of the Governor could not regulate procedure of the Court and if the case was to be heard by this Court, unless this Court granted exemption, the Rule prevailed. We are not concerned with the said question in the present case. Relevant observations in the said judgment are : (K.M. Nanavati Case, AIR p.120 , para 14) "14. .... This Rule was, in terms, introduced into the Supreme Court Rules last year and it only crystallized the pre-existing practice of this court, which is also the practice in the High Courts. That practice is based on the very sound principle which was recognised long ago by the Full Bench of the High Court of Judicature, North Western Provinces, in 1870, in R. v. Bisheshar Pershad. In that case no order of conviction had been passed. Only a warrant had been issued against the accused and as the warrant had been returned unserved a proclamation had been issued and attachment of the property of the accused had been ordered, with a view to compelling him to surrender. The validity of the warrant had been challenged before the High Court. The High Court refused to entertain his petition until he had surrendered because he was deemed to be in contempt of a lawfully constituted authority. The accused person in pursuance of the order of the High Court surrendered

and after he had surrendered, the matter was dealt with by the High Court on its merits. But as observed above the Rules framed under Article 145 are only in aid of the powers of this court under Article 142 and the main question that falls for consideration is, whether the order of suspension passed by the Governor under Article 161 could operate when this court had been moved for granting special leave to appeal from the judgment and order of the High Court. As soon as the petitioner put in a petition for special leave to appeal the matter became sub judice in this court. This Court under its Rules could insist upon the petitioner surrendering to his sentence as a condition precedent to his being heard by this Court, though this Court could dispense with and in a proper case could exempt him from the operation of that rule. It is not disputed that this court has the power to stay the execution of the sentence and to grant bail pending the disposal of the application for special leave to appeal. Rule 28 of Order 21 of the Rules does not cover that period, but even so the power of the court under Article 142 of the Constitution to make such order as is necessary for doing complete justice in this case was not disputed and it would be open to this Court even while an application for special leave is pending to grant bail under the powers it has under Article 142 to pass any order in any matter which is necessary for doing complete justice."

Learned counsel for the petitioners therefore submits that the writ petitions have become infructuous.

In view of the specific pronouncement by the Apex Court, the challenge to the vires of Rule 159 of the Jharkhand High Court Rules, 2001 becomes redundant.

Accordingly, all the writ petitions are disposed of as infructuous. Pending I.A.s in respective writ petitions are closed.

(Aparesh Kumar Singh, A.C.J.)

(Deepak Roshan, J.) A.Mohanty