Full Judgment Text
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PETITIONER:
STATE OF UTTAR PRADESH
Vs.
RESPONDENT:
R. B. AGARWAL
DATE OF JUDGMENT:
04/02/1966
BENCH:
GAJENDRAGADKAR, P.B. (CJ)
BENCH:
GAJENDRAGADKAR, P.B. (CJ)
WANCHOO, K.N.
SHAH, J.C.
SIKRI, S.M.
RAMASWAMI, V.
CITATION:
1966 AIR 1135 1966 SCR (3) 462
ACT:
Constitution of India Art. 134(1)(c)-High Court acquits
person convicted by trial court-State’s application for
certificate, if competent.
HEADNOTE:
If an accused person is convicted by the trial court and on
appeal to the High Court, his conviction is set aside the
State is entitled to apply. to the High Court for
certificate under Art. 134(1) (c). Such an application
cannot be rejected In limine on the ground that it is
incompetent; it has to be entertained and considered and
decided on the merits. [465 D]
The relevant words in Art. 134(1)(c) are wide in their
sweep. They authorise an application for a certificate from
any judgment, final order, or sentence in a criminal
proceeding of a High Court.
The sweep of the relevant words used in Art. 134(1)(c) being
very wide, it is not necessary to look for any separate
provision in the Constitution which would correspond to s.
417 code of Criminal Procedure. [464]
Observations contra in S. Majumdar v. A. Brahmachari and
Others, Cr. A. No. 21 of 1960, dt. 14-9-1964 and State
Government, Madhya Pradesh v. Ramakrisna Ganpatrao Limsey
and others A.I.R. 1954 S.C. 20, disapproved.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 178
of 1965.
Appeal by special leave from the judgment and order dated
August 26, 1965 of the Allahabad High Court (Lucknow Bench)
at Lucknow in S. C. Appeal No. 85 of 1965.
O.P. Rana, for the appellant.
R. K. Garg, for the respondent.
The Judgment of the Court was delivered by
Gajendragadkar, C. J. If an accused person is convicted by
the trial court, but on appeal to the High Court is
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acquitted, can the State move the High Court under Art.
134(1)(c) of the Constitution for a certificate that the
case, in question is a fit one for appeal to the Supreme
Court? That is the short question which arises in this
appeal by special leave.
The respondent R. B. Agarwal was committed to the sessions
for trial by the Judicial Officer, Lucknow under sections
467 and 471 of the Indian Penal Code. The learned Assistant
Sessions Judge who tried his case, dropped the charge under
section 471, but convicted the respondent under S. 467,
I.P.C. and sentenced
463
him to suffer rigorous imprisonment for five years and to
pay a: fine of Rs. 10,000/- and in default to undergo
further rigorous, imprisonment for a period of two years.
The respondent challenged the. said order of conviction and
sentence by preferring an appeal before the High Court of
Judicature at Allahabad, Lucknow Bench. The High Court
allowed the respondent’s appeal, set aside the order of
conviction and sentence imposed on him by the trial court,
and directed that he should be acquitted. The appellant,
the State of Uttar Pradesh, then applied to the High Court
for a certificate under Art. 134(1)(c) of the Constitution.
The High Court has rejected the said application on the
ground "that in view of the latest pronouncement of the
Supreme Court in S. Majumdar v. A. Brahmachari and
Others(1), Article 134 does not provide for an appeal to the
Supreme Court from an order of acquittal by the, High
Court". It is this order refusing to entertain the
appellant’s application for certificate on the ground that
it is incompetent under Article 134(i)(c), which is
challenged before us by the appellant in the present appeal.
Mr. Rana for the appellant contends that the words used in
Art. 134(1)(c) are plain and unambiguous, and they do not
justify the view taken by the High Court that it is not open
to the State to move the High Court for a certificate in a
case where the High Court has set aside the order of
conviction and sentence passed by the trial court against an
accused person. Article 134(1)(c) provides that an appeal
shall lie to the Supreme Court from any judgment, final
order or sentence in a criminal proceeding of a High Court
in the territory of India if the High Court certifies that
the case is a fit one for appeal to the Supreme Court. It
will be noticed that in the present appeal, we are not
concerned with the question as to whether the application
made by the appellant for a certificate should be granted or
not; that is a part of the merits of the enquiry which the
High Court will have to hold in case we come to the
conclusion that the High Court was in error in taking the
view that the application made by the appellant was
incompetent. The stage to consider the merits of the said
application can arise only if and after the application is
held to be competent.
Now the relevant words in Art. 134(i)(c) are wide in their
sweep. They authorise an application for a certificate from
any judgment, final order, or sentence in a criminal
proceeding of a High Court. It is difficult to see how an
order of acquittal passed by the High Court in an appeal
preferred before it by convicted accused,person cannot be
said to be a judgment, or final order in a criminal
proceeding of the High Court. Therefore, on the plain,.
words of Art. 134(1)(c), we see no escape from the
conclusion
(1) Criminal Appeal No. 21 of 1960 decided on September 14,
1964.
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464
that if an accused person is convicted by the trial court
and on appeal, the High Court sets aside the said order of
conviction, it would be competent to the State to apply to
the High Court for certificate under Art. 134(1)(c) of the
Constitution.
Art. 134(1)(a) and (b) confer a right of an appeal to this
Court, whereas Art. 134(i)(c) confers a right on the
aggrieved party to make an application for a certificate;
and it is for the High Court to consider whether the
certificate of fitness should be issued or not. Art.
134(1)(c) does not, therefore, give the State a right to
move this Court by way of an appeal against the order of
acquittal passed by the High Court in appeal. Nevertheless,
it has a right to move the High Court for a certificate in
that behalf. In our ,opinion, this position is plain and
unambiguous.
It, however, appears that in The State Government, Madhya
,Pradesh v. Ramakrishna Ganpatrao Limsey and Others (1),
this Court has made certain observations which are likely to
create .an impression that an application for a certificate
would be incompetent in regard to cases where an order of
conviction passed by ’the trial Court has been set aside by
the High Court on appeal. The said case had come to this
Court under Art. 136 by special leave, and on the merits
this Court came to the conclusion that no case had been made
out for interference by this Court with the order passed by
the High Court which was under appeal. That shows that the
question as to whether an application for a certificate
can be made by the State against an order of acquittal by
,the High Court on appeal, did not fall to be considered at
all. Even so, incidentally, this Court has referred to
Article 134 and has observed that Art. 134 does not provide
for an appeal from a judgment, final order, or sentence in a
criminal proceeding of a High Court if the High Court has on
appeal reversed an order of conviction of an accused person
and has ordered his acquittal. In this connection, it has
also been observed that there is no provision in the
Constitution corresponding to s. 417 of the Code of
Criminal Procedure and such an order is final, subject
however to the over-riding powers vested in this Court by
Art. 136 of the Constitution. With respect, the fact that
no provision has been made in the Constitution which may be
said to correspond to s. 417, Cr. P. C., is of no
significance in view of the fact that the words used in
Art. 134(1)(c) are wide enough to take in appellate ,orders
of acquittal passed by the High Courts while dealing with
appeals brought before them by accused persons who are con-
victed by the trial courts. As we have already indicated,
the sweep of the relevant words used in Art. 134(1)(c)
being very wide, it is hardly necessary to look for any
separate provision in the Constitution which would
correspond to s. 417, Cr. P. C. Therefore,
1 A.I.R. 1954 S.C. 20.
465
we do not think that the observations made by this Court in
Limsey’s case(1) can be said to represent correctly the true
legal position as to the scope and effect of Art. 134(i)(c)
of the Constitution.
In Shantiranjan Majumdar’s case(2) this Court was again
dealing with an application brought before it under Art. 136
by special leave, and in considering the merits of the
appeal, incidentally, reference has been made to the earlier
decision the Court in Limsey’s case(1) and it has been
observed that according to the said decision there is no
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provision in the Constitution corresponding to s. 417, Cr.
P. C. and, therefore, the order of acquittal made by the
High Court is final, subject however to the over-riding
powers of this Court under Act. 136 of the Constitution.
What we have said about the relevant observations made in
Limsey’s case(1) applies equally to the observations made in
Shantiranjan Majumdar’s case(2).
In our opinion, therefore, the true legal position is that
if an accused person is convicted by the trial court and on
appeal to the High Court, his conviction is set aside, the
State is entitled to apply to the High Court for a
certificate under Art. 134(1)(c). Such an application
cannot be rejected in limine on the ground that it is
incompetent; it has to be entertained and considered and
decided on the merits.
The result is the appeal is allowed, the order of the High
Court refusing to grant a certificate on the ground that the
application made by the appellant in that behalf is
incompetent, is set aside and it is remitted to the High
Court for disposal in accordance with law.
After we granted special leave to the appellant to file an
appeal against the impugned order refusing to entertain the
appellant’s application for a certificate, as a matter of
precaution, to save limitation, the appellant has also filed
an application for special leave to appeal to this Court
against the appellate decision of the High Court on the
merits. We cannot and do not propose to deal with the said
application, because 0.21 r. 2 of the Supreme Court Rules
provides, inter alia, that where an appeal lies to the
Supreme Court on a certificate issued by the High Court, no
application to the Supreme Court for special leave to appeal
shall be entertained unless the High Court has first been
moved and it has refused to grant a certificate. We would,
therefore, direct that the application for special leave
filed by the appellant should stand over until the final
decision by the High Court on the merits of the appellant’s
application for certificate which we are remitting to the
High Court for decision in accordance with law.
Appeal allowed.
(1) A.I.R. 1954 S.C. 20.
(2) Cr. App. No. 21 of 1460 dt. Sept. 14 1964
466