2005 Supreme(SC) 909

2005(5) Supreme 123
Supreme Court of India
(From Patna High Court)
B.N. Agrawal & Tarun Chatterjee, JJ.
Ganga Kumar Srivastava —Appellant
versus
The State of Bihar —Respondent
Criminal Appeal No. 1186 of 1999
Decided on 20-7-2005
Counsel for the Parties :
For the Appellant : S.B. Sanyal, Sr. Advocate, Ranjan Mukherjee, Advocate.
For the Respondent : B.B. Singh, Ms. Sunita R. Singh and Nitesh, Advocates.

Important point
Power under Article 136 of the Constitution of India is exercisable even in cases of concurrent findings of fact but in criminal appeals Court does not interfere with concurrent findings of fact save in exceptional circumstances where High Court acts perversely or other­wise improperly.

Headnote:(i) Constitution of India—Article 136—Appeal by Special Leave—Concurrent findings of fact for conviction of appellant by Courts below—Scope of going into merits of appeal—Court would not interfere with concurrent findings of fact save in exceptional circumstances—If High Court acts perversely or otherwise improperly, inter­ference may be made.

       Held : Since this appeal relates to interference by this Court under Article 136 of the Constitution against the concurrent findings of fact, it would be appropriate for us to consider the scope of Article 136 of the Consti­tution in such a situation before going to the merits of the appeal. It is now well settled that power under Article 136 of the Constitu­tion of this Court is exerciseable even in cases of concurrent find­ings of fact and such powers are very wide but in criminal appeals this Court does not interfere with the concurrent findings of the fact save in exceptional circumstances. This view was expressed by this Court way back in the year 1958 in the case of State of Madras Vs. Vaidyana­tha Iyer, AIR 1958 SC 61. In this decision this Court held that in Article 136 the use of the words “Supreme Court may in its discretion grant special leave to appeal from any judgment, decree, determina­tion, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India” shows that in criminal matters distinction can be made between a judgment of conviction or acquittal. This Court further observed that this Court will not readily inter­fere with the findings of fact given by the High Court and the court of first instance but if the High Court acts perversely or otherwise improperly, interference may be made. (Para 8)

       From the aforesaid series of decisions of this Court on the exercise of power of the Supreme Court under Article 136 of the Con­stitution following principles emerge:

        i) The powers of this Court under Article 136 of the Constitu­tion are very wide but in criminal appeals this Court does not inter­fere with the concurrent findings of the fact save in exceptional circumstances.

        ii) It is open to this Court to interfere with the findings of fact given by the High Court if the High Court has acted perversely or otherwise improperly.

       iii) It is open to this Court to invoke the power under Article 136 only in very exceptional circumstances as and when a question of law of general public importance arises or a decision shocks the conscience of the Court.

       iv) When the evidence adduced by the prosecution fell short of the test of reliability and acceptability and as such it is highly unsafe to act upon it. And

        v) The appreciation of evidence and finding is vitiated by any error of law of procedure or found contrary to the principles of natural justice, errors of record and misreading of the evidence, or where the conclusions of the High Court are manifestly perverse and unsupportable from the evidence on record. (Para 11)

       (ii) Prevention of Corruption Act—Section 5(2)—Indian Penal Code, 1860—Section 161—Appellant an Assistant Electrical Engineer convict­ed under for having demanded and accepted a bribe of Rs. 500/- from complainant PW 6 for giving electric supply line for 5 H.P.—Appeal—Findings of Courts below were vitiated as due and proper consideration of material on record and proper appraisal of evidence was not made—Rs. 100/- was stated to have been paid on 25.6.1985 to appellant by complainant as part of demanded bribe and appellant pleaded defence that he was on casual leave on that day—Courts below rejected defence only on ground that attendance register was not got produced—Application of casual leave on that date was produced—Courts below acted impro­perly by discarding the defence—Another amount Rs. 150/- found in shirt pocket of accused in a trap was depos­ed by all trap witnesses and defence was that amount was put in pocket when shirt was hanging on peg and accused was away from room—Phenolphthalein powder was not used in the case—It was duty of officers in vigilance Department to safeguard for protection of public servant against whom a trap case had been laid—­Defence was probabilised from evidence—Conviction was liable to be set aside. (Paras 19, 20, 22, 25 and 26)