STATE OF ORISSA v. RAMACHANDRA AGARWALLA — 1973 DIGILAW 262 (ORI)

JUDGMENT : R.N. Misra, J. - The State of Orissa has applied for a certificate of fitness for appeal to the Supreme Court as provided under Article 134(1)(c) of the Constitution against the final order passed by one of us (Panda, J.) in Criminal Miscellaneous Case No. 131 of 1973 and the connected matters on applications made u/s 561A of the Code of Criminal Procedure. The consolidated order of this Court is reported in Ramchandra Agarwal v. State 39 (1973) C.L.T. 915. 2. Eight dealers in groundnut oil were individually prosecuted u/s 20(e) of the Forward Contracts (Regulation) Act, 1952 and three separate instances of forward contract were picked up as the subject matter of prosecution. The learned trying Magistrate convicted them and imposed a consolidated fine of Rs. 2, 000/- with a default sentence of three months' simple imprisonment in each of the cases. The learned Sessions Judge while dealing with the appeals of the accused persons found that while the Act had provided a fine of Rs. 1,000/- as the minimum punishment, the trial Court had imposed a consolidated fine of Rs. 2,000/- for three offences. In his view such sentence has not in accordance with law as contained in Section 367(2) of the Code of Criminal Procedure. While sustaining this conviction, he set aside the consolidated sentences of fine and recommended u/s 438 of the Code of Criminal Procedure to this Court to pass appropriate sentences. 3. Eight revision applications u/s 439 of the Code of Criminal Procedure were filed by the accused persons. Eight Reference Cases were also registered in this Court. One of us (Misra, J.) gave the following direction on the reference applications. Admit. Issue notice fixing 20-3-1972 for appearance. The acceptance of the reference may have the effect of enhancement of the sentence. Let clear notice be given to show cause against enhancement of sentence.... The criminal revisions and the criminal references were beard together by one of us (Panda, J.) and by judgment dated 7-5-1973, the conviction in each case was sustained and in place of fine, rigorous imprisonment was awarded. 4. Let clear notice be given to show cause against enhancement of sentence.... The criminal revisions and the criminal references were beard together by one of us (Panda, J.) and by judgment dated 7-5-1973, the conviction in each case was sustained and in place of fine, rigorous imprisonment was awarded. 4. Thereupon eight applications one in each case were issued purporting to be under Sections 56 I-A and 562 of the Code of Criminal Procedure for review so far as the sentence was concerned contending, inter alia,: (i) The provisions of the Probation of Offenders Act have not been considered while awarding the sentence; (ii) The notice of enhancement issued in each of the criminal references based upon the recommendation of the learned Sessions Judge was for passing of the appropriate sentence and there was no indication that the accused persons had been called upon to show cause against imposition of substantive sentence of imprisonment. The final order of this Court was, therefore, illegal and contrary to the provisions of Section 439(2) and (6) of the Code. 5. Four points were raised for consideration, namely; (i) Has the High Court jurisdiction to entertain a petition u/s 561A of the Code to review its final order and, if so, is it an unlimited one so as to cover cases like the present one? (ii) Are the Petitioners entitled to the benefit of the provisions of the Probation of Offenders Act, 1958? (iii) Are the provisions of Section 562 of the Code attracted in this case? and (iv) Were the notices issued to the Petitioner in the reference cases for enhancement of sentence "limited notices" for enhancement of the sentence of fine only and not 'comprehensive notices' of enhancement of sentence which could include Imposition of substantive imprisonment? On behalf of the State it was conceded that a High Court has inherent power to revoke, vary or alter the order but it was confined to instances where the order was without jurisdiction or illegal. The Court ultimately found so far as the first point is concerned; "There are no two opinions, however, that the Court can go into facts or points of law, which were not considered for any reason and if considered, at least would have tilted the issue to a great measure." The Court also accepted the notice of enhancement not to have been a 'comprehensive notice'. While negativing the claim of the accused persons on other two counts, the Court thus proceeded to review its judgment in the criminal references and substituted the sentences of imprisonment by enhanced fines. These leave applications have been filed against the said decisions upon review. 6. Article 134(1)(c), under which provision these applications are made, provides: 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 (a)...or (b)or (c) certifies that the case is a fit one for appeal to the Supreme Court: Provided that an appeal under Sub-clause (c) shall lie subject to such provisions as may be made in that behalf under Clause (1) of Article 145 and to such conditions as the High Court may establish or require. There is considerable dispute at the Bar as to the fitness of the cases for our certifying them for appeal to the Supreme Court. 7. In a series of cases, the learned Judges of the Supreme I Court have from time to time clearly indicated the manner in which this power has to be exercised. We shall refer to some of these decisions here. In Baladin and Others Vs. State of Uttar Pradesh Sinha, J, (as the learned Judge then was spoke for the Court thus): Article 134(1)(a) and (b) lay down two conditions which confer a right of appeal to this Court. That in itself indicates that normally there is no right of appeal in any other type of case. The only exception is (c) where a' right is conferred ('an appeal shall lie') if the High Court certifies that the case is a fit one for appeal. Now the word 'certifies' is a strong word. It indicates that the High Court must bring its mind to bear on the question and, as in all cases of judicial orders and certificates, the reasons for the order must be apparent on the face of the order itself. The Supreme Court must be in a position to know first that the High Court has applied its mind to the matter and not acted mechanically and, secondly, exactly what the High Court's difficulty is and exactly what question of outstanding difficulty or importance the High Court feels this Court ought to settle. The Supreme Court must be in a position to know first that the High Court has applied its mind to the matter and not acted mechanically and, secondly, exactly what the High Court's difficulty is and exactly what question of outstanding difficulty or importance the High Court feels this Court ought to settle. It is not enough to say 'leave to appeal is given' and no more because an appeal is not allowed in the ordinary way when conditions (a) and (b) are not satisfied. Accordingly merely to say that leave is given and no more is tantamount to saying that the High Court will usurp the functions of the Constitution-makers and allow the whole case to be opened up despite the fact that the Constitution has specifically limited the normal right of appeal to Sub-articles (a) and (b) and has left (c) to meet extra-ordinary cases. Hidayatullah, J. (as the learned Judge then was) in Babu v. State of U.P. and welt on the point saying: ...There is no doubt whatever that Sub-clause (c) does not confer an unlimited jurisdiction on the High Courts. The power gives a discretion but discretion must always be exercised on some judicial principles. A similar Clause in Article 133, (now very much different after the Thirtieth Amendment), which allows appeals in civil cases, has been consistently interpreted as including only those cases which involve a question of general public importance. That test need not necessarily be applied to a criminal case but it is clear that mere questions of fact should not be referred for decision. The Constitution does not contemplate a criminal jurisdiction for this Court except in those two cases covered by Clauses (a) and (b) which provide for appeals as of right. The High Court, before it certifies the case, must be satisfied that it involves some substantial question of law or principle. Shelat' J. in Mahanlal v. State of Gujarat 1968 S.C.D. 699, spoke for the majority thus: ...The next question is whether this was a case where the High Court could have granted the certificate. In Haripada Dey Vs. The State of West Bengal and Another it was held, that the High Court had no jurisdiction to grant a certificate under Article 134(1)(c) on a mere question of fact. In Haripada Dey Vs. The State of West Bengal and Another it was held, that the High Court had no jurisdiction to grant a certificate under Article 134(1)(c) on a mere question of fact. In Babu v. State of Uttar Pradesh 1965 S.C.D. 1075, it was again observed that the Constitution does not confer ordinary criminal jurisdiction on this Court except in cases covered by Clauses (a) and (b) of Article 134 which provide for appeals as of right. The High Court before it certifies the case in cases not covered by Clauses (a) and (b) of Article 134(1) must be satisfied that it involves some substantial question of law or principle. Only a case involving something more than mere appreciation of evidence is contemplated by the Constitution for the grant of a certificate under Article 134(1)(c) which alone applies in this case. Ray, J. (now the learned Chief Justice) in Haripada Dey Vs. The State of West Bengal and Another restated the position saying: The right to appeal to this Court in criminal matters is regulated by Article 134. In the present case, we are concerned with Sub-clause (c) and not Sub-clauses (a) and (b) of Clause (1) of Article 134. The scope of Sub-clause (c) of Clause (1) of Article 134 has been considered in several decisions of this Court and we shall refer only to the last one. In Babu v. State of Uttar Pradesh 1970 S.C.D 58, this Court said that the power under Sub-clause (c) conferred on the High Court discretion which is to be exercised on judicial principles. The jurisdiction under Article 134(1)(c) is not that of an ordinary Court of Criminal Appeal. It is manifest that before granting a certificate under Sub-clause (c), the High Court must be satisfied that it involves some substantial question of law or principle. The certificate itself should give an indication what substantial question of law or principle is involved in the appeal to bring it within the scope of Article 134(b)(c).... In Sushil Kumar Gupta Vs. Joy Shanker Bhattacharyya the Supreme Court again said: Before closing we may point out, as has repeatedly been said by this Court, that there is normally no right of appeal to this Court in criminal matters except in cases provided by Article 134(1)(a) and (b) of the Constitution. In Sushil Kumar Gupta Vs. Joy Shanker Bhattacharyya the Supreme Court again said: Before closing we may point out, as has repeatedly been said by this Court, that there is normally no right of appeal to this Court in criminal matters except in cases provided by Article 134(1)(a) and (b) of the Constitution. Clause (c) of this Article empowers the High Court to certify cases to be fit for appeal to this Court. The word certify is a strong word, it postulates exercise of judicial discretion by the High Court and the certificate should ordinarily show on the face of it that the discretion was invoked and properly exercised. This Court should be in a position to know that the High Court has not acted mechanically but has applied its mind. A certificate under this clause is impermissible on questions of fact and when a case does not disclose a substantial question of law or principle then the certificate granted by the High Court' is liable to be revoked by this Court, though such prima facie non-disclosure would not by itself automatically invalidate the certificate.... In one of the most recent decisions of the Supreme Court State of Bihar Vs. Bhagirath Sharma and Another the learned Judges have reiterated the self-same view and said: ...Such certificate is not to be given as a matter of course on the mere ground that the impugned decision is considered to be erroneous. There must be exceptional or special circumstances like infringement of essential principles of justice or some difficult question of law of great public or private importance. It is not to be granted so as to convert this Court into an ordinary Court of further appeal.... 8. From these decisions, the following conclusions clearly follows: 1. In regard to matters not covered by Article 134(1)(a) or (b), there is no right of appeal. 2. "Certify" in Clause (c) is a strong word. No certificate can be granted by a High Court unless t the case involves a substantial question of law or principle. 3. On a question of fact - however difficult or complicated a certificate is impermissible. 9. Now we shall consider whether judged by these standards, a certificate of fitness for appeal to the Supreme Court can be granted in these matters. 3. On a question of fact - however difficult or complicated a certificate is impermissible. 9. Now we shall consider whether judged by these standards, a certificate of fitness for appeal to the Supreme Court can be granted in these matters. As already noticed, the learned Single Judge initially dismissed the several revision applications u/s 439 of the Code and accepted the references made u/s 338 of the Code and enhanced the sentences from fine to various terms of rigorous imprisonment. Later, on applications purporting to be under Sections 561A and 562 of the Code, the same learned Judge while sustaining the conviction, vacated the sentence of imprisonment and enhanced the fines as imposed by the trial Court. The conviction of the accused persons had thus become final though the sentences have been altered. It is not disputed that the High Court disposes of cases reported to it u/s 438 in exercise of the power u/s 439(1) of the Code. The learned Single Judge while considering the review applications relied upon a Division Bench decision of this Court Simadri v. State 36 (1970) C.L.T. 1176. The Division Bench referred to the Supreme Court decisions in the cases of U.J.S. Chopra Vs. State of Bombay T.H. Hussain v. M.P. Mondkar 1970 S.C.D. 37 and Talab Haji Hussain Vs. Madhukar Purshottam Mondkar and Another and relying upon the ratio in a series of cases of different High Courts which interpreted the rule laid down In chopra's case (supra) had concluded that the inherent power of a High Court u/s 561A of the Code was not circumscribed by any fetters and a revisional judgment was open to review. Before the learned Single Judge, the correctness of Simadri's case 36 (1970) C.L.T. 1176 was not disputed and the learned Judge following the ratio of that case (he was bound by it) came to hold: There are no two opinions, however, that the Court can go into facts or points of law which were not considered for any reason and if considered at least would have tilted the issue to a great measure. 10. During the pendency of these leave applications, the correctness of the aforesaid ratio in the impugned decision was referred to a Division Bench and on 27-9-1973, Anr. Bench Sk. Barket v. State of Orissa 39 (1973) C.L.T. 1116, has come to hold that the ratio in the impugned decision is incorrect. 10. During the pendency of these leave applications, the correctness of the aforesaid ratio in the impugned decision was referred to a Division Bench and on 27-9-1973, Anr. Bench Sk. Barket v. State of Orissa 39 (1973) C.L.T. 1116, has come to hold that the ratio in the impugned decision is incorrect. While doing so, that Division Bench considered the correctness of the decision in Simadri's case 36 (1970) C.L.T. 1176 and observed: The Supreme Court in two cases referred to above Talab Haji Hussain Vs. Madhukar Purshottam Mondkar and Another Sankar Ramchandra Abhyankar v. Krishnnaji Dattamya Bapat 1970 S.C.D. 37, approving U.J.S. Chopra Vs. State of Bombay on a consideration of Sections 430, 439 and other provisions of the Code held that the judgment of the High Court u/s 439, Code of Criminal Procedure reaches finality which means that review is prohibited under other provisions of the Code of Criminal Procedure and, as such, Section 561A cannot be employed for that purpose. This reinforces my aforesaid conclusion that Simadri Nondo's case 36 (1970) C.L.T. 1176 does not lay down good law. We are well aware of the legal position that one Division Bench of the High Court cannot overrule of the decision of another Division Bench. But if the earlier Division Bench decision has failed to take into consideration relevant Privy Councilor Supreme Court decisions, it is not necessary for the later Division Bench to refer the matter for consideration by a larger Bench. In Simadri Nanda v. The State 36 (1970) C.L.T. 1176, the Division Bench did not consider the effect of Sankar Ramchandra Abhyankar v. Krishnnaji Dattamya Bapat 1970 S.C.D. 37 and Talab Haji Hussain Vs. Madhukar Purshottam Mondkar and Another we are bound to follow the Supreme Court decisions and hold that Simadri Nanda v. The State 36 (1970) C.L.T. 1176, was not correctly decided. 11. Indisputably decisions of the Supreme Court declaring the law are binding on all Courts within the territory of India and, therefore, a judgment delivered by a coordinate or even larger Bench which is contrary to a decision of the highest Court of the country would amount to a judgment per incuriam and would not have precedent value or binding effect. Mr. B.M. Patnaik points out that as a fact, however, Simadri's case 36 (1970) C.L.T. 1176 had referred to both U.J.S. Chopra Vs. Mr. B.M. Patnaik points out that as a fact, however, Simadri's case 36 (1970) C.L.T. 1176 had referred to both U.J.S. Chopra Vs. State of Bombay, and Talab Haji Hussain Vs. Madhukar Purshottam Mondkar and Another and from the latter decision had even extracted a passage at page 1185 of the Reporter (in Simadri's case 36 (1970) C.L.T. 1176). Mr. Patnaik also states that though Sankar Ramchandra Abhyankar v. Krishnnaji Dattaraya Bapat 1970 S.C.D. 37, was not referred to, a reference to that decision reveals that the Court was considering the question of grant of leave under Article 133(1)(c) in a civil proceeding and towards the close of the judgment had only referred to U.J.S. Chopra Vs. State of Bombay with approval. Simadri's case had thus taken note of both the material decisions of the Supreme Court and had taken one view d the matter which could only be appropriately altered, in case it was erroneous, by a larger Bench. We are a Bench of coordinate jurisdiction and except pointing out the factual aspect do not intend to say anything more. 12. At the Bar, Sk. Barket's case 39 (1973) C.L.T. 1116 was relied upon to show that the very basis in the impugned judgment has been vacated on principle though the fate of these cases has not been affected. If the entire dispute remaining for authoritative decision was one of sentence only so far as these eight accused persons were concerned, there could have been no question of grant of certificates of fitness for appeal. The position as well shall presently indicate, however, appears to be somewhat dismal and disturbing. Chopra's case 10, was disposed of by three learned Judges of, the Supreme Court. Bhagwati, J. who spoke for the majority clearly stated: These revisional powers could only be exercised by the High Court 'qua' the judgment of the lower Court and once that judgment is replaced by 'the judgment of the High Court, the High Court has no further powers to review or revise its own judgment and enhance (or reduce) the sentence which is thus passed by it upon the accused. In another part of that judgment it was again said: If the accused had an opportunity of showing cause against his conviction either in an appeal or a criminal revision application filed by him or on his behalf 2nd the conviction was confirmed on a full hearing in the presence of both the parties after the issue of the requisite notice by the Court to the opposite party, the judgment of the High Court would replace that of the lower Court which judgment could not be reviewed or revised by the High Court at all in exercise of its revisional powers u/s 439(1). The Supreme Court was deciding the question as to whether an accused whose appeal against conviction had been dismissed at the stage of admission could dispute his conviction when notice of enhancement of sentence was given on the basis of that conviction. 13. A series of judgments of different High Courts there after confined the ratio of this case to the power of the High Court u/s 439 of the Code and proceeded on the basis that nothing had been said there which touched the jurisdiction of the High Court in respect of its inherent powers covered by Section 561A of the Code. In Simadri's case 36 (1970) C.L.T. 1176, this Court relied upon some of these judgments and before us, on behalf of the Respondents, Mr. Patnaik has given a catalogue of them. Some of the important ones are: (1) Raj Narain and Others Vs. The State, . (2) In re Biyamma AIR 1963 Mya, 326. (3) Ramballabh Jha v. The State of Bihar AIR 1962 Pat 47. (4) Public Prosecutor, Andhra Pradesh v. Devireddi Nagi Reddi AIR 1962 H.P. 479 (P.B). (5) Karam Das Sautha Vs. Sangat Ram, (6) Nalu Sahu and Another Vs. The State, . (7) Lal Singh and Ors. v. State and Ors. AIR 1970 Pune. 32. (8) Bhagwandas v. The State AIR 1954 M.B. 10 . (9) Ganesharam v. State of Rajasthan 1968 Cri. L.J. 1612. 14. On behalf of the State of Orissa, it is contended before us that the decision in U.J.S. Chopra Vs. State of Bombay was dealing with the power of the High Court in the given situation and not in a manner confined to the power conferred by Section 439 of the Code only. L.J. 1612. 14. On behalf of the State of Orissa, it is contended before us that the decision in U.J.S. Chopra Vs. State of Bombay was dealing with the power of the High Court in the given situation and not in a manner confined to the power conferred by Section 439 of the Code only. Emphasis has been laid on the conclusion that in regard to finality of the decision no distinction exists between the original judgment, the appellate judgment or the revision judgment. Once by a specific provision finality attaches, contends learned Additional Government Advocate, on well-settled principles, by invoking the aid of Section 561A, a conflicting situation cannot be made out. On the other hand, Mr. Patnaik for the Respondents seeks to confine the decision in U.J.S. Chopra Vs. State of Bombay to the facts of that case and contends that the law regarding the power of a High Court u/s 561A of the Code has by now gone beyond the field of dispute as "indicated and illustrated" (borrowing his phrase) in these decisions of the different High Courts. We are not in a position to lightly keep away a decision of the highest Court of the land relying upon the oft-quoted dictum in Quinn v. Leathem (1901) A.C. 493, placed before us by Mr. Patnaik. We are reminded of the view that even obiter dicta coming from the high authority of the Supreme Court binds us. 15. There thus seems to have arisen a situation where the law on the point has developed a chaotic feature and in regard to the interpretation of a very substantial provision of the Code having application throughout the country there is no unanimity. In fact, as late as 1971, a larger Bench of five Judges of the Allahabad High Court, Mahesh v. State 1971 Cri. L.J. 1674, has taken a some-what different view from their own Court's earlier Full Bench, Raj Narain and Others Vs. The State. Even here, there has been a separate note by one of the learned Judges. In our view, thus a question of law of substantial importance arises which in the circumstances we feel should be clearly resolved by the Supreme Court and the law on the point be set at rest. In our humble opinion, the situation can be adequately dealt with only by the Supreme Court. In our view, thus a question of law of substantial importance arises which in the circumstances we feel should be clearly resolved by the Supreme Court and the law on the point be set at rest. In our humble opinion, the situation can be adequately dealt with only by the Supreme Court. Left to itself, it might take ages until the correct position gets known and comes to be acknowledged. In the process of the growth and development of the law, a time comes for intervention of the appropriate authority to guide and shape the law. 16. We accordingly accord the certificate for fitness for appeal to the Supreme Court under Article 134 (1)(c) of the Constitution in these cases and direct that the requisite certificates be granted. K.B. Panda J. 17. I have had the advantage of perusing the order proposed by my learned brother Misra, J. and while agreeing that the requisite certificate of fitness to appeal to the Supreme Court be granted, I would like to take note of some features of this case. 18. The learned Sessions Judge while disposing of the criminal appeals never came to the conclusion that the punishment was inadequate and required enhancement or that substantive imprisonment should be,awarded. The minimum punishment prescribed for the offence in question is not imprisonment of a specified term as in the case of many other anti-social offences. On his finding that three offences had been clubbed together in each case and the statute prescribed a fine of Rs. 1000/- as the minimum sentence for each offence, and consolidated fine of Rs 2000/-, as imposed by the trial Court did not answer the requirement of law the learned Sessions Judge had made the references u/s 438 of the Code of Criminal Procedure. The State did not apply for enhancement of the sentence. My learned brother did not direct that notice should issue to show cause against enhancement of the sentence to one of imprisonment, but was of the view that acceptance of the reference in each of the cases may amount to enhancement of the sentence and, therefore, notice of enhancement should issue. If conviction was ultimately upheld and the minimum sentence was to be imposed, in each case the minimum sentence of fine was to be Rs. 3000/- in place of Rs. 2000/- as awarded. 19. If conviction was ultimately upheld and the minimum sentence was to be imposed, in each case the minimum sentence of fine was to be Rs. 3000/- in place of Rs. 2000/- as awarded. 19. This aspect of the matter had not been appropriately brought to the notice of the Court when the criminal revisions by the Respondents and the criminal references made by the learned Sessions Judge were heard together. The revisions were ultimately dismissed, the references were accepted and the sentences were enhanced to terms of imprisonment. 20. The Respondents made grievance of the fact that they were never put upon notice that their sentences could be enhanced to terms of imprisonment because in the facts of the case they and their counsel remained under the impression that if they lost, the minimum sentence for the three separate offences tried in each case against them would be imposed. They asked this Court to review the sentence by applications u/s 561A, Code of Criminal Procedure. 21. A Bench decision of this Court in Simadri Nanda v. State 36 (1970) C.L.T. 1176, laying down the scope of the jurisdiction u/s 561A of the Code was placed before me in support of the applications and on behalf of the State its correctness was not at all impugned. The Bench decision was binding on me and I followed the ratio of the case. I was impressed by the argument advanced on behalf of the Respondents that if the justification for the making of the references, the order passed by my learned brother Misra, J. while admitting the references and the requirements of the law had been appropriately highlighted during the hearing I would not have had enhanced the sentences of fine to various terms of imprisonment in these cases. I also took note of the position that if any reasonable doubts arose regarding the sufficiency of the notice and consequent prejudice to the Respondents (accused), such doubts had to be resolved to their benefit. Following Simadri's case 36 (1970) C.L.T. 1176. I came to the conclusion that ends of Justice which is the paramount consideration for a Court called for interference and accordingly substituted the enhanced sentences of fine by enhanced fines only. It may be stated that almost the maximum of fine that the trial Court was entitled to impose has in fact been imposed. 22. I came to the conclusion that ends of Justice which is the paramount consideration for a Court called for interference and accordingly substituted the enhanced sentences of fine by enhanced fines only. It may be stated that almost the maximum of fine that the trial Court was entitled to impose has in fact been imposed. 22. The review made so far as the sentences are concerned is now impugned to be beyond the purview of Section 561A of the Code and the jurisdiction to alter the judgment is challenged. Even the correctness of the ratio in Simadri's case 36 (1970) C.L.T. 1176, has not only been disputed but also vacated by another Bench of coordinate jurisdiction on the footing that the decision in Simadri's case 36 (1970) C.L.T. 1176, ran counter to authoritative pronouncements of the law of the land as declared by the Supreme Court. 23. For the reasons indicated by my learned agree that the certificates be granted so that the law on may be settled once for all.