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SUPREME COURT OF INDIA
5th September 1956
BHAGWATI, IMAM AND GOVINDA MENON, JJ.
Haripada Dey . . . Appellant
Versus
The State of W.B. and another . . . Respondents.
Criminal Appeal No. 86 of 1954
Advocates appeared
Mr. Sukumar Ghose, Advocate, for Appellant; Mr. D. N. Mukherejee, Advocate for Mr. P. K. Bose, Advocate (for No. 1) and Mr. K.L. Arora, Advocate (for No. 2), for Respondents.
Held: "Whatever may have been the misgivings of the learned Chief Justice in the matter of a full and fair trial not having been held we are of the opinion that he had no jurisdiction to grant a certificate under Art 134 (I) (c) in a case where admittedly in his opinion the question involved was one of fact-where in spite of a full and fair trial not having been vouchsafed to the appellant, the question was merely one of a further consideration of the case of the appellant on facts.
"The mere disability of the High Court to remedy this circumstance and vouchsafe a full and fair trial would not be any justification for granting a certificate under Art. 134 (I) (c) and converting this Court into a Court of Appeal on facts. 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. We no doubt possess that power and in proper cases have exercised it under Art. 136 (1).
"If there has been a gross miscarriage of justice or a departure from legal procedure such as vitiates the whole trial we would certainly intervene and we would also intervene if even the findings of fact were such as were chocking to our judicial conscience and grant in such cases special leave to appeal under Art 136 (I). That is, however, a special jurisdiction which we can exercise under Article 136 (1), but no. High Court can arrogate that function to itself and pass on to us a matter which in its view is purely one involving questions of fact, because it finds itself helpless to redress the grievance. In such a case, the High Court should refuse to give a certificate under Art. 134 (1) (c) and ask the parties to approach us involving our special jurisdiction under Art 136 (l) of the Constitution. We are, therefore, of the opinion that the discretion that was so elaborately exercised by the Calcutta High Court in this case was wrongly exercised. The certificate purporting to have been granted under Art. 134 (I) (c) was no certificate at all and it does not avail the appellant before us." (per Bhagwati J.) - Articles 136 (I), 134 (2) (c)-Certificate under Art. 134 (I) (c) cannot be granted by the High Court where admittedly the question involved is one of fact-If the High Court thinks that full and fair trial has not been held, the parties should be asked to approach the Supreme Court for special jurisdiction under Article 136 (I).
See under" Article 134" at p. 559 ante. - Sections 256, 286-Criminal trial-Burden of proof on prosecution-Prosecution case established-Duty of accused to lead evidence-Effect of failure to do so on grant of special leave to appeal under Art. 136, Constitution of India.
Held: it is no doubt true that the prosecution has got to prove its case beyond reasonable doubt and the accused need not open his mouth nor lead any evidence. If the prosecution succeeds in establishing its case, the conviction would follow but if the prosecution fails to discharge the burden which lies upon it to prove the charge which has been framed against the accused he is entitled to an acquittal. On the state of the evidence in this case, it was the bounden duty of the appellant if he wanted to prove his defence to adduce evidence in support of his contentions and if he did not do so, he had only to thank himself for it. The prosecution could not be blamed for that lacuna and if both the courts below went on the re" cord as it stood and came to the conclusion, finding it as a fact, that the prosecution had established its case, it could not be urged that that evidence, if forthcoming, would have demolished the case of the prosecution.
Judgement
BHAGWATI, J. :- The appellant was charged under S. 411, Penal Code with dishonestly receiving or retaining in his possession one Hillman Car number WBD 4514 bearing Engine and Chassis No. A1178482 WSO knowing or having reason to believe the same to be stolen property. The learned Presidency Magistrate, Calcutta, convicted him of this offence and sentenced him to rigorous imprisonment for 2 years. The appellant took an appeal to the High Court at Calcultta and a Division Bench of High Court constituted by Jyoti Prakash Mitter and Sisir Kumar Sen JJ. dismissed the appeal confirming the conviction and sentence passed upon him.
The appellant filed a petition for leave to appeal to this Court that petition according to what we are told is the practice obtaining in the Calcutta High Court came before a division bench differently constituted - a Bench constituted by the learned Chief Justice and S. C. Lahiri J. This Bench allowed the petition and ordered that a certificate for leave to appeal under Art. 134 (1) (c) of the Constitution may be drawn up. In an elaborate judgment the learned Chief Justice observed :
"In my view a certificate of fitness ought to issue in this case, although the question involved is one of fact."
......After discussing in detail the various circumstances in the case which did not meet with his approval, he wound up by saying :
"In my view it is impossible not to feel in this case that there has not been as full and fair trial as ought to have been held. In the circumstances, it appears to me that the petitioner is entitled to have his case further considered and since such further consideration can only be given by the SC, I would grant the certificate prayed for."
2. Contrary to what we had in the previous case before us viz. Criminal Appeal No. 146 of 1956 (Om Prakash V. The State of Uttar Pradesh), where no reasons were given as to why the court exercised its discretion in granting the certificate, in this judgment we have an elaborate discussion as to why such discretion was being exercised by the Court. The reasoning, however, does not appeal to us. Whatever may have been the misgiving of the learned Chief Justice in the matter of a full and fair trial not having been held we are of the opinion that he had no jurisdiction to grant a certificate under Art. 134 (1) (c) in a case where admittedly in his opinion the question involved was one of fact - where in spite of a full and fair trial not having been vouchsafed to the appellant, the question was merely one of a further consideration of the case of the appellant on facts.
The mere disability of the High Court to remedy this circumstance and vouchsafe a full and fair trial could not be any justification for granting a certificate under Art. 134 (1) (c) and converting this Court into a Court of Appeal on facts. 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. We no doubt possess that power and in proper cases have exercised it under Art. 136 (1).
If there has been a gross miscarriage of justice or a departure from legal procedure such as vitiates the whole trial we would certainly intervene and we would also intervene if even the findings of fact were such as were shocking to our judicial conscience and grant in such cases special leave to appeal under Art. 136(1). That is, however, a special jurisdiction which we can exercise under Art. 136 (1), but no High Court can arrogate that function to itself and pass on to us a matter which in its view is purely one involving questions of fact, because it finds itself helpless to redress the grievance. In such a case, the High Court should refuse to give a certificate under Art. 134 (1) (c) and ask the parties to approach us invoking our special jurisdiction under Art. 136 (1) of the Constitution. We are, therefore, of the opinion that the discretion that was so elaborately exercised by the Calcutta H
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