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2011 (3) GCD 1973 (SC)
Hon’ble Mr. Justice Asok Kumar Ganguly &
Hon’ble Mr. Justice Deepak Verma
Yomeshbhai Pranshankar Bhatt
Versus
State of Gujarat
Criminal Appeal No. 2109 of 2009—Decided on 19/05/2011
(a) Civil Procedure Code, 1908 (Central Act 5 of 1908) — Section 100, Order 47 Rules 1 and 6 — Supreme Court Rules, 1966 — Constitution of India, 1950 — Articles 142 and 145 — Special Leave Petition — Notice confined to a particular question — Binding nature of notice — Jurisdiction of Court at the time of final hearing — Scope of — Finding as to.
(yu) rŒðt™e ftÞoher‚ Ëkrn‚t, 1908 (fuLÿ™tu Ë™ 1908 ™tu 5{tu) – f÷{ 100 – ytŒuþ 47 r™Þ{tu 1 y™u 6 – Ëw«e{ ftuxo r™Þ{tu, 1966 – ¼th‚™wk ƒkÄthý, 1950 – y™wåAuŒtu 142 y™u 145 – ¾tË hò yhS – [tuË «&™÷ûte ™tuxeË – ™tuxeË™tu ƒkÄ™tí{f «fth – ykr‚{ Ëw™ðýe Ë{Þu ftuxo™e LÞtrÞf Ë¥ttûtuºteÞ nfw{‚ – ÔÞt… – ‚u yk„u™t ‚thýtu.
Held :
In view of this position under the rules and having regard to the constitutional provision under Article 142, we do not think that this Court at the time of final hearing is precluded from considering the controversy in its entire perspective and in doing so, this Court is not inhibited by any observation in an order made at the time of issuing the notice. [Para 11]
Court, however, make it clear that this cannot be a universal practice in all cases. The question whether the Court will enlarge the scope of its inquiry at the time of final hearing depends on the facts and circumstances of the case. Since in the facts of this case, Court find that the appellant should be heard on all points, Court has come to the aforesaid conclusion. [Para 15]
Head Note :
(b) [Indian] Penal Code, 1860 (Central Act 45 of 1860) — Section 302 — Murder — Conviction and sentence to suffer imprisonment for life — Appreciation of evidence — Finding of — Sustainability — In view of evidence on record it is clear that the appellant had no pre-meditation to kill the deceased or cause any bodily harm or injury to deceased — Every thing his happened on the spur of moment — In view of concurrent finding by both Courts and having regard to material on record the fact that kerosene was sprinkled on deceased and fire was lit by him cannot be disputed — But having regard to facts and circumstances of the case and in the light of the defence Court held that case falls under Section 304 Part II IPC — The appellant has already suffered imprisonment for 11 years and 2 months — Court also held that period of imprisonment already undergone by appellant is more than sufficient under Section 304-II IPC — However the sentence of fine is set aside.
Held :
It is clear that the appellant had no pre-meditation to kill the deceased or cause any bodily harm or injury to the deceased. Everything has happened on the spur of the moment. The appellant must have lost self-control on some provocative utterances of the deceased. These possibilities cannot be ruled out, having regard to the evidence of PW. 1. However, the fact that kerosene was sprinkled on the deceased by the appellant possibly cannot be disputed, in view of concurrent finding by both the courts and having regard to the materials on record. [Para 27]
But whether the case falls under Section 300, thirdly of IPC, is very doubtful. Having regard to the facts and circumstances of the case and in the light of defence of the deceased, this Court holds that the case falls under Section 304 Part II and the appellant has already suffered imprisonment for 11 years 2 months. In that view of the matter, this Court holds that the sentence which has already been undergone by the appellant is more than sufficient under Section 304 Part II. However, the sentence of fine is set aside. [Para 28]
Law Laid Down :
Merely because a witness has turned hostile his entire evidence should not be brushed aside.
Case Law Analysis :
Rodemadan India Ltd. vs. International Trade Expo Centre Ltd., (2006) 11 SCC 651 [Para 5(i)];; Prem Chand Garg and Another vs. Excise Commissioner, U.P. and Others, AIR 1963 SC 996 [Para 5(ii)];; State of Uttaranchal vs. Alok Sharma and Others, 2009 (7) SCC 647 [Para 12];; State of U.P. vs. Chetram and Others, AIR 1989 SC 1543 [Para 19];; Khujji alias Surendra Tiwari vs. State of Madhya Pradesh, AIR 1991 SC 1853 [Para 20].—Relied on
Asok Kumar Ganguly, J.—Heard Learned Counsel for the parties.
2. Some important questions have come up for consideration in this case.
3. This appeal is against the concurrent finding of both the courts convicting the appellant under Section 302 IPC and sentencing him to suffer imprisonment for life. The judgment of the Trial Court was rendered by the Additional Sessions Judge at Vadodara in Sessions Case No. 275 of 2001 by judgment and order dated 16.8.2001. The High Court by judgment and order dated 17.3.2009 in Criminal Appeal No. 815 of 2001 affirmed the same.
4. At the stage of SLP, this Court by an order dated 27.7.2009 issued notice only confined to the question as to whether the petitioner is guilty for commission of an offence under any of the parts of Section 304 of the Indian Penal Code and not under Section 302 thereof.
5. Learned Counsel for the appellant urged that though at the time of issuing notice, this Court limited its rights to raise points only within the confines of Section 304 of Indian Penal Code, the Court is not bound at the time of final hearing with that direction given while issuing notice and the appellant is entitled to urge all questions including his right to urge that he should have been acquitted in the facts and circumstances of the case. Before examining the correctness of the aforesaid submission, we are inclined to look into the rules of this Court. The Supreme Court Rules, 1966 (hereinafter referred to as “the rules”) which have been framed under Article 145 of the Constitution are relevant in connection with this inquiry. It has been held by this Court that the power of Supreme Court to make Rules to regulate its own procedure is only subject to two limitations:
(i) These rules are subject to laws made by Parliament. [See Rodemadan India Ltd., vs. International Trade Expo Centre Ltd., (2006) 11 SCC 651.]
(ii) These rules, being in the nature of subordinate legislation, cannot override the Constitutional provision. [See Prem Chand Garg and another vs. Excise Commissioner, U.P. and others, AIR 1963 SC 996]
6. However, these rules are intended to govern the practice and procedure of this Court.
7. Article 145 of the Constitution provides that subject to the provisions of any law made by Parliament, the Supreme Court, may from time to time, with the approval of the President, make rules for regulating the general practice and procedures of the court including the matters which are enumerated as follows:—
(a) rules as to the persons practising before the Court;
(b) rules as to the procedure for hearing appeals and other matters pertaining to appeals including the time within which appeals to the Court are to be entered;
(c) rules as to the proceedings in the Court for the enforcement of any of the rights conferred by Part III;
(cc) [rules as to the proceedings in the Court under [Article 139A];
(d) rules as to the entertainment of appeals under Sub-clause (c ) of Clause (1) of article 134;
(e) rules as to the conditions subject to which any judgment pronounced or order made by the Court may be reviewed and the procedure for such review including the time within which applications to the Court for such review are to be entered;
(f) rules as to the costs of and incidental to any proceedings in the Court and as to the fees to be charged in respect of proceedings therein;
(g) rules as to the granting of bail;
(h) rules as to stay of proceedings;
(i) rules providing for the summary determination of any appeal which appears to the Court to be frivolous or vexatious or brought for the purpose of delay;
8. We are not concerned here with other sub-articles of Article 145. The rules which have been thus framed by this Court under the constitutional provision must be read in understanding the scope of its power under Article 142 of the Constitution.
Article 142 of the Constitution provides as follows:—
142. Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc.—(1) The Supreme Cour
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