MANGO AND ANR versus STATE OF RAJASTHAN

Citation: [1976] 2 S.C.R. 324 · Decided: 06-11-1975 · Supreme Court of India · Bench: M. HAMEEDULLAH BEG · Disposal: Dismissed
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Judgment (excerpt)

A 
B 
c 
D 
F 
G 
H 
32 4 
MANGO AND ANR. 
I'. 
STATE OF RAJASTHAN 
November 6, 1975 
[M. H. BEG AND P. K. GOSWAMI, JJ.] 
Supreme Court Rules, 1950-0.21, r.2-0.47, v.1.-Scope of. 
Rule 2 of' Order 21 of the Su11reme Court Rules states that where an appeal 
lies to the Supreme Court on a certificate issued by the High Court, no appli-
cation to the Court for special leave to appeal shall be ente1tained unless the 
High Court co.ncerned has firs.I been moved and it has refused to grant the 
certificate. 
Rule 1 of Order 47, however, confers powers on the Court to dis-
pense with any of the requirements of the Rules and to pass appropriate orders 
in exercise· of its inherent powers. 
The appellants moved the High Court for a certificate under Art. 
134 (1) (c) 
of .the Constitution but later withdrew it. 
The High Court rejected the appli-
cation as withdrawn. The appellants then moved this Court stating that the 
High Court rejected their application on "merits" but not "as being out of time" 
and obtained ex parte special leave. 
Dismissing the appeal and revoking the leave to appeal, 
. HELD : ( l) The requirement of r. 2 of 0.21 has not been complied with. 
Withdrawal of the application by the appellan~s showed that they abandoned the 
idea of moving the Supreme Court. 
[3250] 
· ._,,
(2) Rule 2 of Order 21 is by itself mandatory. The fact thlt its com-
pliance may be excused by the Court in appropriate cases doe~ not affect the 
mandatory character of the Rule. This is a case which does not merit invoking 
the inherent powers of the Court for dispensing with the requirements of the 
Rules, particularly so when the appellants had rnade a definitely wrong statement 
in the special leave application with regard to their earlier application for leave 
in the High Court. 
[325G; 326A] 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 135 
of 1971. 
Appeal by Special Leave from the Judgment and Order dated the 
25th March 1971 of the Rajasthan High Court at Jodhpur in S. B. 
Criminal Appeal No. 159 of 1970. 
B. R. L. Iyengar for E. C. Agarwala for the appellants. 
S. M. Jain for Respondent. 
The Judgment of the Court was delivered by 
GOSWAMI, J. The two appellants along with four others were con-
victed by the Sessions Judge, Bhilwara, under sections 147, 452/149 
and 325/149 l.P.C. and sentenced to imprisonment and fine. 
The 
High Court on appeal acquitted four of them and maint.aine<l the c~11-
viction and sentence of the two appellants who were mvolve<l with 
several others. The appellants moved an application for a 
~rtificate 
praying for leave to appeal to this Court under article 134(1) (c) of 
i 
-
) 
•\ 
MANGO v. RAJASTHAN (Goswami, J.) 
32 5 
;the Constitution. 
Later on the leave application was withdrawn and 
.on May 12, 1971, the High Court rejected the application as withdrawn. 
The appellants later obtained ex-parte special leave on May 25, 1971. 
Jt was mentioned in para 5 of the special Iea\\e petition that their appli-
.cation for leave in the High Court was rejected "on ments, but not as 
.being out of time". 
A preliminary objection has been raised on behalf of the respon-
·dent that the special leave granted in this case should be revoked as the 
.appellants failed to comply with the requirements of rule 2 of order 21 
of the Supreme Court Rules inasmuch as there was no order of the 
Righ Court refusing to grant the certificate. 
Under order 21, rule 2 '.'where an appeal lies to the Court on a 
·Certificate issued by the High Court no application to the Court for 
special leave to appeal shall be entertained unless the High Court con-
cerned has first been moved and it has refused to grant the certificate." 
Since the application for leave was withdrawn by the appellants it 
could not be said that. the High Court at all considered the matter and 
then refused to grant the certificate. Withdrawal of the application by 
the appellants would go to show that they had abandoned the idea of 
to moving the supreme Court against the judgment. The requirement 
of rule 2 has not, therefore, been complied with. 
It is, however, submitted by Mr. Iyengar that order 47 of the 
Supreme Court Rules confers power on this Court to dispense with 
any of the requirements of these Rules and to pass appropriate orders 
in exercise of inherent powers. Rule 1 of order 47 provides that-
"the Court may, for sufficient cause shown, excuse the 
parties from compliance with any of the requirements of these 
rules, and ma
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