The standard of fitness required for granting leave to appeal under Article 134(1)(c) of the Constitution in criminal matters is more severe than that required in civil proceedings, especially when the certificate that is asked for is against an order of acquittal.

Judgement

JAGANNADHA DAS, C. J. :- This is an application for leave to appeal to the Supreme Court against the judgment of this Court in Government Appeal No.3 of 1951.*One Sri Minaketan Patnaik, Civil Supplies Officer, Bolangir, was prosecuted for having committed an offence under S.161, Penal Code, by accepting a sum of Rs.200/- as illegal gratification from one Purushottam who was examined as P.W.1. The trial court disbelieved the oral evidence given in support of the prosecution case and acquitted the accused. As against that acquittal, the State Govt. filed an appeal to this Court. It was heard by my learned brothers, Panigrahi and Narasimham, JJ. Ultimately, the appeal was dismissed by this Court. It is against that dismissal that this application for leave to appeal is made by the State.

* Reported as AIR 1952 Orissa 267.

2. The case for the prosecution very shortly stated was as follows: P.W.1 is the purchasing agent of the firm of Shivashankar Tricumjee. The accused on two occasions, once on 25-1-1950, and again on 12-2-1950, demanded a bribe from P.W.1 in order that he may use his official position to facilitate certain exports of Kudo from Kantabanji railway station, for the benefit of P.W.1 and his principal. It is further the case of the prosecution that a few days after 12-2-1950, the principal of P.W.1, viz., P.W.4, was informed about it and thereafter, on information given by him to the Police, a trap was laid for the detection of the same.

In pursuance of this trap, P.W.1, accompanied by another person P.W.3, went to the residence of the accused on 5-3-1950, with marked currency notes of Rs.200/- which were handed over by P.W.1 to the accused. Within half an hour and in accordance with the prearranged plan, the District Magistrate with the C.I.D. Inspector, and another neighbour of the accused, proceeded to the house of the accused and seized the marked notes from the accused. It will be seen from the above narration that the case against the accused depends on proof of the two previous alleged demands as well as of the actual offer and acceptance of the bribe in pursuance of those demands. The evidence of the earlier demands is that of P.W.1, corroborated by that of P.W.4, who speaks to P.W.1 having conveyed informations to him as to the demands. The evidence of the actual offer and acceptance is that of P.W.1 and P.W.3. The evidence of the fact that the offer itself was the outcome of a planned trap is that of the C.I.D. Inspector examined as P.W.8.

On an appreciation of the evidence of these witnesses, the trying Magistrate was not prepared to accept the same and acquitted the accused. A perusal of the judgments of my learned brothers, shows that Panigrahi, J., agreed with the trial court and rejected the evidence as unreliable, while Narasimham J., was inclined to hold that the prosecution case has been sufficiently made out on the evidence of these witnesses. But though thus inclined he did not wish to express dissent from the order of dismissal of the appeal which was passed by the other Judge. Panigrahi, J., and accordingly agreed thereto.

3. The main ground that has been urged before us for the purpose of grant of leave to appeal to the Supreme Court is that inasmuch as the two learned Judges came to different conclusions as to the innocence or guilt of the accused, the dismissal of the appeal was erroneous and contrary to the specific and mandatory procedure prescribed for such contingency by S.429 of the Criminal P.C. The said section runs as follows:

"When the Judges composing the Court of appeal are equally divided in opinion, the case with their opinions thereon shall be laid before another Judge of the same Court and such judge after such hearing if any as he thinks fit, shall deliver his opinion and the judgment or, order shall follow such opinion."

It is accordingly contended that the only proper course was for the case to have been laid before a third Judge for his final opinion which would be the gov