Whether the Special Leave Petition is Maintainable in the Hon’ble

Supreme Court of Indiana

It is humbly submitted before the Hon'ble court that the present SLP filed by the
Petitioner is maintainable in the SC [hereinafter as SC] under Art 136 of the
constitution of Indiana.

• If the SC does not intervene, it will result in gross injustice and that, miscarriage of
justice has already been occurred, by the judgement of High court who has convicted
Rohan for the with complete disregard of fundamental right of protection against
arrest and detention.

• Article 136 of the constitution elucidates that special leave to appeal by the SC -
This, SLP is maintainable as, firstly the appellant has 'LOCUS STANDI' to approach the
Honourable SC. Secondly, the matter involves substantial question of law of general
public importance. Thirdly, grave injustice has been done.

• It is humbly submitted before this Honourable court that the appellant has locus
standi to approach SC in the present case. Art-136 of the constitution is couched in
the widest phraseology.(Nihal Singh & Ors v. State of Punjab, AIR 1965 SC26)

The discretion, conferred by Article 136 is wide enough to permit Supreme Court to
interfere even on facts in suitable cases, if the approach of courts below had resulted
in grave miscarriage of justice. In the instant case since, the findings of the below
courts being preserve, conviction of ap pellant was reversed.(Ananda Poojary v State
of Karnataka, (2015) 1 SCC 235: 2014 (10) SCJ 174. Ananda Poojary v State of
Karnataka, (2015) 1 SCC 235: 2014 (10) SCJ 174)

Therefore A moved a petition in the Supreme Court challenging the constitutional

validity of these proceedings vis-a-vis Article 21. In PSR Sadhanantham v
Arunachalam, the main question to consider was: Did the brother of the deceased
have locus standi to file the appeal? The Supreme Court refused to hold that the
brother of the deceased could be regarded as an "officious meddler" who had no
business nor grievance when the commission of a grievous crime was going
unpunished. Article 136 is a "special jurisdiction"; it is a "residuary power"
"extraordinary in its amplitude". The Court advocated a cated a liberalisation
beralisation of the traditional, narrow, rule of locus standi.

This case establishes the position that the powers o the Supreme me Court in appeals
under Article 136 are not restricted by the appellate provisions contained in the
Criminal Procedure Code, or any other statute. When exercising appellate jurisdiction,
the Supreme Court has power to pass any order.(449. Delhi Judicial Service
Association v State of Gujarat, (1991) 4 SCC 2176: (1991) 4 SCC4 Chandrakant Patil
v State, AIR 1998 SC 1165: (1998) 3 SCC 38.)

This court jurisdiction is limited only by its discretion. It is pertinent to note that the
scope of art 134 providing appeals to the SC in criminal matters is limited whereas art
136 Is very broad based and confers discretion on the court to hear "in any cause or
matter". Therefore, criminal appeals may be brought to the SC under art 136 when
these are not covered by art 134 (Sadhu singh v. Pepsu, AIR 1954SC 271)

The jurisdiction conferred under art 136 on the SC is corrective one & not a
restrictive one and can be invoked when a question of law of general public
importance arises, by filing Special Leave Petition.

1.3.1 The power has been held to be plenary, limitless(A.V. Papayya Sastry v.
Government of Andhra Pradesh, AIR 2007 SC 1546) , adjunctive and unassailable.
(Zahira Habibullah Sheikh v. State of Gujarat, AIR 2004 SC 3467) The Supreme Court
can use the powers under Article 136 to impart justice and remedy any injustice(N.
Suriyakala v. A. Mohandoss, (2007) 9 SCC 196). The Supreme Court with regard to
scope of Article 136 held that it is a residual power which enables the Supreme Court
to interfere with the judgement or order of any court or tribunal in India in its
discretion(N Suriyakala v. A Mohan Doss & ors. (2007) 9 SCC 196).

In Ganga Kumar v. State of Bihar, the Supreme Court has held that it is open to the
Supreme Court to interfere with the findings fact by the High Court if the High Court
has acted perversely or otherwise improperly(Ganga Kumar V. State of Bihar, AIR
2005 SC 3123)

• A duty is enjoyed upon the SC to exercise its power by setting right the illegality in
the judgements, it is well-settled that illegality must not be allowed to be
perpetrated & failure by the SC to interfere with the same would amount to allowing
the illegality to be perpetuated.(Pawan kumar v. State of Haryana, (2003) 11 SCC 241
(SC); see also H.M. Servai, constitutional law of India (4" Ed. Vol.I 2010))

• Article 136 is the residuary power of SC to do justice where the court is satisfied
that there is injustice.(C.C.E. V. Standard motor products AIR 1989 1298 SC 1298, see
also H.M. Seervai, constitutional law of India((4" Ed. Vol.II 2010)) The principle is that
this court would never do injustice nor allow injustice being perpetrated for the sake
of upholding technicalities.(Janshed hormusji wadia v. Board of Trustees, Port of
Mumbai, (2004)3SCC 214(SC))
• In the instant matter, the right to marry is violated by the state also the constitution
validity of Section 375 of Indiana penal code is not a gender neutral which is a matter
of general public importance and therefore, calls for intervention by the SC , as it has
cause unnecessary harassment of Rohan convicting him under such a heinous crime
where a minimum punishment of 10 years is given which may exceed to even life
imprisonment. The principle is that this court would never do injustice nor allow
injustice being perpetrated for the sake of upholding technicalities(Janshed Hormusji
Wadia v Board of Trustees, Port of Mumbai (2004)3 SCC 214.)

The expression "substantial question of law" is not defined in any legislation.

Nevertheless, it has acquired a definite connotation through various judicial
pronouncements. A Constitution Bench of the Apex Court, while explaining the
import of the said expression, observed that:

"The proper test for determining whether a question of law raised in the case is
substantial would, in our opinion, be whether it is of general public importance or
whether it directly and substantially affects the rights of the parties and if so
whether it is either an open question in the sense that it is not finally settled by this
Court or by the Privy Council or by the Federal Court or is not free from difficulty or
calls for discussion of alternative views."

The court has imposed on itself a restriction that before invoking the jurisdiction of
the court under Article 136 , the aggrieved party must exhaust any remedy which
may be available under the law before the lower appellate authority or the High
Court (Nirma Limited vs Lurgi Lentges Energietechnik Gmbh (2002). 5 SCC 520 : AIR
2002 SC 3695 ). In the present case the petitioner has exhausted all the alternative
remedies for the protection of their legal and constitutional rights and now have
ended up on the gates of the Supreme Court and by the present SLP the petitioners
claim for protection of their rights.(MI builders (P) Itd. v. Radhey Shyam Sahu, A.I.R.
1999 S.C. 2468). It is an exceptional and extraordinary power,(Dhakeshwari Cotton
Mills v. C.I.T., A.I.R. 1955 S.C. 65.) of a residuary and reserve nature(Durga Shankar
Mehta v. Thakur Raghunath Singh, A.I.R. 1954 S.C. 520.) and, therefore, the province
of its exercise cannot be determined exhaustively. Therefore the petitioner contends
that the SLP should be maintainable as the petitioners have exhausted all the
alternative remedies.(Haryana State Industrial coprn. v. Cork mig. Co., A.I.R. 2007 8
S.C.C. 120.)

The limitation on exercise of the discretionary powers under Article 136 of the
Constitution has been laid down by the Supreme Court itself(Kunhayammed v. State
of Kerala, AIR 2000 SC 2587). In Kunhayammed and Others v. State of Kerala and
Another(Kunhayammed and Others V. State of Kerala and Another, (2000) 6 SCC
359), it was held that a petition seeking grant of special leave to appeal may be
rejected for several reasons, some of which are as follows:
(i) If the Petition is barred by time;
(ii) If the Petition is presented in a defective manner;
iii) The petitioner has no locus standi to file the petition;
(iv) The conduct of the petitioner disentitling him to any indulgence by the court;
(v) The question raised by the petitioner for consideration by this Court being not fit
for consideration or deserving being dealt with by the Apex Court;

It is humbly submitted In the instant case, it can be observed that the petitioner has no
grounds on which the instant petition for special leave could be rejected. The
questions raised by the Appellants involve substantial questions of law, as would be
shown in the subsequent submissions, and the same requires to be adjudicated by this
Hon'ble Court.