PAHALI BEHERA Vs. STATE

JUDGEMENT

(1.) THE only question involved in this application is whether the provisions of Section 369(3) of the Code of Criminal Procedure, 1973 (in short, 'the Code') apply to an application for leave to appeal to the apex Court for grant of leave to prefer appeal.

(2.) DETAILED reference to the factual aspects is unnecessary in view of the fact that the question is a pure question of law. Petitioner was convicted for commission of offence punishable under Section 47 (a) of the Bihar and Orissa Excise Act, 1915 (in short, 'the Excise Act'), and sentenced to undergo six months' rigorous imprisonment and fine of Rs. 500/ -, in default to undergo rigorous imprisonment for one moth more by the learned Assistant Sessions Judge, Cuttack. The conviction and sentence were maintained by the learned First Additional Sessions Judge, Cuttack. Criminal Revision No. 408 of 1994 decided on 22 -12 -1995 did not bring any relief to the petitioner.

(3.) A convicted person has no right of appeal to Apex Court. He can only move the apex Court for special leave to appeal under Article 136 of the Constitution. Learned counsel for the petitioner submits that the words 'present an appeal' do not presuppose the existence of a right of appeal and that existence of a provision for appeal would be sufficient. Strong reliance is placed on a decision of the Kerala High Court in Abdulla Haji v. Food Inspector : 1986 Cri LJ 1193, based on the change of language in the provision compared to the parallel provision in the old Code. The words 'intention to present an appeal' in their ordinary grammatical sense would mean that the person has a right of appeal and intends to present an appeal. A person cannot intend to present an appeal if he has no right of appeal. He may move the apex Court for special leave to appeal and when special leave is granted it can be said that there is an appeal by him. Order XXI of the Supreme Court Rules, 1966 deals with special leave petitions in criminal proceedings and criminal appeals. Rule 9 states that on the granting of special leave, the petition for special leave shall be treated as a petition for appeal and shall be registered and numbered as such. This would mean that apart from filing a special leave petition no separate memorandum of appeal in necessary. In Arunachalam v. P.S.R. Setharathnam : AIR 1979 SC 1284, it was observed that 'after leave appeal is born'. From this it does not follow that what a person originally presents as special leave petition is actually an appeal or memorandum of appeal. The birth of the appeal takes place on the grant of special leave. Special leave petition, on leaving being granted, is treated as an appeal. He has to satisfy the apex Court that it is a fit case for grant of special leave and then only urge his appeal before the Court. Power under Article 136 is a discretionary and extraordinary power outside the purview of ordinary law and has no resemblance to an ordinary appellate power. The apex Court exercising jurisdiction under Article 136 is not a regular Court of appeal. It cannot be said that there is no difference between 'presenting an appeal' and 'presenting a special leave petition'. - - - -