Achyut Adhicary v. State of West Bengal

KAPUR, J.--This is an appeal against the j11d· gment and order of the High Court of Calcutta in which a preliminary objection has been ta.ken that tlie certificate under Art. 134 (l) (o) is not a proper certificate and should therefore be caucelled. A further question would arise as to whethe~ it is a caso in which special leave to appeal should be granted under Art. 136 if we find that the prelim-inary objeotion is well founded.

The appellent was tried for murder under s. 302 of the 1 ndian Pi>nal Code in tht> court of the Additions;! Sessions Judge at Alipore sitting with a jury. The jury returned a verdict of no,t guilty and the 1tppella.nt was acquitted. Against that order the State took an appeal to the High Court and the Division Bench found that there was mis-direction in the oharge to the jury and therefore _ after oonsideration of the evidence it set aside the verdict of tho jury, alloweq the appeal ard sen ton· ced the appellant to imprisonment for lift1. The appellant then applied to the High Court fur a certifioate under Art. 13! (l) (o) which Wll.8 gr,mted by another Division Bench of the Court which had not heard the appeal.

Three points were urged before the B·rnoh hearing thfl applioation for oertifica.tt>; (I) that there was unusual delay in delivering the juclgment and the Division Bench hearing the appeal forget to consider many of the question of fact which were raised and argued before it. (2) that the High Court had no power to substitute its own estimate of the evidence in an appeal against the order of 1962 acquittal in a trial by jury and ( 3) that as a matter of fact there were no such misdirection as caused Acl~t Adhica1y v. a failure of justice or a mistrial and therefore the State of H'e.st Bengal High Court was not entitled to examine the evid-ence. The learned Judges were of the opinion that Kl)purJ. there was no substance in points Nos. 2 and 3 but the first points did raise a question of importance:

The learned Chief Justice observed:-·

"The delay in delivering judgment is certainly a very unusual fact, and it may lead . to the result that some of the points which were argued on behalf of the petitioner before . the Division Bench were lost sight of by that learned judges while delivering their judgment.

As already stated, these points have been summarised by the petitioner in that para-graph 18 of the petition. The points raised in that paragraph may or may not be good points, but if these points were. advanced on behalf of the petitioner, the learned Judgas of the Division Bench owed it to themselves to come , to a decision on those points. In the argu- ' ments before us, it is not denied on behalf of "the State that the points which have been summarised in paragraph 18 of the petition were canvassed by the defence Counsel at the hearing of the appeal and having regard to that fact, I am inclined to hold that the pet-J itioner is entitled to a certificate under Arti-

cle 134 (l) (c) of the Constitution on that ground".

This is the ground on which the certificate was granted. This Court has had occa&ion to con-sider the grounds on which a certificate can be granted under Art. 134 (I) ( c) of the Constitution.

In Haripada Dey v. The State of West Benya!(') it was held that the High Court has no jurisdiction to grant

50 SUPREME OOURT ltEPORTS [1963J

1961 a certificate under Art. 134 ( l) (o) on a mere quest- .Jct.pa Adhit".1 ion of fact and it is not justified in passing on suoh

•• a question to the Supreme Court for further con-Stat1 of Wtsl B111gal sideration thus converting the Supreme Court into a.

KaptJ1 • Court of Appeal on facts. Bhagwati J., there said:- "Wha.tuver may have been the misgivings of the Learned Chief Justice in the matter of a full and fair trial not having been held we a.re of the opinion that he had no juriedfo. ti on to grant a certificate under Art. 134(1 ) ( o) in a. case where admittedly in his opinion the question involved was one of fa.ct-where in spite of a full and fair trial not having been vouchsafed to the appellant, the question was merely one of a. further consideration of the ca.se of the Appellant on facts".

In a later case Sidlu,.swar Ganguly v. The Stat.e of West Bengal( 1) the High Court of Calcutta. granted a certificate on the ground that beoauee of the sum-mary dismi1111al of tho appeal the appellant did not have the sa.tiefaction of having beeu fully hea.rd and it was held by this Court that that was no ground for the grant of a. certificate aud that no certificate should be granted on a mere question of foot. In that case Sinha J., (ai> he then was) said ;- "This Court haR repeatedly called the attention of the High Courts to the legal pos· ition that that under Art. 134 (I) (e) of the Constitution, it is not a. case of "granting .l leave'' but of "P.ertifying" tha.t the case is a. fit one for appeal to this Court. ••Certifying" is a. strong word and therefore, it has been repeatedly pointed out that a. High Court is in error in granting a certificate on a. mere question of fact, and that the High Court is not justified in passing on an appeal for dettir-mination by this Court when there are no

(I) [1958] S. C, R. 749.

2 S~C.R. SUPREME OOURT REPORTS 51

complexities of law involved in the case, requiring the authoritative interpretation by this Court.'' Achyul .1.•M"'Y y, Seate 1/W11t Beltfl1l In the present case the High Court has grant-ed leave on the mere ground that there was delay l\a;wJ in delivering the judgment of the court and it may have led to the result that some of the points urged by counsel were lost sight of while delivering judg-ment. Those points were all qnestions of fact.

The High Court observed that the questions which were sought to be raised in the petition might or might not be good points but if those points were advanced the judges "owed it to themselves to come to a decision on those points''.

After the pronouncements of this Court in two judgments it is some what surprising that the High Court should have granted a certificate on the mere ground of delay in pronouncing a judgment and the equally slender ground that some of the questions which were raised were forgotten at the time of the judgment. If the appellant did have any such real grievance it was open to him to apply to this Court under Art. 136 but the mere ground of delay is not a ground on which the High .Court can certify a case to be fit one for appeal to this Court. In Banarsi Parshad v. Kashi Krishna Narain(') and Radhakrishna Ayyar v. Swaminatha Ayyer(') the Privy Council in construing s. 109 ( c) of the Code of Civil Procedure pointed out that under that clause for a certifioa.te to be granted a case had to be of great or wide public importance. A mere ground of delay in giving a judgment does not, in our opinion, fall within the words "fit one for appeal to the Supreme Court" even if it is felt by the High Court that the delay might have ltid to omission to consider arguments on questions of fact and law. It is not open to a High Court to give certificates of fitness under this clause merely

(I) [1900] L:R, 281 A. 11, (2) ( IU20) L.R. 18 I. A. 31,

.... 52 SUPREME OOURT REPORTS [1963)

I

because in its opinion the judgment of the court delivered by another Bench suffers from an error AcA.1"' dJAicary in regard certain facts. In our view the certifi-

•• tu St.U of W1sl Beng•l cate granted by the Calcutta. High Courl; was not

Kap14r J. a proper certificate and must oo cancelled.

It was then urged that special leave should be granted under Art. 136 and the appeal be beard as the record had been printed a!ld on that material if leave were to be granted the .-ppeal oould be properly argued. We have heard counsel for the appellant and we see no reason to grant special leave in this caa11. The appeal is therefore dismissed.

Appeal dismisse,d.

/, 1¥ STATE OF WEST BENGAL

April 12. v.

S. N. BASAK

(J. L. Ku>uR, K. C. DAS GUPTA and

RAGHUBAR DAYAL, JJ.)

Poliu Inv .. tigation-lleport by Police, Enforcement Bra11ch-Motion lo quash-High Court, Po1ur• of-Indian Penal Code 1860 (Act XLV of 1860), aa. 420, 120B--Oode of Criminal Procedure, 1898 (Act V of 1898), 88, 154, 156, 439 and 56/A, I A Sub-Inspector of Police, Enforcement Branch, filed a report before the Police Officer.in-charge of a Police Station alleging that the respondent abng with three others committed offences under ss.420, 120B read with s.420 Indian Penal Code. Thereupon a First Information Report was drawn up and investigation was started. The respondent surrendered before the Judicial Magistrate and he was released on bail. Subsequently he filed an application in the High Court under ss, 439 and 561 A of the Criminal Procedure Code to get the case pending before the .Judicial Magistrate arising out of the