MANGU Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The two appellants along with four others were convicted by the Session Judge, Bhilwara, under Sections 147, 452/149 and 325/149, I. P. C. and sentenced to imprisonment and fine. The High Court on appeal acquitted four of them and maintained the conviction and sentence of the two appellants who were involved with several others. The appellants moved an application for a certificate praying for leave to appeal to this Court under Article 134 (1) (c) of the Constitution. Later on the leave application was withdrawn and on May12, 1971, the High Court rejected the application as withdrawn. The appellants later obtained ex parte special leave on May 25, 1971. It was mentioned in para 5 of the special leave petition that their application for leave in the High Court was rejected "on merits, but not as being out of time".

(2.) A preliminary objection has been raised on behalf of the respondent 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 High Court refusing to grant the certificate.

(3.) 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 concerned 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 Since the application for leave was withdrawn by the appellants it could not be said that the High Court at all considered the matter and then refused to grant the certificate.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 moving the Supreme Court against the judgment. The requirement of Rule 2 has not, therefore, been complied with.