05 September 1956
Supreme Court
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HARIPADA DEY Vs THE STATE OF WEST BENGALAND ANOTHER.

Case number: Appeal (crl.) 86 of 1954


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PETITIONER: HARIPADA DEY

       Vs.

RESPONDENT: THE STATE OF WEST BENGALAND ANOTHER.

DATE OF JUDGMENT: 05/09/1956

BENCH: BHAGWATI, NATWARLAL H. BENCH: BHAGWATI, NATWARLAL H. IMAM, SYED JAFFER MENON, P. GOVINDA

CITATION:  1956 AIR  757            1956 SCR  639

ACT: Constitution  of India, Art. 134(1)(c)-Jurisdiction of  High Court-Certificate on mere question of fact no certificate at all--Constitution of India, Art. 136(1)-Special Jurisdiction of the Supreme Court to intervene on mere question of  facts to  be invoked -High Court not to arrogate that function  to itself-Evidence-Prosecution not to be blamed for the  lacuna to adduce evidence by defence.

HEADNOTE: The  High  Court has no jurisdiction  to  grant  certificate under Art. 134(1)(c) of the Constitution on mere question of fact,  and is not justified in passing on such  question  to the Supreme Court for further consideration, thus converting the , Supreme Court into a Court of Appeal on facts. No doubt the Supreme Court, in case of gross miscarriage  of justice  or departure from legal procedure such as  vitiates the  whole  trial,  possesses  the  power  and  has  special jurisdiction   to  intervene  under  Art.  136(1)  of   this Constitution  and also if the findings of fact were such  as were shocking to judicial conscience; but no High Court  can arrogate  that  function to itself because it  finds  itself helpless  to redress the grievance.  Certificate granted  on mere question of fact would be no certificate at all;  High- Court  should refuse such certificates under Art.  134(1)(c) and should ask the parties to approach the Supreme Court  to invoke  its  special jurisdiction under Art. 136(1)  of  the Constitution. The accused and not the prosecution is to be blamed for  the lacuna in the defence in not adducing evidence in support of his contentious, which if forthcoming would have  demolished the case of the prosecution. Narsingh and another v. The State of Uttar Pradesh,  ([1955] 1  S.C.R.  238),  Baladin & Others v.  The  State  of  Uttar Pradesh,  (A.I.R.  1956 S.C. 181) and Sunder  Singh  v.  The State of Uttar Pradesh, (A.I.R. 1956 S.C. 411), referred to.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 86  of

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1954. Appeal under Article 134(1)(C ) of the Constitution of India from  the judgment and order dated the 27th-May 1954 of  the Calcutta High Court in Criminal Appeal No. 158 of 1953. 640 Sukumar Ghose for the appellant D.   N. Mukerjee for P. K. Bose for respondent No. 1. K. L. Arora for respondent No. 2. 1956.  September 5. The Judgment of the Court was  delivered by BHAGWATI  J.-The  Appellant was charged under  Section  411, Indian Penal Code with Dishonestly receiving or retaining in his  possession  one  Hillman Car number  WBD  4514  bearing Engine  and  Chassis  No. A1178482 WSO  knowing,  or  having reason  to  believe  the same to be  stolen  property.   The learned  Presidency Magistrate, Calcutta, convicted  him  of this offence and sentenced him to rigorous imprisonment  for 2 years.  The Appellant took an appeal to the High Court  at Calcutta and a Division Bench of the High Court  constituted by  Mr. Justice Jyoti Prokash Mitter and Mr.  Justice  Sisir Kumar  Sen dismissed the appeal confirming  the   conviction and  sentence passed upon him.  The Appellant filed a  peti- tion  for  leave to appeal to this Court and  that  petition according  to what we are told is the practice obtaining  in the  Calcutta  High  Court  came  before  a  Division  Bench differently  constituted-a Bench constituted by the  learned Chief  Justice  and Mr. Justice S. C.  Lahiri.   This  Bench allowed  the  petition and ordered that  a  certificate  for leave to appeal under article 134(1)(c) of the  Constitution may be drawn up. In an elaborate judgment the learned Chief Justice observed: "In my view a certificate-of fitness ought to issue in  this case, although the question involved is one of fact". After discussing in detail the various circumstances in  the case which did not meet with his approval, he wound up by saying: "In  my view it is impossible not to feel in this case  that there  has not been as full and fair a trial as I  ought  to have been held.  In the circumstances, it appears to me that the petitioner is entitled to have 641 his   case  further  considered  and  since   such   further consideration  can  only be given by the  Supreme  Court,  I would grant the certificate prayed for". Contrary  to  what we had in the previous  case  before  us, viz.,  Criminal  Appeal No. 146 of 1956 (Om Prakash  v.  The State  of Uttar Pradesh), where no reasons were given as  to why  the  Court  exercised its discretion  in  granting  the certificate,   in  this  judgment  we  have   an   elaborate discussion as to why such discretion was being exercised. by the Court.  The reasoning, however, does not, appeal to  us. Whatever  may have been the misgivings 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 bad no jurisdiction to  grant a certificate under article 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.  The mere disability of the High  Court to  remedy this circumstance and vouchsafe a full  and  fair trial  could  not  be  any  justification  for  granting   a certificate  under  article 134(1) (c) and  converting  this Court  into a Court of Appeal on facts.  No High  Court  has the  jurisdiction  to  pass on mere questions  of  fact  for

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further  consideration  by  this Court  under  the  relevant articles  of  the Constitution.  We no  doubt  possess  that power  and in proper cases have exercised it  under  article 136(1).  If there has been a gross miscarriage of justice or a departure from legal procedure such as vitiates the  whole trial  we  would  certainly  intervene  and  we  would  also intervene  if  even the findings of fact were such  as  were shocking to our judicial conscience and grant in such  cases special leave to appeal under article 136(1).  That is, how- ’  ever, a special jurisdiction which we can exercise  under article 136(1), but no High Court can arrogate that function to  itself and pass on to us a matter which in its  view  is purely  one  involving questions of fact, because  it  finds itself  helpless to redress the grievance.  In such a  case, the High Court should 83 642 refuse to give a certificate under article 134(1)(c) and ask the parties to approach us invoking our special jurisdiction under   article  136(1)  of  the  Constitution.    We   are, therefore,  of the opinion that the discretion that  was  so elaborately  exercised  by the Calcutta High Court  in  this case  was wrongly exercised.  The certificate purporting  to have been granted under article 134(1)(c) was no certificate at all and it does not avail the appellant before us. Following our decisions in Narsingh and another v. The State of Uttar Pradesh(1), Baladin & Others v. The State of  Uttar Pradesh(2)   and  Sunder  Singh  v.  The  State   of   Uttar Pradesh(3),  Mr. Sukumar Ghose for the appellant urged  that this was a fit case where we should exercise our  discretion and  grant  the  appellant special  leave  to  appeal  under article  136(1)  of the Constitution.  He pointed  out  that even  though  the appellant had led no evidence  in  defence there were on the record of the case certain documents which if  taken as proved would have been sufficient  to  demolish the  prosecution  case.  These were commented  upon  by  the learned  Chief  Justice in the judgment which  he  delivered when  certificate for leave to appeal under  article  134(1) (c) was grunted by him.  These documents, it was urged, went to show that sometime before the car in question was stolen, an application had been made by the appellant to the  police authorities  in  Chandarnagore for registration  of  Hillman Minx  1951  Model  car which bore the  same  number  on  the engine, chassis and tin-plate as the car in question and  on that application, investigation had been made by the  A.S.I. police, who made his report, the contents of which would  go to establish the case which was put forward by the appellant in  his defence.  It is no doubt true that  the  prosecution has  got to prove its case beyond reasonable doubt  and  the accused  need not open his mouth nor lead any evidence.   If the  prosecution  succeeds  in establishing  its  case,  the conviction  would  follow, but if the prosecution  fails  to discharge the burden which lies upon it to prove the  charge which (1) [1955] 1 S.C.R. 238.     (2) A.I.  R. 1956 B.C. 181.                  (3) A.I.R. 1956 S.C. 411. 643 has  been  framed against the accused he is entitled  to  an acquittal.  In this case both the Courts below held that the prosecution  bad  proved  its case by the  evidence  of  the witnesses who were called including the motor expert, who on applying chemicals discovered on the engine the very  number which  was the number on the stolen car.  On this  state  of the evidence, it was the bounden duty of the appellant if he wanted to prove his defence to adduce evidence in support of

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his  contentions  and if he did not do so, he  had  only  to thank  himself for it.  The prosecution could not be  blamed for  that  lacuna and if both the Courts below went  on  the record  as it stood and came, to the conclusion, finding  it as a fact, that the prosecution had established its case, it could not be urged, as was sought to be done in the judgment delivered  by the learned Chief Justice in the petition  for leave   to   appeal  to  this  Court,  that   evidence,   if forthcoming,   would  have  demolished  the  case   of   the prosecution.  If those who represented the appellant did not take  counsel within themselves and put forward the  defence as  they  should  have  done, there  was  no  blame  on  the prosecution  nor  on the learned Presidency  Magistrate  who tried  the  case and came to the conclusion adverse  to  the appellant.  Whatever sentiment appears to have been imported in  the Matter has been simply out of place and even if  one may  have  a lurking suspicion at the back of his  mind  and might feel that there has not been a full and fair trial  as ought to have been held, that is no justification for  going behind  the concurrent findings of fact reached by both  the Courts  below  to  the  effect  that  the  prosecution   had succeeded  in establishing the guilt of the  appellant.   We see  nothing in this case to warrant an  interference  under article 136(1) of the Constitution.  This application  will, therefore, be rejected and the appeal will stand  dismissed. Bail bond cancelled and the appellant to surrender his bail. 644