05 May 1950
Supreme Court


Case number: Appeal (crl.) 2 of 1950






DATE OF JUDGMENT: 05/05/1950


CITATION:  1950 AIR  169            1950 SCR  453  CITATOR INFO :  D          1953 SC 415  (10)  RF         1954 SC  20  (5)  F          1954 SC  23  (13)  R          1954 SC 271  (11)  R          1956 SC 217  (31,35,44)  R          1958 SC  61  (8,9)  R          1959 SC 633  (5)  F          1961 SC 100  (2)  RF         1961 SC1708  (9)  R          1964 SC1645  (9)  R          1970 SC 668  (2)  RF         1976 SC 758  (8)  F          1977 SC 472  (5)  R          1986 SC 702  (12)  R          1988 SC1883  (245)  D          1992 SC1277  (39,101)

ACT:      Constitution  of India, Art. 136 (1)--Special leave  to appeal-Granting    of    leave--Guiding     Principles-Final hearing--Nature of.

HEADNOTE:    The Supreme Court will not grant special leave to appeal under  Art. 136 (1) of the Constitution unless it  is  shown that  exceptional  and  special  circumstances  exist,  that substantial  and grave injustice has boon done and the  case in  question  presents  features of  sufficient  gravity  to warrant a review of the decision appealed against. The  view that once an appeal has been admitted  by  special leave the entire case is at large and the appellant is  free to  contest a11 the findings of fact and raise  every  point which  could  be raised in the High Court  is  wrong.   Only those points can be urged at the final hearing of the appeal which  are  fit to be urged at the  preliminary  stage  when leave to appeal is asked for. Ibrahim v. Rex  ([1914] A.C. 615) referred to.



JUDGMENT:     APPEAL from the High Court of Judicature at East Punjab: Criminal Appeal No. II of 1950.     This was an appeal by special leave from a judgment  and order  of the High Court of Judicature for the  Province  of East  Punjab at Simla (Falshaw and Soni JJ.) dated the  23rd November, 1949, in Criminal Appeal No. 367 of 1949 upholding the  conviction of the appellant on a charge of  murder  and confirming a sentence of death passed on him by the Sessions Judge of Ferozepore.     Jai Gopal Sethi (H. J. Umrigar, with him) for the appel- lant.     Basant  Kishan Khanna, Advocate-General of  East  Punjab (S. M. Sikri, with him) for the respondent.     1950.  May 5. The judgment of the Court was delivered by     FAZL  AL/J.--This  is  an appeal  by  one  Pritam  Singh against  the decision of the High Court of Punjab at  Simla, upholding his conviction on the charge of 454 murder  of  one Buta Singh and confirming  the  sentence  of death  passed  on him by the Sessions Judge  of  Ferozepore. The  prosecution case, which has been found to  be  substan- tially  true by both the trial judge and the High Court  may be shortly stated as follows.     On the 28th December, 1948, Pritam Singh had made  inde- cent overtures to one Punni, wife of Kakarra Chamar, who had been  brought into the village by Buta Singh, the  deceased, about  10 or 12 years ago. Buta Singh, on learning  of  this incident, spoke to Pritam Singh, but finding that his  atti- tude  was  uncompromising, he advised Kakarra to go  to  the police  station  to report the matter.   On  the  next  day, while  Kakarra was going to the police station,  Mal  Singh, the first prosecution witness in the case, brought him  back telling him that Pritam Singh had apologized and the  matter should  not  be pursued.  On the 30th December, at  about  5 p.m.,  just  when Buta Singh came out of his  house,  Pritam Singh  came up with a double barrelled 12-bore gun and  shot him  in  the abdomen, and  Buta  Singh  died  a  short  time thereafter.  Shortly   after   the    occurrence,     Punjab Singh and Nal Singh, who had both witnessed the  occurrence, went   to  the  police  station at  Abohar, which  is  at  a distance  of  13  miles from the place  of  occurrence,  and lodged  the first information report regarding  the  murder. In  this report, Punjab Singh reported the facts as  already stated,  but he also added that Pritam Singh was drunk  when he  fired the gun and his younger brother, Hakim Singh,  who was also drunk was standing at a short distance from him and shouting  "Kill, don’t care."  None of the  other  witnesses however supported Punjab Singh as to the part attributed  by him   to Hakim Singh or as to the drunken condition  of  the appellant or Hakim Singh, and the police after due  investi- gation of the case sent up a charge sheet against the appel- lant  only.  The appellant was thereafter put on  his  trial before  the Sessions Judge of Ferozepore.  The learned  Ses- sions  Judge,  after hearing the prosecution  witnesses,  of whom five were eye-witnesses, viz., Punjab Singh, his broth- er Mitta Singh, Mal Singh, Nikka Singh (brother of     455 Singh),  and Mst. Phoolan, mother of the deceased,  came  to the  conclusion,  in  agreement with 4  assessors  who  were present at the trial, that the version given by the prosecu- tion  witnesses was substantially true.  In support  of  his conclusion, he referred to the following facts among  others :--(1)that  the first information report had been lodged  at



the  police station without any delay, (2)that the names  of at  least 4 of the alleged eye-witnesses were  mentioned  in the report, and (3) that no sufficient reason had been shown as to why the prosecution witnesses should have conspired to falsely  implicate the accused in a murder case, if  he  had been  innocent.   The High Court on appeal agreed  with  the Sessions  Judge,  and the learned Judge  who  delivered  the judgment  of the High Court observed as follows in the  con- cluding part of his judgment :--"I have given the case every consideration  and  I have come to the conclusion  that  the learned  Sessions Judge was right in holding that  the  case against  the  appellant had been  proved  beyond  reasonable doubt."     The  appellant  thereafter  obtained  special  leave  to appeal  to  this Court, and Mr. Sethi, the  learned  counsel appearing for him, has  in support of the appeal,  addressed to  us very elaborate arguments to show that the  conclusion arrived  at  by  the Courts below is not  correct.   He  has argued  that the alleged eye-witnesses were intimately  con- nected with each other and with the deceased, that they  and the accused belonged to two mutually hostile factions,  that these  witnesses  had made discrepant statements as  to  the respective  places from where they claimed to have seen  the occurrence, some of them making discrepant statements  about their own position before the police officer who drew up the plan  of the scene of occurrence and before the trial  Court and also making discrepant statements about the position  of the other witnesses, and that they should not be held to  be truthful  witnesses  inasmuch  as they  had  denied  certain previous statements made by them either before the police or before the Committing Magistrate. Mr. Sethi also put forward the  theory, which has been discredited by both  the  Courts below on grounds which prima facie do not appear to be 456 unreasonable, that the occurrence must have taken place late at  night,  that  there were probably  no  eye-witnesses  to identify the real assailant and that the appellant had  been falsely implicated on account of enmity.     The obvious reply to all these arguments advanced by the learned counsel for the appellant, is that this Court is not an ordinary Court of criminal appeal and will not, generally speaking,  allow facts to be reopened, especially  when  two Courts agree in their conclusions in regard to them and when the  conclusions of fact which are challenged are  dependent on  the credibility of witnesses who have been  believed  by the  trial Court which had the advantage of seeing them  and hearing their evidence.  In the present case. the story  for the prosecution, which is neither incredible nor improbable, is  supported  by  no less than 5  witnesses  including  the mother of the deceased, and their evidence, in spite of  its infirmities,  has impressed 4 assessors and the  two  Courts below,  who, in appraising its reliability, have  given  due weight to certain broad features of the case which,  accord- ing  to them, negative the theory of conspiracy  or  concoc- tion.   In these circumstances, it would be opposed  to  all principles and precedents if we were to constitute ourselves into  a third Court of fact and, after re-weighing the  evi- dence,  come to a conclusion different from that arrived  at by the trial Judge and the High Court.     In  arguing the appeal, Mr. Sethi proceeded on  the  as- sumption  that once an appeal had been admitted  by  special leave,  the entire case was at large and the  appellant  was free  to  contest all the findings of fact and  raise  every point  which could be raised in the High Court or the  trial Court.   This assumption is, in our opinion, entirely unwar-



ranted.  The misconception involved in the argument is not a new  one  and had to be dispelled by the  Privy  Council  in England in Ibrahim v. Rex (1)  in these  words:--"........ the   Board    has  repeatedly   treated   applications  for leave  to  appeal and the hearing of  criminal  appeals  (i) [1914] A.c. 615.     457 as being upon the same footing: Riel’s Case; Ex-parte  Deem- ing.   The  Board  cannot give leave  to  appeal  where  the grounds suggested could not sustain the appeal itself;  and, conversely, it cannot allow an appeal on grounds that  would not have sufficed for the grant of permission to bring it."     The  rule  laid down by the Privy Council  is  based  on sound principle, and, in our opinion, only those points  can be urged at the final hearing of the appeal which are fit to be  urged at the preliminary stage when leave to  appeal  is asked  for,  and it would be illogical  to  adopt  different standards at two different stages of the same case.     It  seems also necessary to make a few general  observa- tions relating to the powers of this Court to grant  special leave to appeal in criminal cases.  The relevant articles of the Constitution dealing with the appellate jurisdiction  of the  Supreme  Court are articles 132 to  136.   Article  132 applies  both  to civil and criminal cases and under  it  an appeal  shall  lie to the Supreme Court from  any  judgment, decree......   or final order of a High Court, whether in  a civil,  criminal  or  other proceeding, if  the  High  Court certifies  that the case involves a substantial question  of law  as to the interpretation of the Constitution.   Article 133  deals with the appellate jurisdiction of this Court  in civil matters only, and it has been drafted on the lines  of sections  109  and 110 of the Civil  Procedure  Code,  1908. Article  134  constitutes the Supreme Court as  a  Court  of criminal appeal in a limited class of cases only, and clear- ly  implies that no appeal lies to it as a matter of  course or  right  except in cases specified  therein.  Article  135 merely provides that the Supreme Court shall have  jurisdic- tion  and  powers with respect to any matter  to  which  the provisions  of article 133 or article 134 do not  apply,  if jurisdiction  and  powers in relation to  that  matter  were exercisable  by  the Federal Court  immediately  before  the commencement  of  the Constitution under any  existing  law. The last article, with which we are concerned is article 136 and it runs thus :--     "136. (1) Notwithstanding anything in this Chapter,  the Supreme Court may, in its discretion, 458 grant  special  leave to appeal from any  judgment,  decree, determination,  sentence  or order in any  cause  or  matter passed or made by any court or tribunal in the territory  of India,   (2)....................     The  points  to be noted in regard to this  article  are firstly, that it is very general and is not confined  merely to criminal cases, as is evident from the words "appeal from any judgment, decree, sentence or order" which occur therein and which obviously cover a wide range of matters; secondly, that  the  words used in this article are "in any  cause  or matter," while those used in articles 132 to 134 are "civil, criminal  or other proceeding," and thirdly, that  while  in articles  132 to 134 reference is made to appeals  from  the High Courts, under this article, an appeal will lie from any court or tribunal in the territory of India.     On  a careful examination of article 136 along with  the preceding article, it seems clear that the wide  discretion-



ary  power with which this Court is invested under it is  to be  exercised sparingly and in exceptional cases on13,,  and as far as possible a more or less uniform standard should be adopted  in  granting  special leave in the  wide  range  of matters which can come up before it under this article.   By virtue of this article, we can grant special leave in  civil cases,   in  criminal cases, in income-tax cases,  in  cases which   come up before different kinds of tribunals  and  in a  variety of other cases.  The only uniform standard  which in our opinion can be laid down in the circumstances is that Court  should  grant special leave to appeal only  in  those cases  where special circumstances are shown to  exist.  The Privy  Council  have  tried to lay down from  time  to  time certain  principles for granting special leave  in  criminal cases, which were reviewed by the Federal Court in  Kapildeo v. The King.   It is sufficient for our purpose to say  that though we are not bound to follow them too rigidly since the reasons, constitutional and administrative, which  sometimes weighed with the Privy Council, need not weigh with us,  yet some  of those principles are useful as furnishing  in  many cases 459 a  sound basis for invoking the discretion of this Court  in granting special leave.  Generally speaking, this Court will not grant special leave, unless it is shown that exceptional and special circumstances exist, that substantial and  grave injustice  has  been  done and that  the  case  in  question presents features of sufficient gravity to warrant a  review of  the decision appealed against.  Since the  present  case does  not in our opinion fulfil any of these conditions,  we cannot  interfere with the decision of the High  Court,  and the appeal must be dismissed. Appeal dismissed. Agent for the appellant:  S.P. Varma. Agent for the respondent:  P.A. Mehta.