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PETITIONER: NAR SINGH AND ANOTHER

       Vs.

RESPONDENT: THE STATE OF UTTAR PRADESH.

DATE OF JUDGMENT: 05/05/1954

BENCH: BOSE, VIVIAN BENCH: BOSE, VIVIAN MUKHERJEA, B.K. HASAN, GHULAM

CITATION:  1954 AIR  457            1955 SCR  243  CITATOR INFO :  R          1955 SC 778  (15)  F          1956 SC 181  (13)  F          1956 SC 411  (1)  F          1956 SC 757  (3)  F          1958 SC  22  (6)  F          1960 SC 289  (18)  RF         1965 SC1467  (6,12)  RF         1989 SC 653  (9)

ACT: Constitution of India-Articles 134(1)(c) and 136(1)-certifi- cate  by  High Court wrongly granted  under  art.  134(1)(c) under  wrong  view  of law-Interference  by  Supreme  Court- Special Leave under art. 136(1).

HEADNOTE: Out  of 24 persons originally tried under  sections  302/149 etc.   I.P.C.  only three were ultimately convicted  by  the High Court.  The High Court however by mistake convicted  N, one  of  the  three, whom it meant  to  acquit.   Later,  it communicated  its mistake to Government.  Government  passed orders  remitting  the sentence mistakenly passed on  N  and directed  his  release.   N  and  the  other  two   convicts presented  an  application  under article  134(1)(c)  for  a certificate.   The  High Court granted a  certificate  to  N considering  that  otherwise  the stigma of  the  charge  of murder might affect him adversely in the future.  As regards the  other two, there was nothing in their cases to  warrant the issue of a certificate but the High Court granted them a certificate  thinking  that it was bound to  do  so  because article  134(1)(c)  speaks  of a "case" and  the  only  case before it was the appeal as a whole. Hold, (1) that the view of the High Court was wrong  because the word "case" used in article 134(1)(c) means the case  of each individual person. (2)  That  the High Court had misdirected itself  about  the law in respect of the two convicts and did not exercise  the discretion  vested  in  it thinking either that  it  had  no discretion in the matter or that its discretion was fettered and  therefore  the Supreme Court having general  powers  of judicial superintendence over all Courts in India was  bound

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to interfere. 239 (3)  The  appeal must fail as the certificate under  article 134(1)(c)  was wrongly granted and in view of the facts  the case  was not a proper one for special leave  under  article 136(1). Subhanand  Chowdhury v. Apurba Krishna Mitra ([1940]  F.C.R. 31),  Banarsi Parshad v. Kashi Krishna (28 I.A. 11  at  13). Radhakrishna  Ayyar v. Swaminatha Ayyar (48 I.A. 31 at  34), Radha Krishn Das v. Rai Krishn Chand (28 I. A. 182 at  183), Swaminarayan  Jethalal v. Acharya  Devendraprasadji  (A.I.R. 1946 P.C. 100, 102), Bhagbati Dei v. Muralidhar Sahu (A.I.R. 1943  P.C.  106,  108) and Brij Indar Singh  v.  Kanshi  Ram (I.L.R. 45 Cal. 94, 107) referred to.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 4 of 1952. Appeal under Article 134(1)(c) of the Constitution of  India from the Judgment and Order dated the 7th May, 1951, of  the High Court of Judicature at Allahabad in Criminal Appeal No. 350 of 1950 arising out of the Judgment and Order dated  the 9th  March,  1950, of the Court of the  Additional  Sessions Judge,  Etah in Sessions Trials Nos. 127 of 1949 and  10  of 1950. S.   P. Verma for the appellant. C.   P. Lal for the respondent. 1954.  May 5. The Judgment of the Court was delivered by BOSE J.-Twenty-four persons, among them the two  appellants, were  tried  for offences under sections  148,  307/149  and 302/149, Indian Penal Code.  Sixteen were acquitted and  the remainmg eight were convicted.  On appeal to the High  Court five more were acquitted and the only ones whose convictions were  upheld were the two appellants, Nar Singh  and  Roshan Singh, and one Nanhu Singh. By a curious misreading of the evidence this Nanhu Singh was mixed  up  with Bechan Singh.  What the  High  Court  really meant  to  do was to convict Bechan Singh and  acquit  Nanhu Singh.   Instead  of that they acquitted  Bechan  Singh  and convicted  Nanhu Singh.  As soon as the learned  High  Court Judges  realised  their mistake they communicated  with  the State  Government and an order was thereupon passed by  that Government remitting the sentence mistakenly Passed on Nanhu and directing that he be released. 240 This  occasioned an application under article 134(1) (c)  of the  Constitution by Nanhu Singh and the two appellants  Nar Singh  and Roshan Singh for a certificate.  The  High  Court rightly considered that the certificate should issue in  the case  of Nanhu Singh because, despite the remission  of  his sentence  by  the  State Government  and  his  release,  his conviction on, among other things, a charge of murder  still stood, and the High Court, understandably, thought that  the stigma of that might affect him adversely in the future.  As regards  the other two there was nothing in their  cases  to warrant  the  issue of a certificate but  the  learned  High Court Judges thought (wrongly in our opinion) that they were bound to do so because article 134(1) (c) speaks of a " case "  and they considered that the only CC case "  before  them was the appeal as a whole.  That, in our opinion, is  wrong. "  Case  " as used there means the case of  each  individual person.  That would be so even if the trial had been by  the High Court itself but it is even more so on appeal  because,

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though  several  persons  may join in  presenting  a  common memorandum of appeal (if the Rules of the Court in  question so permit), the appeal of each forms a separate " case " for those  purposes.  That is obvious from the fact  that  every person  who  is convicted need not appeal nor  need  several convicts  appeal at the same time under a joint  memorandum; and if it were necessary to send up the " case " as a  whole in   the   sense  which  the  learned  High   Court   Judges contemplate,  it would be necessary to join even  those  who were acquitted so that the " case " (in that sense) could be reviewed in its entirety.  We are clear that that is not the meaning  of  the word in the context of article  134(1)  and that the High Court was wrong in thinking that it was. Having obtained the certificate Nanhu did not appeal and the only  ones who have come up here are the two convicts.   Had they  come  up independently and presented  a  petition  for special leave under article 136 their petition would at once have  been  dismissed because there is  nothing  special  in their  cases to justify an appeal under that  article.   The evidence  against  them is clear and it has  been  believed, accordingly,  following  our  usual  rule,  we  would   have rejected the 241 petition  in limine.  But, it was contended on their  behalf that  having  obtained a certificate we have now  become  an ordinary Court of appeal and are bound to hear their case as an  appellate Court both on facts and on law.  Reliance  was placed  on  a  decision of the  Federal  Court  reported  in Subhanand Chowdhary v. Apurba Krishna Mitra(1). We  do  not think the judgment of the Federal Court  can  be applied  to  this case.  It deals with section  205  of  the Government of India Act, 1935, covering a different  subject and does not use the same or similar words. This  Court has general powers of  judicial  superintendence over all Courts in India and is the ultimate interpreter and guardian of the Constitution.  It has a duty to see that its provisions are faithfully observed and, where necessary,  to expound them.  Article 134(1) (c) uses the same language  as article  133(1)  (c).   A  certificate  is,  required  under article 133(1). in each of the four cases set out there  but the  mere grant of the certificate would not  preclude  this Court  from determining whether it was rightly  granted  and whether  the  conditions  prerequisite  to   the  grant  are satisfied.  In the case of clause (c) both of article 133(1) and article 134(1), the only condition is the discretion  of the High Court but the discretion is a judicial one and must be  judicially  exercised along the well  established  lines which  govern  these matters (see Banarsi Parshad  v.  Kashi Krishna  (2); also the certificate must show on the face  of it that the discretion conferred was invoked and  exercised: Radhakrishna Ayyar v. Swaminatha Ayyar (3) and Radha  Krishn Das v. Rai Krishn Chand (4).  If it is properly exercised on well established and proper lines, then, as in all questions where an exercise of discretion is involved, there would  be no interference except on very strong grounds:  Swaminarayan Jethalal v. Acharya Devendraprasadji (5) and Bhagbati Dei v. Muralidhar  Sahu (6).  But if, on the face of the order,  it is  apparent  that  the Court  has  misdirected  itself  and considered that its discretion was      (1) (1940] F.C.R. 31.    (4) 28 I.A. 182 at 183.      (2) 28 I.A. 11 at 13.    (5) A.I.R. 1946 P.C. 100, 102.      (3) 48 I.A. 311 at 34.   (6) AI.R. 1943 P.C. 106, 108      31 242 fettered  when  it was not, or that it had  none,  then  the

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superior  Court must either remit the case or  exercise  the discretion  itself  : Brij Indar Singh v.  Kanshi  Ram  (1). These  are  the  well  known lines  on  which  questions  of discretion  are dealt with in the superior Courts  and  they apply  with  as  much force to  certificates  under  article 134(1) (c) as elsewhere. In  the present case, the learned High Court Judges  thought they  had no option.  They misdirected themselves about  the law  and  as a consequence did not exercise  the  discretion which  is vested in them.  They are quite clear as  to  what they would have done if, in their judgment, the law had left them scope for the exercise of any discretion, for they say- " Ordinarily no certificate can be granted to them as  there is nothing of an exceptional nature in their cases.   " We  hold therefore that the certificate was wrongly  granted to  the  appellants and will treat their case as  one  under article 136(1) for special leave. Regarded  from  that angle, this is not a  proper  case  for special  leave.  The High Court gives a clear  finding  that there  were  more than five persons and  believes  the  eye- witnesses  who identify the two appellants.  The  mere  fact that   only   two  out  of  the  band  of   attackers   were satisfactorily  identified does not weaken the force of  the finding  that  more  than five were involved.   The  use  of section 149, Indian Penal Code, was therefore justified  and the convictions are proper. We see no reason to interfere with the sentences.  A  number of  persons  joined in an attack at two in  the  morning  on helpless  persons who were asleep in bed.  At least  one  of the assailants was armed either with a gun or a pistol.   He shot  one man dead and attempted to murder another, and  the band  looted  their property.  The sentences of  two  years, four  years and transportation are therefore not severe  and call for no review. The appeal fails and is dismissed. Appeal dismissed. I.L.R. 45 Cal. 94,107. 243