TaxTMI 
TaxTMI 
2015 (2) TMI 1354
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....his writ petition has been filed under Article 32 of the Constitution of India seeking to declare Rule 159 of the High Court of Jharkhand Rules, 2001 as violative of Articles 14 and 21 of the Constitution and provisions of Sections 397 and 401 of the Code of Criminal Procedure, 1973 ("Cr.P.C."). The rule in question is as follows: "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....
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....le to be ultra vires. Reliance has been placed on the judgment of the Division Bench of the High Court in Mahadeo Prasad Shrivastav vs. High Court of Jharkhand [2004 Crl.L.J. 4392] laying down that the Rule could not be held to be arbitrary, discriminatory or illegal. Special Leave Petition (Crl.) No.4890 of 2004 filed against the said judgment was dismissed by this Court. It has also been stated that there is an identical provision in Order XXI, Rule 6 of the Supreme Court Rules, 1966 and thus such a provision cannot be held to be arbitrary nor such a provision, in any manner, be held to be inconsistent with Section 389 read with Sections 397 and 401 Cr.P.C. The High Court is competent to frame Rules to regulate its procedure. Reliance has....
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..... It was observed that the Rule only crystalised the pre-existing practice of this Court and the High Courts. Further, question considered was whether the Rule violated Article 161 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 : "........This Rule was, in terms, introduced into the Supreme Court Rules last year ....
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....ecame 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 ....
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....character and have to be complied with except when an order is passed for exemption from surrendering." 7. In concurring judgment, it was observed : "16. It has been submitted that the statutory provisions of Section 389(3) CrPC have 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 13-A before his appeal can be registered. 17. While such a submission is attractive, it does not stand scrutiny for the simple reason that sub-section (3) of Section 389 CrPC empowers the trial court to release a convicted person on bail for such period as will afford him sufficient time to pre....