A High Court cannot grant a certificate of fitness for appeal to the Supreme Court under Art. 134(1)(c) of the Constitution on a mere question of fact.

Judgment

KAPUR, J. : This is an appeal against the judgment and order of the High Court of Calcutta in which a preliminary objection has been taken that the certificate under Art. 134(1)(c) is not a proper certificate and should therefore be cancelled. A further question would arise as to whether it is a case in which special leave to appeal should be granted under Art. 136 if we find that the preliminary objection is well founded.

2. The appellant was tried for murder under S. 302 of the Indian Penal Code in the court of the Additional Sessions Judge at Alipore sitting with a jury. The jury returned a verdict of not guilty and the appellant was acquitted. Against that order the State took an appeal to the High Court and the Division Bench found that there was misdirection in the charge to the jury and therefore after consideration of the evidence to set aside the verdict of jury, allowed the appeal and sentenced the appellant to imprisonment for life. The appellant then applied to the High Court for a certificate under Art. 134(1)(c) which was granted by another Division Bench of the Court which had not heard the appeal.

3. Three points were urged before the Bench hearing the application for certificate; (1) that there was unusual delay in delivering the judgment and the Division Bench hearing the appeal forgot to consider many of the questions of fact which were raised and argued before it; (2} that the High Court had no power to substitute its own estimate of the evidence in an appeal against the order of acquittal in a trial by jury and (3) that as a matter of fact there were no such misdirections as caused a failure of justice or a mistrial and therefore the High Court was not entitled to examine the evidence. The learned Judges were of the opinion that there was no substance in points Nos. 2 and 3 but the first point did raise a question of importance. The learned Chief Justice observed :-

"The delay in delivering judgment is certainly a very unusual fact, and it may lead to the result that some of the points which were argued on behalf of the petitioner before the Division Bench were lost sight of by the learned judges while delivering their judgment. As already stated, these points have been summarised by the petitioner in that paragraph 18 of the petition. The points raised in that paragraph may or may not be good points, but if these points were advanced on behalf of the petitioner, the learned Judges of the Division Bench owed it to themselves to come to a decision on those points. In the arguments before us, it is not denied on behalf of the State that the points which have been summarised in paragraph 18 of the petition were canvassed by the defense Counsel at the hearing of the appeal and having regard to that fact, I am inclined to hold that the petitioner is entitled to a certificate under Article 134(1) (c) of the Constitution on that ground."

This is the ground on which the certificate was granted. This Court has had occasion to consider the grounds on which a certificate can be granted under Art. 134(1) (c) of the Constitution. In Haripada Dey v. State of West Bengal, 1956 SCR 639: it was held that the High Court has no jurisdiction to grant a certificate under Art. 134 (1) (c) on a mere question of fact and it is not justified in passing on such a question to the SC for further consideration thus converting the SC into a Court of Appeal on facts. Bhagwati J., there said at p. 641 (SCR): (at p. 759 of AIR) :

"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(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 in fact."

In a later case Sidhewar Gunguly