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PETITIONER: ACHYUT ADHICARY

       Vs.

RESPONDENT: STATE OF WEST BENGAL

DATE OF JUDGMENT: 12/04/1962

BENCH: KAPUR, J.L. BENCH: KAPUR, J.L. GUPTA, K.C. DAS DAYAL, RAGHUBAR

CITATION:  1963 AIR 1039            1963 SCR  Supl. (2)  47

ACT: Appeal   to  supreme  Court--Certificate  by  High   Court-- Propriety  of--Delay  in delivery of judgment--If  a  proper ground for granting certificate--Constitution of India, Art. 134(1)(c).

HEADNOTE: The appellant. was tried by the Sessions judge and acquitted of the charge of murder.  On appeal the High Court convicted him  and  sentenced  him  to  imprisonment  for  life.   The appellant  applied for and was granted a  certificate  under Art  134  (1)  (c) of the Constitution  for  appeal  to  the Supreme Court on the ground that there was unusual delay  in delivering the judgment of the High Court and that the judg- ment  failed  to deal with certain questions of  fact  which were raised at the hearing of the appeal. Held, that the certificate granted by the High Court was not a  proper certificate.  The mere ground of delay  in  giving judgment  did not fall within the words "fit one for  appeal to  the  Supreme  Court" in Art. 134 (1)  (c).   The  points raised in the appeal before the High Court were questions of fact  and the High Court was not justified in passing  such questions on to the Supreme Court for further  consideration thus converting the Supreme Court into a court of appeal  on facts. Haripada Dev v. State of.  West Bengal, [1956] S C.  R. 639 and Sidheswar Ganguly v. State of West Bengal, [1958] S.  C. R. 749, followed. Banaswmi Parshed v. Kashi Krishna Narain, (1900) L. R. 23 1. A I I and Radhakrishna Ayyar v. Swaminathna Ayyar, (1920) L. R. 48 I. A. 31, referred to.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 115  of 1960. Appeal  from  the  judgment and order  dated  September  18, 1.959,  of the Calcutta High Court in Government Appeal  No. 14 of 1956. 48

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B.   L.  Anand, Ganganarayan Chandra and D.  N.    Mukherjee and P. K. Bose, for the appellant. K.  B.  Bagchi,  S. N. Mukherjee and P.  K.  BOSE   for  the respondent. 1962.  April 12.  The Judgment of the Court was delivered by KAPUR, J.--This is an appeal against the judgment and  order of  the  High  Court  of Calcutta  in  which  a  preliminary objection has been taken that the certificate under Art. 134 (1) (e) is not a proper certificate and should therefore  be cancelled.  A further question would arise as to whether  it is a case in which special leave to appeal should be granted under Art. 136 if we find that the preliminary objection  is well founded. The  appellant  was  tried for murder under s.  302  of  the lndian  Penal Code in the court of the  Additional  Sessions Judge  at Alipore sitting with a jury.  The jury returned  a verdict  of  not  guilty and the  appellant  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 charge to the jury  and  therefore  after consideration  of the evidence it set aside the  verdict  of the jury, allowed the appeal and sentenced the appellant  to imprisonment  for life.  The appellant then applied  to  the High  Court for a certificate under Art. 134 (1)  (c)  which was granted by another Division Bench of the Court which had not heard the appeal. Three  points  were  urged  before  the  Bench  hearing  the applioation  for  certificate; (1) that  there  was  unusual delay  in  delivering the judgment 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                              49 of the evidence in an appeal against the order of  acquittal in  a trial by jury and (3) that as a matter of  fact  there were no such misdirection as caused a failure of justice  or a mistrial and therefore the High Court was not entitled  to examine  the  evidence.   The learned  Judges  were  of  the opinion  that 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               paragraph  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               Judges  of  the  Division  Bench  owed  it  to               themselves  to  come to a  decision  on  those               points.  In the arguments 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 petitioner is  entitled  to  a               certificate  under Article 134 (1) (c) of  the               Constitution on that ground". This  is  the ground on which the certificate  was  granted.

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This Court has had occasion to consider the grounds on which a  certificate can be granted under Art.134 (1) (c)  of  the Constitution. hi Haripada Dey v. The State of West Bengal(1) it was held that the High Court has no jurisdiction to grant (1)  [1956] S.C. R 639, 641. 50 a  certificate under Art. 134 (1) (c) on a mere question  of fact  and it is not justified in passing on such a  question to   the  Supreme  Court  for  further  consideration   thus converting  the  Supreme  Court into a Court  of  Appeal  on facts.  Bbagwati J., there said:-               "Whatover may have been the misgiving" of  the               Learned Chief Justice. in the matter of a full               and fair trial not having been held we are  of               the  opinion  that he had no  jurisdiction  to               grant a certificate under Art. 134(1) (c) in a               case  where  admittedly  in  his  opinion  the               question  involved  was one of  fact-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               case of the Appellant on facts".               In  a  later case Sidheswar  Granguly  v.  The               State  of  West Bengal(1) the  High  Court  of               Calcutta  granted a certificate on the  ground               that  because of the summary dismissal of  the               appeal   the  appellant  did  not   have   the               satisfaction of having been fully heard and it               was held by this Court that was no ground  for               the  grant  of  a  certificate  and  that   no               certificate  should  be  granted  on  a   mere               question of fact.  In that case Sinha J.,  (as               he then was) said ;-               "This   Court   has  repeatedly   called   the               attention of the High Courts to the legal pos-               ition  that  under  Art. 134 (1)  (c)  of  the               Constitution,  it is not a case  of  "granting               leave" but of "certifying" that 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 determination by this Court when there are               no               (1)   [1958] S. C. R. 749.               51               complexities  of  law involved  in  the  case,               requiring the authoritative interpretation  by               this Court." In the present case the High Court has granted leave on  the mere ground that there was delay 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  judgment.  Those points ’were all  questions  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

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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  (1) and Radhakrishna  Ayyar  v.  Swaminatha Ayyer(2)  the Privy Council in construing s. 109 (c) of  the Code  of Civil Procedure pointed out that under that  clause for a certificate 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 led 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 (1) [1900] L.R. 28 1 A. 11 (2) (1920) L.R. 48 I. A. 31. 52 because  in its opinion the judgment of the court  delivered by another Bench suffers from an error in regard to  certain facts.  In our view the certificate granted by the  Calcutta High  Court  was  not  a  proper  certificate  and  must  be 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 and on that material if leave were to be granted the appeal could be properly argued.  We have heard counsel  for the appellant and we see no reason to grant special leave in this case.  The appeal is therefore dismissed. Appeal dismissed.