RAJPUT RUDA MAHA & Ors. v. STATE OF GUJARAT

"The appellants have challenged the cpnstitutional validity (1) of rule 15 of O.XXI of the of cl. Supreme Court Rules, which enables an appeal of the kind for hearing with which we are concerned, to be placed ex parte before the Court for admission. In that view of the matter, we think that unless the question of the consti·· tutional \'alidity of the rule is decided, we cannot have a preliminary hearing of this appeal for admission. Let the records, therefore, be placed before the Hon'ble the Chief Justice for 1giving such direction as he may deem fit and pr0per." • , The matter was placed before a Bench of Judges by the . /' Ho'n'blc the Chief Justice as the constitutional validity of cl. ( c) of rule J 5 (1) of O.XXI of Supreme Court Rules, was challenged. Alongwith the question of constitutional validity, two other grounds referred to earlier were also raised. The contention of the Learned Counsel that a right of appeal cast an obligation on the Court I • • · - · - - - - (1) !1979] 2 S.C.R. 1085. B c E F G H A B C D E F G 356 SUPREME COURT REPORTS (1980] 2 S.C.R. send for records of the case, to hear both the parties and to make a reasoned judgment, was not accepted by the judgment of the Court. Reasons given by the Court are as follows : - "Counsel for the appellan: insisted that an absolute right of appeal as he desoribed it, casts an inflexible obliga- tion on the court ~o send for the rec, ord of the case, to hear both parties, and to make a reasoned Judgment. Therefore, to scuttle the appeal by a summary hearing on a preliminary posting absent record, ex parte and absolved froni giving reasons is to be absolutist-a posit:on absonent with the mandate of the Enlargement Act and, Constitution in Article 134(1). Counsel's ipsi dixit dill not convince us but we have pondered over the depth, being disinclined summarily to dismiss." indeed, of ~ ··~ Regarding the ppwer of the Court to summarily dismiss the appeal under S. 384 of the C,0de of Criminal Procedure, the submission of the Learned Counsel was that the provisions of the Cede of Criminal Procedure are not applicable to the Supreme Court which conten tion was not accep'.ed by the Court. Neither in the. application f,or adducing additional grounds or in the 0-rder of the Court directing the matter t0 be placed before Constitution Bench, there .was any reference to the validity of S. 384 of the Code of Criminal Procedure. Neither was it pleaded during the arguments that S. J84 of the Code pf Criminal Procedure ultra vires of the Constitution. As the question of validity of S. 384 edure wads ~either raished .nor a:guded, h~ .. ·~ the Code of Cthriminal Proc 1 discussion by would not be a precedent binding on the Courts. The decision is an authority for the prog'.Ysition that Rule 15 ( 1) ( c) of O.XXI of the Supreme Court Rules should be read down as indicated in the decision. e Court a !er "pan enng p'ver t e issue m ept We are satisfied for the reasons stated above that the decision is no authority regarding the scope of S. 384 of the Code of Criminal Procedure. The order of dismissal of the appeal summarily will stand. P.B.R. Appeal dismissed.