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The common embankments applicable to Order XXI Rule 15(1) (c) and s. 384 of the Code to prevent unconstitutional overflow may now be concretised, not as rigid manacles but as guidelines for safe exercise. We are hopeful that the Supreme Court will, if found necessary, make clarificatory rules in this behalf.
To conclude, we uphold the vires of Order XXI Rule 15(1)(c) of the Supreme Court Rules and also s. 384 of the Criminal Procedure Code but hold that in their application both the provisions shall be restricted by certain criteria as a permissible exercise in constitutionalisation.
The appellants were acquitted by the 1st Temporary Sessions Judge, Pratapgarh in Sessions Case No. 16 of 1969 of all the charges and on an appeal preferred by the State, the order of acquittal was set aside by the High Court and the appellants found guilty and convicted under section 302 read with s. 149, I.P.C., and sentenced to life imprisonment.
The appeal was listed for preliminary hearing under Rule 15 (1) (c) of Order XXI of the Supreme Court Rules, 1966. The appellants filed an application for adducing additional grounds in Crl. Misc. Petition No. 1862 of 1978 wherein it was pleaded that the provision under clause (c) of sub-rule (1) of Rule 15 of Order XXI of the Supreme Court Rules empowering the Court to dismiss the appeal summarily is ultra vires being inconsistent with the provisions of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970. It was submitted that the power of the Supreme Court to frame rules under Art. 145 of the Constitution canot be extended to annul the rights conferred under an Act of Parliament. It was further pleaded that an appeal under the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970, cannot be dismissed summarily without calling for the records ordering notice to the State and without giving reasons. When the Crl. Misc. Petition No. 1862 of 1978 came up before this Court it was ordered:-

As the constitutional validity of cl. (c) of rule 15(1) of Order XXI of the Supreme Court Rules was challenged, the matter was placed before the Full Bench by the Chief Justice.

Rule 15 of Order XXI of the Supreme Court Rules 1966 runs as follows:-

"15. (1) The petition of appeal shall be registered and numbered as soon as it is lodged. Each of the following categories of appeals, on being registered, shall be put up for hearing ex parte before the Court which may either dismiss it summarily or direct issue of notice to all necessary parties, or may make such orders, as the circumstances of the case may require, namely:-

The contention of Mr. Mulla, the learned counsel for the appellant, is that rule 15 (1) (c) of Order XXI not merely relates to the procedure but also deprives the substantive right of appeal conferred on the accused under article 134 (1) (a) and (b) and the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act,1970 and under s. 379 of the Code of Criminal Procedure. By the impugned rule the appeal on being registered is put up for hearing ex parte before the court and the court is empowered either to dismiss it summarily or direct issue of notice to all necessary parties or make such orders as the circumstances may require. Section 384 of the Code of Crl. Procedure 1973 confers a right on the appellate court to dismiss the appeal summarily when it considers that there is no sufficient ground for interfering. The proviso to the section requires that no appeal presented under section 382 by the appellant or his pleader shall be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of his case. An appeal from the appellant from jail cannot be dismissed except after giving the appellant a reasonable opportunity of being heard in support of the same, unless the Appellate Court considers that the appeal is frivolous or that the production of the accused in custody before the Court would involve such inconvenience as would be disproportionate in the circumstances of the case. Section 384 (2) provides that before dismissing an appeal under this section, the Court may call for the record of the case. Under sub-section (3) where the Appellate Court dismissing an appeal under sec. 384 is a Court of Sessions or of the Chief Judicial Magistrate, it shall record its reasons for doing so. Sec. 385 prescribes the procedure for hearing appeals not dismissed summarily. While sec. 374 confers a right of appeal, sec. 375 and sec. 376 restricts such a right. Section 384 prescribes the procedure for hearing appeals enabling the Court to dismiss certain appeals summarily and to deal with others under sec. 385 if they are not summarily dismissed. The right of appeal conferred can be curtailed by procedure as envisaged in sec. 384 Crl. Procedure Code or rule 15 Order XXI of the Supreme Court Rules.