Power of High Court to Waive off any need to Surrender for filing Revision

Vivek Rai & Anr. v. High Court of Jharkhand

Facts: 

Petitioners have been convicted under Section 498-A of the IPC and Sections 3 and 4 of the Dowry Prohibition Act. Appeal against the conviction was dismissed. The petitioners filed a revision petition before the High Court but the same was not registered on account of impugned Rule 159 of the Jharkhand High Court as failed to surrender to custody.

Rule 159 of the High Court of Jharkand Rules, 2001 reads:

““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 (emphasis).”

The petition has been filed under Article 32 of the Constitution of India seeking to declare Rule 159 as violative of Articles 14 and 21 of the Constitution and provisions of Sections 397 and 401 of the Code of Criminal Procedure, 1973. Earlier the Division Bench of the Jharkhand High Court has upheld the validity of the Rule and the special leave petition was dismissed by the Court against the said judgment.

Issues:

• Whether the requirement for surrendering to custody as a condition precedent for registration of the Revision petition is violative of Sections 397 and 401 of CrPC?
• Whether the failure to mention the power of the High court to order exemption from such surrender makes it legally infirm?

Brief Answer:

•  No. The rules are in consonance with the CrPC provisions.
• No. Failure to mention does not take away the inherent power of the High Court and the same has to be assumed in the impugned rule.

Court’s reasoning:

•  It is an established practise that a revision against Conviction and sentence is filed after an appeal is dismissed and the convicted person is taken into custody in court itself. According to the Court, 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. They therefore hold that the provision is not arbitrary in nature and is merely a procedure to regulate the procedure of the Court. The Apex Court relied on Judgments including the Nanavati case[1] wherein the an identical provision of Order XXI Rule 5 of the Supreme Court Rules was challenged and held to be valid.  The Apex Court in that case had opined that the rule reflected the pre-existing practise of the Supreme Court and the High Courts. The provision read:

“When 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”

     Supreme Court Rules also contain a similar provision in Order XXI Rule 6. 

•      Mere exclusion of the exemption power does not affect the inherent power of the Court to order such a remedy. The Court stated the High Court is not helpless in such situations even though the Rule does not specify that it can grant exemption in certain cases. They hold that such an exception as also found in the Supreme Court Rules has to be read into the High Court Rules.

Analysis:

While the reasoning of the Court in the first issue is logical and is supported by appropriate case laws, the second issue has been dealt with in a single with broad statements. The challenge was to a specific Rule of the High Court which had been created in 2001 to the exclusion of such an exemption which is clearly provided in other High Court Rules as well as the Supreme Court. In such a scenario, it can be argued that the later in time creation had deliberately tried to negate any such usage. Although one might argue that the High Court under its inherent power[2] can consider the grant of such remedy, the question in this case was limited to the infirmity of the specific Rule of the High Court. The Rule did not include such a power and should have been considered in opposition to the current regime.

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[1] KM Nanavati v. State of Bombay, (1961) 1 SCR 297.

[2] Section 482, Code of Criminal Procedure, 1973.