Sunday, 31 January 2016

Whether writ petition is maintainable before Supreme court even though no constitutional question arise for consideration?

Mr. Rakesh Dwivedi, learned Senior Counsel who appeared for the State of Tamil Nadu would, however, contend that the Writ Petition does not reflect any violation of fundamental right for invoking Article 32, that the maintainability question was raised as could be seen from the additional grounds raised by the Union of India in the Writ Petition itself though the question was not considered in the order of Reference. Mr. Ram Jethmalani, learned Senior Counsel who appeared for the private Respondent(s) by referring to Articles 143 and 145(3) read along with the proviso to the said Sub-article submitted that when no question of law was likely to arise, the referral itself need not have been made and, therefore, there is nothing to be answered. By referring to each of the sub-paragraphs in paragraph 52 of the Reference order, the learned Senior Counsel submitted that none of them would fall under the category of Constitutional question and, therefore, the Writ Petition was not maintainable. The learned Senior Counsel by referring to the correspondence exchanged between the State and the Union of India and the judgment reported as V. Sriharan alias Murugan v. Union of India and Ors. (supra) by which the sentence was commuted by this Court as stated in particular paragraph 32 of the said judgment, contended that in that judgment itself while it was held that commutation was made subject to the procedural checks mentioned in Section 432 and further substantive check in Section 433-A of the Code there is nothing more to be considered in this Writ Petition.
5. Having considered the objections raised on the ground of maintainability, having heard the respective counsel on the said question and having regard to the nature of issues which have been referred for consideration by this Constitution Bench, as rightly contended by the learned Solicitor General, we are also convinced that answer to those questions would involve substantial questions of law as to the interpretation of Articles 72, 73, 161 and 162, various Entries in the Seventh Schedule consisting of Lists I to III as well as the corresponding provisions of Indian Penal Code and Code of Criminal Procedure and thereby serious public interest would arise for consideration and, therefore, we do not find it appropriate to reject the Reference on the narrow technical ground of maintainability. We, therefore, proceed to find an answer to the questions referred for consideration by this Constitution Bench.
Citation:  2015(4)Crimes433(SC), 2015(4)MLJ(Crl)645, 2016(1)RCR(Criminal)234, 2015(13)SCALE165
Writ Petition (Crl.) Nos. 48, 185, 150, 66/2014 and 1215/2011 (Under Article 32 of the Constitution of India)
Decided On: 02.12.2015
Appellants: Union of India (UOI)
Respondent: V. Sriharan and Ors.
Hon'ble Judges/Coram:H.L. Dattu, C.J.I., F.M. Ibrahim KalifullaPinaki Chandra GhoseAbhay Manohar Sapre and U.U. Lalit, JJ.

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