Holding

A petition under Article 32 cannot be entertained to challenge the finality of a Supreme Court decision in a special leave petition, and the Court cannot issue a writ against itself.

Summary

The petitioner Jharia was convicted under IPC s.302 read with s.34 and sentenced to life imprisonment, a conviction upheld by the Rajasthan High Court while his co‑accused were acquitted. He applied for special leave to appeal to the Supreme Court under Article 136, but the petition was dismissed, as was a subsequent review. The petitioner then filed a writ petition under Article 32 seeking a mandamus to stay the trial court, High Court judgments and the Supreme Court's order dismissing his special leave, alleging violation of Articles 21, 14 and 19. The Supreme Court held that a petition under Article 32 cannot be used to challenge the finality of a decision made by the Court in a special leave petition, as the Court cannot issue a writ against itself. Consequently, the writ petition was dismissed for lack of maintainability.

Issues considered

Whether a petition under Article 32 of the Constitution is maintainable to assail the finality of a Supreme Court decision in a special leave petition under Article 136.
Whether the Supreme Court can issue a writ of mandamus against its own judgment.
Whether the petitioner can claim violation of fundamental rights after the special leave petition has been dismissed.

Legislation cited

Code of Civil Procedure, 1908s. 115
Constitution of Indias. Article 136, s. Article 14, s. Article 19, s. Article 21, s. Article 32
Indian Penal Code, 1860s. 302, s. 34

Subjects

Article 32Article 136Special Leave PetitionFundamental RightsArticle 21Article 14Article 19Writ of MandamusFinality of judgmentsSupreme Court jurisdictionCriminal convictionIPC s.302IPC s.34

Judgment

47s
JHARIA S/O MANIYA
A
v.
STATE OF RAJASTHAN AND ANOTHER
•
July 21, 1983
B
[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? ' ·
c
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 D
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, E
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 pun~shablc 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 F
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 consti- G
tuting 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.
H
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.
A
S.K. Jain for the Petitioner.

The Judgment of the Court was delivered by

B
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.

c 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
D 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
E 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.
F 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 sen-
tence. The petitioner seeks. the issuance of a writ of· mandamus
directing the State of Rajasthan to forbear from giving effect to the
G· 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
H 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), A
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.
B
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 c
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
D
in there proceedings under Art .. 32 that conviction of the petitioner
J 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 depri- E
vation 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 F
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 G
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.
ll
(3) [19801 2 s.c.c. 401.
(4) (1970] I S.C.R. 322.
,I
478 SUPREMll COURT REPORTS (1983} 3. s.c.il.
chosen as exhausted, it would not be a proper and sound exercise of
A 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
B 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
c 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
D 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.

·-