http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: STATE OF UTTAR PRADESH

       Vs.

RESPONDENT: R. B. AGARWAL

DATE OF JUDGMENT: 04/02/1966

BENCH: GAJENDRAGADKAR, P.B. (CJ) BENCH: GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N. SHAH, J.C. SIKRI, S.M. RAMASWAMI, V.

CITATION:  1966 AIR 1135            1966 SCR  (3) 462

ACT: Constitution  of  India Art.  134(1)(c)-High  Court  acquits person  convicted  by trial  court-State’s  application  for certificate, if competent.

HEADNOTE: If an accused person is convicted by the trial court and  on appeal  to the High Court, his conviction is set  aside  the State   is  entitled  to  apply.  to  the  High  Court   for certificate  under  Art. 134(1) (c).   Such  an  application cannot  be  rejected  In limine on the  ground  that  it  is incompetent;  it  has to be entertained and  considered  and decided on the merits. [465 D] The  relevant  words  in Art. 134(1)(c) are  wide  in  their sweep.  They authorise an application for a certificate from any  judgment,  final  order,  or  sentence  in  a  criminal proceeding of a High Court. The sweep of the relevant words used in Art. 134(1)(c) being very  wide,  it is not necessary to look  for  any  separate provision  in the Constitution which would correspond to  s. 417 code of Criminal Procedure. [464] Observations  contra  in S. Majumdar v. A.  Brahmachari  and Others,  Cr.  A.  No. 21 of 1960, dt.  14-9-1964  and  State Government,  Madhya Pradesh v. Ramakrisna  Ganpatrao  Limsey and others A.I.R. 1954 S.C. 20, disapproved.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 178 of 1965. Appeal  by special leave from the judgment and  order  dated August 26, 1965 of the Allahabad High Court (Lucknow  Bench) at Lucknow in S. C. Appeal No. 85 of 1965. O.P. Rana, for the appellant. R.   K. Garg, for the respondent. The Judgment of the Court was delivered by Gajendragadkar,  C. J. If an accused person is convicted  by the  trial  court,  but  on appeal  to  the  High  Court  is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

acquitted,  can  the State move the High  Court  under  Art. 134(1)(c)  of  the Constitution for a certificate  that  the case,  in  question is a fit one for appeal to  the  Supreme Court?   That  is the short question which  arises  in  this appeal by special leave. The  respondent R. B. Agarwal was committed to the  sessions for  trial by the Judicial Officer, Lucknow  under  sections 467 and 471 of the Indian Penal Code.  The learned Assistant Sessions Judge who tried his case, dropped the charge  under section  471,  but convicted the respondent  under  S.  467, I.P.C. and sentenced  463 him  to suffer rigorous imprisonment for five years  and  to pay  a:  fine  of Rs. 10,000/- and  in  default  to  undergo further rigorous, imprisonment for a period of two years. The respondent challenged the. said order of conviction  and sentence  by preferring an appeal before the High  Court  of Judicature  at  Allahabad, Lucknow Bench.   The  High  Court allowed  the  respondent’s appeal, set aside  the  order  of conviction  and sentence imposed on him by the trial  court, and  directed that he should be acquitted.   The  appellant, the  State of Uttar Pradesh, then applied to the High  Court for a certificate under Art. 134(1)(c) of the  Constitution. The  High  Court has rejected the said  application  on  the ground  "that  in view of the latest  pronouncement  of  the Supreme   Court  in  S.  Majumdar  v.  A.  Brahmachari   and Others(1), Article 134 does not provide for an appeal to the Supreme  Court  from  an order of  acquittal  by  the,  High Court".   It  is  this  order  refusing  to  entertain   the appellant’s  application for certificate on the ground  that it   is  incompetent  under  Article  134(i)(c),  which   is challenged before us by the appellant in the present appeal. Mr.  Rana for the appellant contends that the words used  in Art.  134(1)(c) are plain and unambiguous, and they  do  not justify the view taken by the High Court that it is not open to  the State to move the High Court for a certificate in  a case  where  the  High  Court has set  aside  the  order  of conviction and sentence passed by the trial court against an accused  person.  Article 134(1)(c) provides that an  appeal shall  lie  to the Supreme Court from  any  judgment,  final order  or sentence in a criminal proceeding of a High  Court in  the territory of India if the High Court certifies  that the  case is a fit one for appeal to the Supreme Court.   It will  be  noticed  that in the present appeal,  we  are  not concerned  with the question as to whether  the  application made by the appellant for a certificate should be granted or not;  that is a part of the merits of the enquiry which  the High  Court  will  have  to hold in  case  we  come  to  the conclusion  that the High Court was in error in  taking  the view  that  the  application  made  by  the  appellant   was incompetent.   The stage to consider the merits of the  said application  can arise only if and after the application  is held to be competent. Now  the relevant words in Art. 134(i)(c) are wide in  their sweep.  They authorise an application for a certificate from any  judgment,  final  order,  or  sentence  in  a  criminal proceeding  of a High Court.  It is difficult to see how  an order  of  acquittal passed by the High Court in  an  appeal preferred  before it by convicted accused,person  cannot  be said  to  be  a  judgment, or  final  order  in  a  criminal proceeding  of  the High Court.  Therefore, on  the  plain,. words  of  Art.  134(1)(c),  we  see  no  escape  from   the conclusion (1)  Criminal Appeal No. 21 of 1960 decided on September 14, 1964.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

464 that  if an accused person is convicted by the  trial  court and  on appeal, the High Court sets aside the said order  of conviction,  it would be competent to the State to apply  to the  High Court for certificate under Art. 134(1)(c) of  the Constitution. Art.  134(1)(a) and (b) confer a right of an appeal to  this Court, whereas  Art.  134(i)(c) confers  a  right  on  the aggrieved  party to make an application for  a  certificate; and  it  is  for  the High Court  to  consider  whether  the certificate  of  fitness  should be  issued  or  not.   Art. 134(1)(c)  does  not, therefore, give the State a  right  to move  this  Court by way of an appeal against the  order  of acquittal passed by the High Court in appeal.  Nevertheless, it  has a right to move the High Court for a certificate  in that  behalf.  In our ,opinion, this position is  plain  and unambiguous. It,  however, appears that in The State  Government,  Madhya ,Pradesh  v.  Ramakrishna Ganpatrao Limsey and  Others  (1), this Court has made certain observations which are likely to create .an impression that an application for a  certificate would  be incompetent in regard to cases where an  order  of conviction passed by ’the trial Court has been set aside  by the  High Court on appeal.  The said case had come  to  this Court  under  Art. 136 by special leave, and on  the  merits this Court came to the conclusion that no case had been made out for interference by this Court with the order passed  by the High Court which was under appeal.  That shows that the question  as  to whether an application  for  a  certificate can  be made by the State against an order of  acquittal  by ,the High Court on appeal, did not fall to be considered  at all.   Even  so, incidentally, this Court  has  referred  to Article 134 and has observed that Art. 134 does not  provide for an appeal from a judgment, final order, or sentence in a criminal proceeding of a High Court if the High Court has on appeal reversed an order of conviction of an accused  person and  has ordered his acquittal.  In this connection, it  has also  been  observed  that  there is  no  provision  in  the Constitution  corresponding  to  s.  417  of  the  Code of Criminal  Procedure  and  such an order  is  final,  subject however  to the over-riding powers vested in this  Court  by Art. 136 of the Constitution.  With respect, the fact  that no provision has been made in the Constitution which may  be said  to  correspond  to s. 417, Cr.   P.  C.,  is  of  no significance  in  view of the fact that the words  used  in Art. 134(1)(c) are wide enough to take in appellate  ,orders of  acquittal passed by the High Courts while  dealing  with appeals brought before them by accused persons who are  con- victed  by the trial courts.  As we have already  indicated, the  sweep of the relevant words used  in  Art.  134(1)(c) being  very  wide, it is hardly necessary to  look  for  any separate   provision   in  the  Constitution   which   would correspond to s. 417, Cr.  P. C. Therefore, 1 A.I.R. 1954 S.C. 20.  465 we do not think that the observations made by this Court  in Limsey’s case(1) can be said to represent correctly the true legal position as to the scope and effect of Art.  134(i)(c) of the Constitution. In  Shantiranjan  Majumdar’s case(2) this  Court  was  again dealing with an application brought before it under Art. 136 by  special  leave,  and in considering the  merits  of  the appeal, incidentally, reference has been made to the earlier decision  the  Court  in Limsey’s case(1) and  it  has  been observed  that  according to the said decision there  is  no

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

provision  in the Constitution corresponding to s. 417,  Cr. P.  C.  and, therefore, the order of acquittal made  by  the High  Court  is final, subject however  to  the  over-riding powers  of  this Court under Act. 136 of  the  Constitution. What  we have said about the relevant observations  made  in Limsey’s case(1) applies equally to the observations made in Shantiranjan Majumdar’s case(2). In  our opinion, therefore, the true legal position is  that if an accused person is convicted by the trial court and  on appeal  to the High Court, his conviction is set aside,  the State  is  entitled  to  apply  to  the  High  Court  for  a certificate  under  Art.  134(1)(c).   Such  an  application cannot  be  rejected  in limine on the  ground  that  it  is incompetent;  it  has to be entertained and  considered  and decided on the merits. The  result is the appeal is allowed, the order of the  High Court refusing to grant a certificate on the ground that the application  made  by  the  appellant  in  that  behalf   is incompetent,  is  set aside and it is remitted to  the  High Court for disposal in accordance with law. After  we granted special leave to the appellant to file  an appeal against the impugned order refusing to entertain  the appellant’s  application for a certificate, as a  matter  of precaution, to save limitation, the appellant has also filed an  application  for special leave to appeal to  this  Court against  the  appellate decision of the High  Court  on  the merits.  We cannot and do not propose to deal with the  said application,  because 0.21 r. 2 of the Supreme  Court  Rules provides,  inter  alia,  that where an appeal  lies  to  the Supreme Court on a certificate issued by the High Court,  no application to the Supreme Court for special leave to appeal shall  be entertained unless the High Court has  first  been moved and it has refused to grant a certificate.  We  would, therefore,  direct  that the application for  special  leave filed  by  the appellant should stand over until  the  final decision by the High Court on the merits of the  appellant’s application  for certificate which we are remitting  to  the High Court for decision in accordance with law. Appeal allowed. (1) A.I.R. 1954 S.C. 20. (2) Cr.  App.  No. 21 of 1460 dt.  Sept. 14 1964 466