ASHWIN CHANDULAL SHAH v. STATE — 1976 DIGILAW 2 (GUJ)

P. D. DESAI, J. ( 1 ) TWO of my learned colleagues have differed on the question as to whether or not a certificate of fitness under Article 134 (1) (c) of the Constitution of India should issue in the present case. S. H. Sheth J. was of the view that four substantial questions of law were involved in the case which were required to be decided by the Supreme Court and that therefore a certificate of fitness was requi- red to be issued. A. N. Surti J. was of the view that there was no substance in this petition and that the case was not a fit one to be certified. It is for the resolution of this difference that the matter has been placed before me. . . . . . . . . . . . . . . . . . . ( 2 ) BEFORE I enter upon the consideration of the case on merits it would be convenient to refer to the well-settled legal position as regards the scope and ambit of the High Courts jurisdiction for certifying a case as a fit one for appeal to the Supreme Court under Article 134 (1) (c ). The provisions of the said sub-article fell for interpretation before a Bench of five learned Judges of the Supreme Court in BABU V. STATE OF U. P. A. I. R. 1965 S. C. 1947. Hidayatullah J. as he then was speaking for the Court observed that the said sub-clause permits an appeal in cases which the High Court certifies as fit for appeal. It does not however prescribe the conditions necessary for such certification and no rules under Article 145 regulating generally the practice and procedure of the Supreme Court for the grant of certificate by the High Court have been framed. The power which is granted is no doubt discretionary but in view of the word certifles it is clear that such power must he exercised with great circumspection and only in a case which is really fit for appeal although it is impossible by a formula to indicate the precise limits of such discretion. Reference was then made to the previous decisions of the Supreme Court bearing on the said question and in particular to the decision in HARIPADA DEV V. STATE OF WEST BENGAL A. 1. Reference was then made to the previous decisions of the Supreme Court bearing on the said question and in particular to the decision in HARIPADA DEV V. STATE OF WEST BENGAL A. 1. R. 1956 S. C. 757 wherein it was observed as under :no High Court has the jurisdiction to pass on mere questions of fact for further consideration by this Court under the relevant articles of the Constitution. While dealing with the aforesaid observations Hidayatullah J. observed :-THE observations if we may say so with respect are too absolute to be a safe guide in the infinite variety of cases that come before the Courts. There are cases and cases It can only safely be said that under Article 134 (1) (c) this Court has not been made an ordinary Court of Criminal Appeal and the High Courts should not by the certificates attempt to create a jurisdiction which was not intended. The High Courts should therefore exercise their discretion sparingly and with care. The cer- tificate should not be granted to afford another hearing on facts unless there is some error of a fundamental character such as occurred in Nar Singhs case. IT must be mentioned at this stage that Nar Singhs ease (A. I. R. 1954 S. C. 457) was an instance of a Courts mistake which resulted in the conviction of a wrong person as a consequence of a curious misreading of the evidence by the High Court. The mistake was soon realised and the High Court granted a certificate of fitness under Article 134 (1) (c) not only to the person wrongly convicted but also to another person who was convicted along with him. It was found in that case that the certificate was rightly issued so far as the person wrongly convicted was concerned. Proceeding further with the consideration of the question of the limits of the jurisdiction of the High Courts to grant a certificate of fitness under Article 134 (1) (c) Hidayatullah J. made the following observations:-THESE cases illustrate different angles of the problem. 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 judi- cial principles. 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 judi- cial principles. A similar clause in Art. 133 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 cls. (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. In a criminal appeal the High Court can consider the case on law and fact and if the High Court entertains doubt about the guilt of the accused or the sufficiency of the evidence it can always give the benefit to the accused there and then. It is not necessary that the High Court should first convict him and then grant him a certificate so that this Court if it thought fit reverse the decision. It is thus obvious that only a case involving something more than mere appreciation of evidence is contemplated by the Constitution for the grant of a certificate. What that may be will depend on the circumstances of the case but the High Court should be slow to certify case The High Court should not overlook that there is a further remedy by way of special leave which may be invoked in cases where the certificate is refused. ( 3 ) THE aforesaid observations in this leading decision clearly define the limits of the jurisdiction of the High Court on a petition under Article 134 (J) (c ). They lay down in unmistakable terms that under Article 134 the Supreme Court has not been made an ordinary Court of criminal appeal and that it is not open to the High Courts by issuing certificates to attempt to create a jurisdiction which was not intended. The discretionary powers conferred on the High Courts under the said sub-article have to be exercised sparingly and with care. The discretionary powers conferred on the High Courts under the said sub-article have to be exercised sparingly and with care. Those powers are not unlimited and they are required to be exercised on sound judicial principles. Broadly speaking there are two classes of cases in which a certificate might issue. First where the High Court is satisfied that the case involves some substantial question of law or principle; such question however need not necessarily be of general public importance. Secondly where another hearing on facts is necessary because there is some error - S of a fundamental character. However in no case the High Court should certify a case which involves mere questions of fact and nothing more than mere appreciation of evidence. There is always a further remedy by way of special leave in such cases which may be invoked even if the certificate is refused. ( 4 ) SINCE considerable debate took place before me on the question as to what could be said to be an error of a fundamental character which would warrant the issuance of a certificate of fitness it would be nece- ssary to briefly discuss that question. A fundamental error is one which goes to the foundation of the case and renders the decision manifestly invalid. As to what can be treated as an error of that nature must however in the ultimate analysis depend upon the facts and circumst- ances of each case and even if possible it would be unwise to define the exact limits of the authority of the High Court to certify cases on that ground. As to what can be treated as an error of that nature must however in the ultimate analysis depend upon the facts and circumst- ances of each case and even if possible it would be unwise to define the exact limits of the authority of the High Court to certify cases on that ground. However by way of illustration it could be stated that cases in; which the conviction is patently bad such as when it has been recor- ded by a Court which lacks initial jurisdiction or where the sentence inflicted is in excess of the maximum prescribed by law or where a sentence to a longer term has been imposed because of a prior convict- ion which it is subsequently found has been reversed or vacated or when the conviction is in breach of the principles of natural justice or where there is no evidence at all in support of the conviction or where conviction is manifestly founded on total misapprehension of facts as in Nar Singhs case (supra) or it is wholly inconsistent with findings are some of the cases which come to mind wherein the accused would be entitled to show to the higher Court that his conviction was patently invalid and in such cases a certificate of fitness under Article 134 (1) (c) might properly issue for a rehearing on facts. The issuance of a certi- ficate of fitness in such cases is not only permissible but also imperative because of two reasons. First if a manifest error of such a nature had been brought to the notice of the Court at the lime of the judgment it would not probably have convicted the accused. Secondly the result of a wrong conviction usually pers sts for the record of a conviction for a serious crime is often a lifelong handicap. There are a dozen ways in which the convict may be prejudiced thereby. Subsequent convictions may carry heavier penalties and civil rights and social status and job opportunities may be seriously affected. when the High Court finds therefore that there is some error of a fundamental character as explai- ned above it might grant a certificate to afford another hearing on facts before the Supreme Court to set right the manifest injustice and to relieve the accused of its pernicious effects. when the High Court finds therefore that there is some error of a fundamental character as explai- ned above it might grant a certificate to afford another hearing on facts before the Supreme Court to set right the manifest injustice and to relieve the accused of its pernicious effects. ( 5 ) THE next decision to which reference may be made is in T. B. THAKORE V. STATE OF MAHARASHTRA T969 (3) SUPREME COURT CASES 369. The case was decided by a Bench of three learned Judges of the Supreme Court and Ramaswami J speaking for the Court observed as follows :-IT is well established that under Article 134 (1) (c) of the Constitution an appeal lies to the Supreme Court only if there is a substantial question of law involve d in the case and which in the opinion of the High Court needs to be settled by a deci- sion of the Supreme Court. There is no justification for certifying a case as being a fit one for appeal to the Supreme Court if the ease does not involve any question or principle of law which needs to be resolved by a decision of the Supreme Court. The word certify in the Article has a clear meaning. It requires that when giving the leave to appeal the High Court must first determine the issue of law which in its opinion is needed to be settled by the Supreme Court and such question must be clearly set out in its order. It is true that the grant of a certificate under Article 134 (1) (c) is a matter in the discretion of the High Court but the discretion is a judicial one and must be judicially exercised on well-settled principles which govern such matters. It is also necessary that the certificate must show on the face of it that the discretion conferred upon the High Court was invoked and properly exercised. THE decision in Babus case (supra) was not brought to the notice of the Supreme Court in the above-mentioned case and therefore the observations therein are confined merely to the grant of a certificate in a case which involves substantial question or principle of law which needs to be resolved by the decision of the Supreme Court. THE decision in Babus case (supra) was not brought to the notice of the Supreme Court in the above-mentioned case and therefore the observations therein are confined merely to the grant of a certificate in a case which involves substantial question or principle of law which needs to be resolved by the decision of the Supreme Court. However in view of the clear pronouncement in Babus case (supra) which was decided by a larger Bench this case cannot be read as laying down that a certi- ficate can only issue in a case involving a substantial question or principle of law and that it can never issue to afford another hearing on facts even if there is some error of a fundamental character disclosed from the record of the case. ( 6 ) THEN there is the decision in STATE OF ASSAM V. ABDUL NOOR A. I. R. 1970 S. C. 1365. This case again was decided by a Bench of three learned Judges and Ray J as he then was speaking for the Supreme Court observed as follows:-IN BABU V. STATE OF UTTAR PRADESH (A. I. R. 1965 S. C-1467)this Court said that the power under sub-clause (c) conferred on the High Court descretion 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 cer- tificate 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 indica- tion what substantial question af law or principle is involved in the appeal to bring it within the scope of Article 134 (1) (c)MUCH the same comments which were offered in connection with T. B. Thakores case (supra) can be offered in connection with this case and no useful purpose would be served by mere repetition. ( 7 ) THE last in the series of decisions is the ruling in the case of SUSHIL KUMAR V. JOY SHANKER A. I. R. 1971 S. C. 1543. ( 7 ) THE last in the series of decisions is the ruling in the case of SUSHIL KUMAR V. JOY SHANKER A. I. R. 1971 S. C. 1543. This case was decided by a Bench of two learned Judges and Dua J. speaking for the Court observed that the order 8ranting the certificate under Article 134 (1) (c) in that case did not disclose on its face what exactly the difficulty of the Court was and precisely what question of outstanding difficulty the supreme Court was desired to settle (see Para 3 ). In the concluding paragraph there are the following pertinent observations :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 gra- nted 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 the case in hand no substantial question of law or principle was made out at the bar and the certificate was clearly misconceived though it vaguely states that several questions of law are involved. THE observations that a certificate under this clause is impermissible on questions of fact and that 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 were heavily relied upon on behalf of the respondent to urge that in no case could a certificate be issued so as to permit a party or to afford to it another hearing on facts. I am afraid this argument cannot be accepted and that it flies in the face of the relevant observations tn Babus case (supra) to which reference has already been made earlier. In the said case the principle earlier evolved by the Supreme Court that the High Court had no jurisdiction to pass on mere questions of fact for further consideration by the Supreme Court under Article 134 (1) (c) was held to be too absolute to be a safe guide and it was in terms observed that in the exercise of its judicial discretion the High Court might certify a case for another hearing on facts if there was some error of a fundamental character. The decision in Sushil Kumars case (supra) was rendered by a Bench of two learned Judges. The deci- sion of the Supreme Court in Babus case (supra) which was decided by a larger Bench was not brought to the notice of the Court in that case It cannot therefore be said that the decision in Babus case has been overruled by Sushil Kumars case. The observations in the latter case have therefore to be read consistently with the observations in the former case and if they are so read the only conclusion which can follow is that a certificate under Article 134 (1) (c) is impermissible on questions of fact unless something more than mere appreciation of evidence is invol- ved and an error which goes to the foundation of the case is disclosed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ( 8 ) IT is not in dispute that the notice of the revision application for enhancement of sentence was not served upon the complainant and it is that circumstance which has given rise to this question. The argu- ment was that under sec. 401 of the Criminal Procedure Code 1973 the High Court may in the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge exercise any of the powers conferred on a Court of appeal by secs. 386 389 390 and 391 or on a Court of Sessions under sec. 401 of the Criminal Procedure Code 1973 the High Court may in the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge exercise any of the powers conferred on a Court of appeal by secs. 386 389 390 and 391 or on a Court of Sessions under sec. 307 and that therefore the High Court was also required to follow that procedure laid down in sec. 385 for hearing of appeals not dismissed summarily. Under sec. 385 notice of the appeal was required to be given to the complain- ant in a case instituted upon a complaint and therefore in the present case also since the revisional Court was exercising the power of enhance- ment of sentence under sec. 386 it could not have done so except after issuing a notice to the complainant. In my opinion the argument is wholly misconceived. Sec. 401 does not say that while exercising the powers of revision the High Court shall follow the procedure laid down under sec. 385 for hearing appeals which are not dismissed summarily. The obligation to issue notice therefore does not arise statutorily. An order enhancing the sentence of the accused is not an order which is passed to the prejudice of the complainant and therefore having regard to the principles of natural justice also no notice is required to be issued to the complainant. In PARAGAJI BHULABHAI V. BHAGWANJI BAYABHAI A. I. R. 1940 BOMBAY 14 the accused was prosecuted on a private prosecution and was convicted and he appealed. The appellate Court held that the complainants advocate was not entitled to be heard on the appeal but only the public prosecutor could be heard. Upon a reference a Division Bench of the Bombay High Court consisting of Beaumont C. J. and Sen J. held that the strict rule was that in an appeal against a conviction only the Crown was entitled to be served with notice and heard. Nobody but the Crown was entitled to be heard because no private citizen is technically interested in upholding the conviction. The true rule which should be followed in all Courts therefore was that in private prosecution the Court in its discretion may allow the complainant to appeal by un advocate but it is not in any case bound to do so. The true rule which should be followed in all Courts therefore was that in private prosecution the Court in its discretion may allow the complainant to appeal by un advocate but it is not in any case bound to do so. The ratio of this decision applies with full force to a suo motu proceeding for enhancement of sentence initiated by a Court. Even though in such proceeding it would be open to the accused to challenge his conviction it is the State and not a private citizen whose duty it would be to uphold the convict- ion. Much in the same way it would be the State which might be heard on the question of enhancement of sentence. In my opinion therefore this question also does not raise a point which requires to be decided by the Supreme Court. ( 9 ) FROM the foregoing discussion it would appear that this is not a case which requires to be certified as fit for appeal to the Supreme Court. I am not satisfied that the case involves some substantial question of law or principle or that another hearing on facts is necessary because there is some error of a fundamental character. I therefore agree with A. N. Surti J. and refuse to grant the certificate. The petition is accor- dingly dismissed. The first petitioner will surrender to bail on or before January 31 1976 .