Tag Archives: Appeal

Whether an application for substitution of a respondent who was dead when the Special Leave Petition was filed was maintainable, and if not, the remedy of the petitioner when he comes to learn that the respondent was actually dead when he filed the Special Leave Petition.

Supreme Court of India in Gurcharan Singh vs Surjit Singh & Anr  decided on 2 November, 2012

The Calcutta High Court has taken a similar view in State of West Bengal v. Manisha Maity (supra) that Order XXII, Rule 4 of the CPC providing for the procedure for substitution of the heirs and legal representatives of the deceased defendants has no application when the appeal itself was preferred against a dead person. The Division Bench of the Calcutta High Court, however, has suggested that in such a case:

“The remedy of an appellant, who has unknowingly filed an appeal against a dead person, is to file an application for presentation of the appeal against the heirs of the dead person afresh. If the time for filing the appeal was in the meantime over, he is to present an application, under Section 5 of the Limitation Act, therein explaining the delay in presenting the appeal afresh against the heirs of the dead person. If he can make out sufficient cause for making the belated prayer, the Court may allow the same, amend the cause title of the memorandum of appeal by incorporation of the names of the heirs and legal representatives of the dead person and treat the appeal as a freshly presented appeal against the heirs.”
6. Thus, the aforesaid authorities are clear that where a party has been impleaded as respondent in an appeal but such respondent was dead before filing of the appeal, the remedy of the appellant is not to file an application for substitution of legal representatives of such respondent, but to file an application for an amendment of the appeal memorandum and in a case where such application for amendment is filed beyond the limitation prescribed for filing the appeal, the appellant must also file an application under Section 5 of the Limitation Act for condonation of delay in filing the application for amendment and if the Court is satisfied with the explanation given by the appellant for the delay, the Court can condone the delay and allow the amendment of the appeal memorandum.

Appeal and revision under Income Tax Act 1961

Note

Appeals from certain Orders under Civil Code

CODE OF CRIMINAL PROCEDURE (1)

SECTION 104 to 106: ORDERS FROM WHICH APPEAL LIES

(1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:–
(ff) an order under section 35A;
(ffa) an order under section 91 or section 92 refusing leave to institute a suit of the nature referred to in section 91 or section 92, as the case may be;
(b) an order under section 95;
(h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree;
(i) any order made under rules from which an appeal is expressly allowed by rules:
PROVIDED that no appeal shall lie against any order specified in clause (ff) save on the ground that no order, or an order for the payment of a less amount, ought to have been made.
(2) No appeal shall lie from any order passed in appeal under this section.

SECTION 105: OTHER ORDERS

(1) Save as otherwise expressly provided, no appeal shall lie from any order made by a court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.
(2) Notwithstanding anything contained in sub-section (1), where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness.

SECTION 106: WHAT COURTS TO HEAR APPEALS

Where an appeal from any order is allowed, it shall lie to the court to which an appeal would lie from the decree in the suit in which such order was made, or where such order is made by a court (not being a High Court) in the exercise of appellate jurisdiction, then
to the High Court.

Order 43

1. Appeal from orders. – An appeal shall lie from the following orders under the provisions of section

104, namely:—

(a) an order under rule 10 of Order VII returning a plaint to be presented to the proper Court [except where the procedure specified in rule 10A of Order VII has been followed];

(b) [*****]

(c) an order under rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;

(d) an order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte [*****]

(f) an order under rule 21 of Order XI;

(g) [*****]

(i) an order under rule 34 of Order XXI on an objection to the draft of a document or of an endorsement;

(j) an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale;

[(ja) an order rejecting an application made under sub-rule (1) of rule 106 of Order XXI, provided that an order on the original application, that is to say, the application referred to in sub-rule (1) of rule 105 of that Order is appealable.]

(k) an order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit;

(l) an order under rule 10 of Order XXII giving or refusing to give leave;

(m) [*****]

(n) an order under rule 2 of Order XXV rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;

[(na) an order under rule 5 or rule 7 of Order XXXIII rejecting an application for permission to sue as an indigent persons:]

(o) [*****]

(p) orders in interpleader-suits under rule, rule 4 or rule 6 or Order XXXV;

(q) an order under rule 2, rule 3 or rule 6 of Order XXXVIII;

(r) an order under rule 1, rule 2 [rule 2A], rule 4 or rule 10 of Order XXXIX;

(s) an order under rule 1 or rule 4 of Order XL;

(t) an order of refusal under rule 19 of Order XLI to re-admit, or under rule 21 of Order XLI to re-hear, an appeal;

(u) an order rule 23 [or rule 23A] of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court;

(v) [*****]

(w) an order under rule 4 of Order XLVII granting an application for review.

[1A . Right to challenge non-appealable orders in appeal against decree. 

(1) Where any order is made under this Code against a party and there upon any judgment is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the judgment should not have been pronounced.

 

(2) In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded.]

2. Procedure. – The rules of Order XLI shall apply, so far as may be, to appeals from orders.

When exercising appellate jurisdiction under Article 136, the Supreme Court has power to pass any order.

02-02-1998

Supreme Court-min

Supreme Court has no power to enhance sentence in the absence of an appeal by the Government presented specifically for that purpose more so because the Supreme Court has no revisional powers which the High Court and Court of Sessions are conferred with by the present Code.

Article 142 should not be made far too often since those powers are specifically reserved for using in exceptional exigencies.

AIR 1998 SC 1165 : (1998) 1 SCR 447 : (1998) 3 SCC 38 : JT 1998 (1) SC 352 : (1998) 1 SCALE 326 : (1998) CriLJ SC 1613

(SUPREME COURT OF INDIA)

Chandrakant Patil Appellant
Versus
State through cbi Respondent

WITH

Shyam K. Garikapati Appellant
Versus
State Through CBI Respondent

AND

Subhash Singh Thakur Appellant
Versus
State Through CBI Respondent

AND

Jayendra Thakur Appellant
Versus
Govt. of National Capital Territory of Delhi Respondent

(Before: M. K. Mukherjee And K. T. Thomas, JJ.)

Criminal Appeal Nos. 438 with 445, 447 and 486 of 1997, Decided on: 02-02-1998.

Counsel for the Parties:

Ram Jethmalani, K. T. S. Tulsi, V. S. Kotwal, and S. R. Chitnis, Sr. Advocates, P. N. Gupta, Ms. Lata Krishnamurthy, Anil Kumar Gupta, J. Butcher, Vikas Pawha, Advocates with them for Appellants

V. R. Reddy, Addl. Solicitor General, A. Mariarputham, T. C. Sharma and P. Parmeswaran, Advocates with him for Respondent.

JUDGEMENT

Thomas, J—After concurring with the finding that first accused Subhash Singh Thakur, second accused Jayendra Thakur alias Bhai Thakur; third accused Shyam Kishore Garikapati and fourth accused Chandrakant Patil are guilty of the offence under Section 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987, for short ‘the TADA’, and confirming the conviction of that offence we felt that the sentence of rigorous imprisonment for 5 years awarded by the trial Court to each of them is inadequate. Hence we issued notice to them on the proposal to enhance the sentence. The said accused, in reply to the notice, filed detailed written submission. We heard the arguments addressed by the senior counsel on behalf of those accused and also Shri V. R. Reddy, Addl. Solicitor General who argued for the Central Bureau of Investigation.

2. We may state at the outset that we would not, at this stage, review the finding regarding the conviction of the offence under Section 5 of TADA for the obvious reason that we confirmed the finding after considering in detail the contentions raised by the accused and the elaborate arguments addressed by the learned counsel. Further, we have already dismissed the petitions filed for review of the findings arrived at by us adverse to those accused. Shri Ram Jethmalani, learned senior counsel made an endeavour to convince us that the accused have a right for re-canvassing the aforesaid finding on a parity of the principle envisaged in Section 377 (3) of the Code of Criminal Procedure, 1973 (which may be referred to hereinafter as ‘the present Code’). According to the sub-section “when an appeal has been filed against the sentence on the ground of its inadequacy, the High Court shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause, the accused may plead for his acquittal or for the reduction of the sentence.”

3. Under the Code of Criminal Procedure, 1898 (the old Code) High Court had the power to enhance a sentence even on an appeal filed by the accused against his conviction. Section 423 of the old Code, while circumscribing the powers of the appellate Court, made an addition through sub-section (1-A) like this:

“(1-A) Where an appeal from a conviction lies to the High Court, it may enhance the sentence, notwithstanding anything inconsistent therewith contained in clause (b) of sub-section (1).”

As against the said provision, the corresponding section in the present Code contains restrictions imposed on the appellate Court for enhancing the sentence on an appeal filed from a conviction. The said restriction is incorporated in Section 386 (b) of the present Code that in an appeal from conviction, the appellate Court may reverse the finding and sentence and acquit or discharge the accused or alter the finding and maintain the sentence or with or without altering the finding alter the nature or the extent of the sentence “but not so as to enhance the same.” While incorporating the said restriction the present Code conferred a new right on the State or Central Government by Section 377 to present an appeal through the Public Prosecutor on the ground of inadequacy of sentence. Such appellate powers of the High Court are subject to the rider that the accused should be given a reasonable opportunity of showing cause against such enhancement and while showing such cause the accused has the right to plead for acquittal or for reduction of sentence.

4. On the strength of the principle so adumbrated in the present Code learned counsel contended first that this Court has not power to enhance the sentence as the present appeal has been filed from a conviction, and second, that the accused would get a right when there is a proposal to enhance the sentence, to plead for his acquittal by reviewing the finding already made.

5. We are unable to agree with the learned counsel that the accused has a further right in this case to canvass for reviewing the finding arrived at by this Court over again. The right envisaged in Section 377 (3) of the present Code shall be confined to appeals presented by Government to the High Court against sentence on the ground of its inadequacy. There is no scope to afford a further opportunity in the appeal, at this stage, since the finding of the trial court has already been considered elaborately by re-evaluating the entire evidence in the light of the elaborate arguments canvassed on behalf of the parties. A repetition of the whole process over again is, apart from waste of time of this Court, unnecessary and unwarranted by law.

6. Shri Ram Jethmalani, learned senior counsel next contended that the Supreme Court has no power to enhance sentence in the absence of an appeal by the Government presented specifically for that purpose more so because the Supreme Court has no revisional powers which the High Court and Court of Sessions are conferred with by the present Code.

7. Powers of the Supreme Court in appeals filed under Article 136 of the Constitution are not restricted by the appellate provisions enumerated under the Code of Criminal Procedure or any other statute. When exercising appellate jurisdiction, the Supreme Court has power to pass any order. The aforesaid legal position has been recognized by a Constitution Bench of this Court in Durga Shankar Mehta v. Raghuraj Singh, (1955) 1 SCR 267 and later followed in a series of decisions. [vide Arunachalam v. PSR Sadhanantham, (1979) 2 SCC 297 , Delhi Judicial Service Association v. State of Gujarat, (1991) 4 SCC 406 .

8. The present appeals have not been filed under Article 136 of the Constitution, but under Section 19 of TADA. Hence it was contended that while dealing with a statutory appeal, plenary powers of the Supreme Court cannot be exercised. Accepting the said contention we may point out that even otherwise this Court has wide and residual powers to deal with the situation like this, which are well enclosed in Article 142 of the Constitution.

9. It is now well high settled that Supreme Court’s power under Article 142 of the Constitution are vastly broad based. That power in its exercise is circumscribed only by two conditions, first is that it can be exercised only when Supreme Court otherwise exercises its jurisdiction and the other is that the order which Supreme Court passes must be necessary for doing complete justice in the cause or matter pending before it. The first condition is satisfied here as the appellate jurisdiction of the Supreme Court is exercisable by virtue of Section 19 of TADA.

10. In Delhi Judicial Service Association v. State of Gujarat (supra) as also in Union Carbide Corporation v. Union of India, (1991) 5 SCC 584 , this Court made the position clear that power under Article 142 of the Constitution is entirely of different level and is of a different quality which cannot be limited or restricted by provisions contained in statutory law. No enactment made by the Central or State legislature can limit or restrict the power of this Court under Article 142, though while exercising it the Court may have regard to statutory provisions. In Mohammed Anis v. Union of India, (1994) 1 Suppl. SCC 145, Ahmadi J. (as the learned Chief Justice then was) by following the dictum in the above mentioned decisions has observed in paragraph 6, as follows:

“This power has been conferred on the Apex Court only and the exercise of that power is not dependent or conditioned by any statutory provision. The constitutional plenitude of the powers of the Apex Court is to ensure due and proper administration of justice and is intended to be co-extensive in each case with the needs of justice of a given case and to meeting any exigency. Very wide powers have been conferred on this Court for due and proper administration of justice and whenever the Court sees that the demand of justice warrants exercise of such powers, it will reach out to ensure that justice is done by resorting to this extraordinary power conferred to meet precisely such a situation.”

11. In E. K. Chandrasenan v. State of Kerala (1995) 2 SCC 99 , this Court has traced its power in Article 142 for the purpose of enhancing the sentence awarded to the accused who filed the appeal challenging the conviction passed by the High Court. The following observations in the said decision are apposite:

“What is contained in Article 142 would in any case provide sufficient power to this Court to pass an order like the one at hand, if this Court were to be of the view that the same is necessary for doing complete justice.”

12. Shri Ram Jethmalani, learned senior counsel, cautioned us by reminding that recourse to Article 142 should not be made far too often since those powers are specifically reserved for using in exceptional exigencies. According to him the instances when resort was made to Article 142 by the Court in the past were far and few between and that too in cases of very rare eventualities.

13. We are aware that powers under Article 142 are not to be exercised frequently but only sparingly. The occurrence described in this case is not the usual type of crimes reaching this Court. When all the four accused were caught red handed while making nocturnal movements towards some targeted destination, in the densely crowded city with highly lethal and quickly explosive articles, it is a matter of reasonable imagination that, had they not been timely intercepted by the alert and vigilant police force, the consequences would have been disastrous and calamitous. We have no manner of doubt that sentence of imprisonment of five years for the offence under Section 5 of the TADA in the circumstances of this case is too inadequate and it warrants enhancement.

14. The next question to be considered is, what should be the extent of the sentence. Section 5 of TADA prescribes punishment of “imprisonment for a term which shall not be less than five years, but which may extend to imprisonment for life” besides fine. When we found that the minimum sentence prescribed is too inadequate, we have to consider whether the maximum prescribed is attracted.

15. Christopher J. Emmins MA in his ‘A Practical Approach to Sentencing’, has suggested that the maximum sentence should be reserved for the gravest instances of offence likely to occur as a principle of commonsense (vide p. 110). We do not think that the maximum sentence prescribed in the section need be awarded in this case since on a consideration of all aspects of the case we feel that the said upper limit is on the higher side. Nevertheless, after bestowing our serious consideration in the matter we are of the definite opinion that imprisonment for a period of at least 10 years would be necessary to meet the ends of justice looking at the manner in which the offence was perpetrated by the four accused persons.

16. In the result, we enhance the sentence of imprisonment from 5 years as awarded by the Designated Court, to 10 years for all the four accused A-1 Subhash Singh Thakur, A-2 Jayendra Thakur alias Bhai Thakur, A-3 Shyam Kishore Garikapati, and A-4 Chandrakant Patil. Ordered accordingly.

17. All the appeals would stand thus disposed of.