2006 Supreme(SC) 550

2006(5) Supreme 596
SUPREME COURT OF INDIA
(From Special Court at Bombay)
Arijit Pasayat and Altamas Kabir, JJ.
Mayuram Subramanian Srinivasan — Appellant
versus
C.B.I. — Respondent
Criminal Appeal No. 685 of 2006
With
Criminal Appeal Nos. 687 of 2006 and 688 of 2006
Decided on 16-6-2006
Counsel for the Parties :
For the Appellant : Ms. Kamini Jaiswal, Mrs. Shomila Bakshi, Mrs. Rani, Advocates.

IMPORTANT POINT
Criminal Appeal in Supreme Court cannot be posted unless proof of surrender has been furnished by appellant who has been convicted.

Headnote:Supreme Court Rules, 1966 — Rule 13A Order XXI — Criminal Procedure Code, 1973 — Section 389(3) — Special Court (Trial of Offenders Relating to Transaction in Securities) Act, 1992 — Sections 9(4) and 10 — Appellants convicted by Special Court in Special Case — Application to suspend the sentence of appellant during pendency of appeal — Trial judge of Special Court had suspended substantive sentence against appellants for period of 10 weeks — Office report that appellants had not surrendered and in terms of Supreme Court Rules, 1966, Criminal Appeal could not be taken up — Question was whether accused who preferred criminal appeal though as a matter of right has to first surrender or seek exemption from surrendering? Yes — Criminal Appeal cannot be posted unless proof of surrender has been furnished by appellant who has been convicted — Requirement of Order XXI Rule 13A were mandatory in nature and have to be complied with except when an order is passed for exemption from surrender.

       Held : We are not concerned with the question whether Section 9 of the Act operates in a broader area than Section 389(3) of the Code. Question is whether the accused who prefers a Criminal Appeal though as a matter of right has to first surrender or seek exemption from surrendering. Order XXI Rule 13A of the Rules is relevant in this context. Order XXI deals with Special Leave Petitions in criminal proceedings and Criminal Appeals. Order XXI is a part of Part II of the Rules i.e. Appellate Jurisdiction. Sub part (A) relates to Civil Appeals whereas sub part (B) relates to Criminal Appeals. Rule 13 A of Order XXI reads as follows :

       "Where the appellant has been sentenced to a term of imprisonment, the petition of appeal shall state whether the appellant has surrendered. Where the appellant has not surrendered to the sentence, the appeal shall not be registered, unless the Court, on a written application for the purpose, orders to the contrary. Where the petition of appeal is accompanied by such an application, the application shall first be posted for hearing before the Court for orders."(Para 6)

       Order XXI relates to Special Leave Petitions in Criminal proceedings and Criminal Appeals. So far as Special Leave Petitions are concerned, Rule 6 application thereto is in almost identical language as that of Rule 13A. In both cases it is stipulated that unless the petitioner or the appellant as the case may be has surrendered to the sentence, the petition/the appeal shall not be registered and cannot be posted for hearing unless the Court on written application for the purpose, orders to the contrary. In both cases it is stated that where the petition/appeal is accompanied by such an application that application alone shall be posted for hearing before the Court for orders. Therefore, the position is crystal clear that the Criminal Appeal cannot be posted unless proof of surrender has been furnished by the appellant who has been convicted. It appears from the various orders which have been filed by learned counsel for the appellant, the effect of Order XXI Rule 13A has not been dealt with. It may be that the provision was not brought to the notice of the Bench. The requirements of Order XXI Rule 13A are mandatory in character and have to be complied with except when an order is passed for exemption from surrendering.(Para 8)

       The effect of Order XXI Rule 13A of the Rules does not appear to have been brought to the notice of the Court while dealing with the application for stay of the judgment of the High Court in orders on which reliance is placed by learned counsel for the appellants. The consequences which flow from such non reference to applicable provisions have been highlighted by this Court in many cases. In State through S.P. New Delhi v. Ratan Lal Arora (2004) 4 SCC 590) it was held that where in a case the decision has been rendered without reference to statutory bars, the same cannot have any precedent value and shall have to be treated as having been rendered per incuriam. The present case stands at par, if not, on a better footing. The provisions of Section 439 do not appear to have been taken note of. (Paras 11 and 12)

       The matter can be looked at from another angle. The Special Court had granted protection for some periods by suspending the sentence. It is the discretion of the Court whether to extend that protection. But that, in our view, would be subject to the provisions of Order XXI Rule 13A. May be that in those cases relied by learned counsel for the appellants the discretion has been exercised by extending the period fixed by the Special Court. But that cannot have any precedent value, more particularly when it is relatable to a mandatory requirement. Though it is the case of learned counsel for the appellant that Order XXI Rule 13A cannot in any way affect the powers available to Special Court under Section 9(4), there is no substance in the plea for the simple reason that Section 9(4) only permits the Special Court to regulate the procedure before it. That in no way authorizes the Special Court to regulate the proceedings before this Court.(Para 15)

       As per Altamas Kabir, J.

       It has been submitted that the statutory provisions of Section 389(3) Cr.P.C., has an overriding effect over the Supreme Court Rules and hence once bail has been granted to a convicted person by the trial court, this Court cannot insist that he should surrender to the sentence in terms of Rule 13A before his appeal can be registered. While such a submission is attractive, it does not stand scrutiny for the simple reason that Sub-section (3) of Section 389, Cr.P.C. empowers the trial court to release a convicted person on bail for such period as will afford him sufficient time to present an appeal and obtain orders of the Appellate Court under Sub-section (1), namely, release on bail, and it is only for such period that the sentence of imprisonment shall be deemed to be suspended. The basic fallacy of Ms. Jaiswal’s submission is that it overlooks the question that grant of bail in the appeal presupposes surrender by the convicted person. The provisions of Section 389 Cr.P.C. and that of the Supreme Court Rules, 1966, are independent provisions and will have to be considered on their own standing.(Paras 18 to 21)