NAGINDAS MULCHANDDAS JARIWALA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) These Appeals have been placed before us for the consideration of the question regarding the vires of one of the Rules framed by this High Court for regulating the procedure on the Appellate Side of the High Court. The Rules were originally framed by the High Court of Bombay as early as in 1960 and they were continued as law in force after the setting up of the State of Gujarat on May 1 1960 However in June 1963 some of the Rules regarding the distribution of work between Division Benches of two Judges or more and Single Judges were amended and the controversy arises under the following circumstances.

(2.) The appellants in Criminal Appeal No.123 of 1974 were original accused Nos. 1 to 4 in Sessions Case No. 49 of 1972 in the Court of the learned Additional Sessions Judge Surat. Each of the four appellants has been convicted under sec. 120-B and sec. 420 of the Indian Penal Code or in the alternative under sec. 420 read with sec. 34 of the Indian Penal Code and each of them has been sentenced to rigorous imprisonment for one year and a fine of Rs. 5 0 or in default rigorous imprisonment for six months for the offence under sec. 420 of the Indian Penal Code. No separate sentence is passed on the remaining count. Under the Rules of the High Court since the substantive sentence of imprisonment was less than three years the matter was placed before a Single Judge of this Court M.C. Trivedi J. We may point out that after the appeal was filed a Criminal Revision Application No. 267 of 1973 has been filed by the State of Gujarat praying for enhancement of the sentence against these four appellants and original accused No. 5 who has also preferred a separate Criminal Appeal. When the matters were called out before M.C. Trivedi J. Mr. Shethna learned advocate appearing for the appellants in Criminal Appeal No. 123 of 1973 contended that sub-clause (i) of Clause 1 of Part II dealing with Criminal Matters in Rule 2 of Chapter I of the Bombay Appellate Side Rules was ultra vires the Constitution as it offended Article 14 of the Constitution. The relevant Rule is in these terms :

(3.) The principles which are applicable to challenges of this type have been now well-settled and in Kangshari Halder v. State of West Bengal A.I.R. 1960 S.C. 457 Gajendragadkar J. as he then was delivering the judgment of the majority of the learned Judges of the Supreme Court has observed in paragraph 19 of his judgment at page 464: