47s

JHARIA S/O MANIY A

STATE OF RAJASTHAN AND ANOTHER

• July 21, 1983

[A. P. SEN, E. S. VENKATARAMIAH AND R . .B. MISRA, JJ.]

Constitution of India-Art. 32-Whether a petition 1, nder Art. 32 is 111ain tainable to assail the finality of the decision of the Court in ti special leave petition under Art. 136? ' ·

The petitioner and his two associates weie convicted and sentenced under s. 302 read \Vith s. 34, l.P, C. On appeal, the Hi_gh Court-m11intained the conviction of the petitioner but acquitted his associates giving them the benefit of doubt. The petitioner applied to this Court for grant of special leave to appeal under Art. 136 but the same was dismissed. By this petiticn under Art. 32 the petitioner sought issuance of a writ of 1nandamus directing the State to forbear from giving effect to the judgment and sentence passed by the triaf court as also the judgment of the High Court as well as the order passed by this Court dismissing the special leave petition on the ground that his conviction was illegal and therefore his detention in jail was in violation of Art. 21 read with Arts. 14 and 19.

Dismissing the petition,

HELD : The propriety" of asking for a declaration in these proceedings under Art. 32 that conviction of the petitioner by the High Colirt for an offence punshablc 1:1nder s. 302 read with s. 34 l.P.C. is illegal, particularly when this Court has declined to' grailt special leave under Art. 136 cannot be appreciated. Nor can the petitioner be heard to say that his detention in.jail an1ounts to deprivation of the fundamental ight to life and liberty without following the procedure established by law in violation of Art. 21 read with Arts. 14. and 19. When a special leave petition is assigned to the learned judges sitting in a Bench, they constitute the Supreme Court and there is a finality to their judgment which cannot be upset in these proceedings under Art. 32. Obviously, the Supreme Court cannot issue a writ, direction or order to itself in respect of any judicial proceedings and the learned judges constituting the Berl'ch a!'e not amenable to the writ jurisdiction of this Court.

[470 D-FJ

Shankar Ramclzandra Abbyankar v. Krishnaji Dattatreya Bapat, [1970] 1 . S.C.R. 322, referred to.

ORIGINAL JURISDICTION : Writ Petition (Criminal) No. 1632 of 1981. .

416 SUPRm.iE COlfaT REPORTS

[!983] S.C.R.

Under article 32 of the Constitution of India.

S.K. Jain for the Petitioner.

The Judgment of the Court was delivered by

SEN, J. This petition under Art. 32 of the Constitution is clearly not maintainable and must be dismissed but in view of the growing trend of filing such frivolous applications, we deem it necessary to state the reasons therefor.

It appears that the petitioner along with two others was arraigned befure the Sessions Judge of Al war in Sessions Trial No.

110 of 1976 for having committed an alleged offence punishable under s. 302 of the Indian Penal Code, alternatively, under s. 302 read with s. 34 of the Code.

By his. finding and sentence dated April 21, 1977 the learned Sessions Judge convicted the petitioner and his two.associates for having committed the murder of the deceased Jharia in furtherance of their common intention under s. 302 read with s. 34 and. sentenced each of them to undergo imprisonment for life, while recording their acquittal under s. 302. On appeal, a Division Bench of the Rajasthan High Court (Jaipur Bench) in Criminal Appeal No. 219 of 1977 by judgment dated July 3, 1980 maintained the conviction of the petitioner under s. 302 read with s. 34 but acquitted his two associates giving them the . benefit of doubt.

Dissatisfied with the judgment of the High Court, the petitioner applied to this Court for grant of special leave under Art. 136 of the Constitution. The special leave petition was dismissed by this Court on February, 23, 198 l. An application for review was also dismissed on Novermber 19, 1981. Thereafter, the petitioner filed this petition under Art. 32 assailing his conviction and sentence.

The petitioner seeks. the issuance of a writ of mandamus directing the State of Rajasthan to forbear from giving effect to the judgment and sentence passed by the learned Sessions Judge as also the judgment of the High Court as well as the order passed by this Court dismissing the special leave petition. He further seeks a declaration that his conviction under s. 302 read with s. 34 by the High Court was illegal and therefore his detention in jail was without the authority of law and in violation of Art. 21 read with Arts. 14 and 19 of the Constitution.

fiiARiA v. RAJASTHAN ·(Sen, J.) 471

The petitioner contends that in view of the decisions of thisCourt in Krishna Govind Patil v. State of Maharashtra(1), Maina Singh v. State of Rajasthan(') and Piara Sinnh v. State of

PunJab('), his conviction under s. 302 read with s. 34 was illegal as he had been charged with two other named persons who have been acquitted by the High Court and therefore he cannot be convicted of an offence punishable under s.-302 read with s. 302 read with s. 34.

Upon this basis, the contention is that the petitioner has been deprived of his life and liberty without the authority of law in violation of Art. 21 read with Arts. 14 and 19 of the Constitution.

It is represented to us that the contention based upo; the decis; ons of this Court had been advanced during the course of the hearing of the special leave petition, but both the special leave petition and the application for review have been dismis.sed and therefore the petitioner has no other remedy except to approach this Court for appropriate writ, direction or order under Art. 32 of the Constitution.

We fail to appreciate the propriety of asking for a_ declaration in there proceedings under Art .. 32 that conviction of the petitioner by the High Court for an offence punishable under s. 302 read with s. 34 of the India Penal Code is illegal, particularly when this Court has declined to grant special leave under Art. 136.

Nor can the petitioner be heard tosay that his detontion in. jail amounts to deprivation of the fundamental right to life and liberty without following the procedure established by law in violation of Art. 21 read with Arts. 14 and 19.

When a special leave petition is assigned to the learned Judges sitting in a Bench, they constitute the Supreme Court and there is a finality to their judgment which cannot be upset in these proceedings under Art. 32.

Obviously, the Supreme Court cannot issue a writ, direction or order to itself in respect of any judicial proceedings and the learnea Judges constituting the Bench are not amenable to the writ jurisdicition of this Court.

In Shankar Ramchandra Abbyankar v. Krislmaji Dattatreya Bapat,(') this Court laid down that if there are two modes of invoking the jurisdiction of the High t:ourt and one of those modes has been

(1) (1964] 1 S.C.R. 678. (2)

[1976] 3 S.C.R. 631.

(3) [19801 2 s.c.c. 401.

(4) (1970] I S.C.R. 322.

SUPREMll COURT REPORTS (1983} 3. s.c.il.

chosen as exhausted, it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the Subordinate Court. In that case, the respondent had already chosen the remedy under s. I 15 of the Code of Civil Procedure 1908, but a learned Single Judge dismissed the revision. Thereupon, the respondent moved the High Court by a petition under Arts. 226 and 227 ·.of the Constitution challenging the same order of the appellate court. A Division Bench of the High Court held that in spite of the dismissal of the revision petition, it could interfere under Arts. 226 and 227 on a proper case being made out, and after going into the .merits of the case, it granted relief to the respondent. On appeal to this Court, the contention was that the High Court could not have interfered under Arts: 226 and .

227. That contention of the appellant prevailed and the judgment of the Division Bench of the High Court was set aside. It was observed :

"The refusal to grant relief in: such circumstances would be , in consonance with the anxiety of the court to prevent abuse of process as also to respect and accord finality to its ?wn decisions."

There is no reason why the same principle should not equally apply to proceedings nnder Art. 32 of the Constitution which are initiated after the Court has declined to interfere under Art. 136.

 For these reasons, the writ petition fails and is dismissed;

H.L.C.

Petition dismissed.