Full Judgment Text
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PETITIONER:
P. S. R. SADHANANTHAM
Vs.
RESPONDENT:
ARUNACHALAM & ANR.
DATE OF JUDGMENT01/02/1980
BENCH:
PATHAK, R.S.
BENCH:
PATHAK, R.S.
KRISHNAIYER, V.R.
FAZALALI, SYED MURTAZA
DESAI, D.A.
KOSHAL, A.D.
CITATION:
1980 AIR 856 1980 SCR (2) 873
1980 SCC (3) 141
CITATOR INFO :
D 1988 SC1531 (182)
D 1991 SC2085 (7)
ACT:
Constitution of India 1950, Article 136-Scope of
jurisdiction-High Court in appeal setting aside conviction
and sentence by trial court for murder-No appeal preferred
by government-Private party if could invoke jurisdiction
under Article 136.
Words & Phrases-’Crime’-Definition of.
HEADNOTE:
The petitioner was acquitted by the High Court in
appeal, of charges under sections 302 and 148 I.P.C., but
the brother of the deceased-not the State nor even the first
informant, petitioned this Court under Article 136 of the
Constitution for special leave to appeal against acquittal,
got leave, had his appeal heard, which was ultimately
allowed the court setting aside the judgment of the High
Court, and restoring the conviction and sentence imposed by
the trial court under section 302 I.P.C. (Arunachalam v. S.
R. Sadhananthan [1979] 3 S.C.R. 482).
The petitioner filed the writ petition under Article 32
of the Constitution, contending: (1) that Article 136 did
not empower the grant of special leave to the brother of the
deceased and the grant of special leave by the Court and its
entertaining the appeal violated Article 21 of the
Constitution, and (2) before the Court may grant special
leave under Article 136 there must be an antecedent right of
appeal absent which the question of leave by the Court does
not arise.
Dismissing the petition,
^
HELD: (per Krishna Iyer, Murtaza Fazal Ali and Desai,
JJ).
1. Justice is functionally outraged not only when an
innocent person is punished but also when a guilty criminal
gets away with it stultifying the legal system. [877H, 878A]
2. An insightful understanding of the sweep, scope and
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character of Art. 136 will easily dispel the dichotomy
between an antecedent right of appeal and a subsequent grant
of leave. [878D]
3. The jural reach and plural range of the judicial
process to remove injustice in a given society is a sure
index of the versatile genius of law-in-action as a delivery
system of social justice. Our constitutional order vests in
the summit court a jurisdiction to do justice, at once
omnipresent and omnipotent but controlled and guided by that
refined yet flexible censor called judicial discretion. This
nidus of power and process, which master-minds the broad
observance throughout the Republic of justice according to
law, is Art. 136. [878E-F]
874
4. In express terms, Art. 136 does not confer a right
of appeal on a party as such but it confers a wide
discretionary power on the Supreme Court to interfere in
suitable cases. Article 136 is a special jurisdiction. It is
residuary power; it is extra-ordinary in its amplitude, its
limit, when it chases injustice, is the sky itself. This
Court functionally fulfils itself by reaching out to
injustice wherever it is and this power is largely derived
in the common run of cases from Art. 136. [878G-H, 879A]
5. There is a procedure necessarily implicit in the
power vested in the summit court. It must be remembered that
Art. 136 confers jurisdiction on the highest court. The
founding fathers unarguably intended in the very terms of
Art. 136 that it shall be exercised by the highest judges of
the land with scrupulous adherence to judicial principles
well-established by precedents in our jurisprudence.
Judicial discretion is canalised authority, not arbitrary
eccentricity. [879A-C]
6. It is manifest that Art. 136 is of composite
structure, is power-cum-procedure-power in that it vests
jurisdiction in the Supreme Court, and procedure in that it
spells a mode of hearing. It obligates the exercise of
judicial discretion and the mode of hearing so
characteristic of the court process. In short, there is an
in-built prescription of power and procedure in terms of
Art. 136 which meets the demand of Art. 21. [879E-F]
7. If Art. 21 is telescoped into Art. 136, it follows
that fair procedure is imprinted on the special leave that
the court may grant or refuse. With a motion is made for
leave to appeal against an acquittal, this Court appreciates
the gravity of the peril to personal liberty involved in
that proceeding. While considering the petition under Art.
136 the court will pay attention to the question of liberty,
the person who seeks such leave from the court, his motive
and his locus standi and the weighty factors which persuade
the court to grant special leave. [879F-G]
8. ’The wider the discretionary power the more sparing
its exercise. The Court may not, save in special situations,
grant leave to one who is not eo nomine a party on the
record. [880C-D]
9. Sometimes indifference of bureaucratic officials, at
other times politicisation of higher functionaries may
result in refusal to take a case to this Court under Art.
136 even though the justice of the lis may well justify it.
In the absence of an independent prosecution authority
easily accessible to every citizen, a wider connotation of
the expression ’standing’ is necessary for Art. 136 to
further its mission. There are jurisdictions in which
private individuals- not the State alone-may institute
criminal proceedings. [880G-H, 881A]
10. The narrow limits set, into the concept of ’person
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aggrieved’ and ’standing’ needs liberalisation. [881E]
Baker v. Carr (1962) 369 U.S. 186, Attorney-General of
the Gambia v. Pierra Sarr N’Jie, [1961] A.C. 617, Bar
Council of Maharashtra v. M. V. Dabholkar, [1975] 2 SCC 702
referred to.
(Per Pathak and Koshal, JJ concurring).
1. Article 136 seeks to confer on the Supreme Court the
widest conceivable range of judicial power, making it
perhaps among the most powerful courts in the world. The
judicial power reaches out to every judgment, decree,
determi-
875
nation, sentence or order affecting the rights and
obligations of persons in civil matters, of life and liberty
in criminal matters as well as matters touching the Revenues
of the State. It is an attempt to ensure that the
foundations of the Indian Republic, which have been laid on
the bed-rock of justice, are not undermined by justice
anywhere in the land. [884CE]
Bharat Bank Ltd. v. Employees of the Bharat Bank Ltd.
[1950] S.C.R. 459, 474, Durga Shankar Mehta v. Thakur
Raghuraj Singh and Others, [1955] 1 S.C.R. 267, 272,
referred to.
2. Article 136 vests in the Supreme Court, a plenary
jurisdiction in the matter of entertaining and hearing
appeals by grant of special leave. However, a limitation is
inbuilt into the jurisdiction of the Court and it flows from
the nature and character of the case intended to be brought
before the Court, and it requires compliance despite the
apparent plenitude of power vested in the Court. When a
petition is presented to the Court under Article 136, the
Court will have due regard to the nature and character of
the cause sought to be brought before it when entertaining
and disposing of the petition. [884E-G]
3. A crime is an act deemed by law to be harmful to
society in general, even though its immediate victim is an
individual. Murder injures primarily the particular victim,
but its blatant disregard of human life puts it beyond a
matter of mere compensation between the murderer and the
victim’s family. Those who commit such acts are proceeded
against by the State in order that, if convicted, they may
be punished. No private person has a direct interest in a
criminal proceeding although exception may be made by the
Statute in certain cases. [885C-F]
Kenny’s Outlines of Criminal Law, 16th Edn., p. 2 para
3 Blackstones Commentaries, III p. 2, Mogul Steamship Co. v.
Mc Greger Gew & Co. [1889] 23 QBD 598; referred to.
4. The notion of crime as a threat to the whole
community is the material counter-part of the formal rule
that the State alone is master of a criminal prosecution. In
a criminal proceeding, the State stands forward as
prosecutor on public grounds. No private person has a direct
interest in a criminal proceeding, although exception may be
made by the statute in certain cases. A criminal prosecution
is not intended for the private satisfaction of a personal
vendetta or revenge. In India, the criminal law envisages
the State as the prosecutor. [885E-F]
Salmond on Jurisprudence, 12th Edn. p. 92 para 14 and
Current Legal Problems, 1955; Glanville Williams, "The
Definition of Crime", p. 107 at p. 122; referred to.
5. Under the Code of Criminal Procedure 1973, s. 378,
the right of appeal vested in the State has now been made
subject to leave being granted to the State by the High
Court. The complainant continues to be subject to the
prerequisite condition that he must obtain special leave to
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appeal. The fetters so imposed on the right to appeal are
prompted by the reluctance to expose a person, who has been
acquitted by a competent court of a criminal charge, to the
anxiety and tension of a further examination of the case,
even though it is held by a superior court. [886B-C]
876
Law Commission of India 48th Report 1972 pp. 17-21
referred to.
6. What follows from the grant of special leave is an
appeal, and the jurisdiction must, therefore, be invoked by
a petitioner possessing a locus standi recognised in law.
[887F-G]
7. Access to the jurisdiction under Article 136 cannot
be permitted to a private party who seeks to employ the
judicial process for the satisfaction of private revenge or
personal vendetta. Nor can it be permitted as an instrument
of coercion where a civil action would lie. In every case,
the Court is bound to consider what is the interest which
brings the petitioner to court and whether the interest of
the public community will benefit by the grant of special
leave. [887B-C]
8. The Court should entertain a special leave petition
filed by a private party, other than the complainant, in
those cases only where it is convinced that the public
interest justifies an appeal against the acquittal and that
the State has refrained from petitioning for special leave
for reasons which do not bear on the public interest but are
prompted by private influence, want of bona fide and other
extraneous considerations. [887E-F]
9. The procedure followed by this Court in disposing of
a petition under Article 136 is consistent with the
procedure contemplated by Article 21 for the Court in
exercising its jurisdiction will do so as a court of law
following the well-known norms of procedure which have been
recognised for long as governing and informing the
proceedings of all courts. Article 21 is, therefore, not
violated. [887G-H, 888A]
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition No. 355 of 1979.
(Under Article 32 of the Constitution)
P. R. Mridul, K. Jayaram, K. Ram Kumar and Aruneshwar
Gupta for the Petitioner.
Soli J. Sorabjee, Solicitor General, R. N. Sachthey, E.
C. Agarwala and Miss A. Subhashini for Respondent No. 1.
The Judgment of V. R. Krishna Iyer, S. Murtaza Fazal
Ali, and D. A. Desai, JJ. was delivered by Krishna Iyer, J.
and concurring opinion of R. S. Pathak and A. D. Koshal, JJ.
was delivered by Pathak, J.
KRISHNA IYER, J. Is it constitutionally valid or
desirable on principle to permit a private citizen, who has
but loose nexus with the victim of a crime, to invoke the
special power under Art. 136 of the Constitution for leave
to appeal against an acquittal of the alleged criminal
thereby putting in peril his life or liberty in the absence
of any legislative provision arming such officious outsider
with the right to appeal? This issue, profound on its face
but unsound on reflection, falls for decision in this writ
petition under Art. 32 of the Constitution. The facts,
compressed into a single sentence, are that the peti-
877
tioner was acquitted of a murder charge by the High Court in
appeal but the brother of the deceased-not the State nor
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even the first informant-moved this Court under Art. 136,
got leave and had his appeal heard which resulted in the
petitioner (accused) being convicted and sentenced to the
life term under s. 302 I.P.C. The present contention urged
to upset that conviction, is that the leave to appeal and
the subsequent proceedings were unconstitutional as
violative of Art. 21 the procedural magna carta protective
of life and liberty-and, therefore, the sentence must fail.
This plea, faintly presented before this Court when the
appeal was heard, was briefly considered and rightly
rejected. This second battle, doomed to fail like the first,
demands of us a condensed ratiocination in negation of the
contention hopefully urged by Sri Mridul, counsel for the
petitioner.
Two inter-laced issues arise and they turn on (a) the
content and character of Art. 136 vis-a-vis Art. 21, and (b)
the locus standi of a Good Samaritan, if we may use that
expression to refer to a public-spirited citizen seeking to
trigger the legal process to see that justice is done to his
neighbour.
Article 21, in its sublime brevity, guardians human
liberty by insisting on the prescription of procedure
established by law, not fiat as sine qua non for deprivation
of personal freedom. And those procedures so established
must be fair, not fanciful, nor formal nor flimsy, as laid
down in Maneka Gandhi’s case. So, it is axiomatic that our
constitutional jurisprudence mandates the State not to
deprive a person of his personal liberty without adherence
to fair procedure laid down by law. The question is whether
there is any procedure, fair or otherwise, which enables a
kindly neighbour who is not a complainant or first
informant, to appeal to the Supreme Court against an
allegedly erroneous acquittal by the High Court. The corpus
juris contains no black-letter law arming any such purely
compassionate soul to approach this Court, argues Sri
Mridul; and so, his client’s liberty has been deprived by a
proceeding initiated by someone without any procedure
established by law. We see the dexterity in the advocacy but
reject its efficacy. Nor are we impressed with the
submission that the brother of the deceased in the case, or
any other high-minded citizen, is an officious meddler who
has no business nor grievance when the commission of
grievous crime is going unpunished. There is a spiritual
sensitivity for our criminal justice system which approves
of the view that a wrong done to anyone is a wrong done to
oneself, although for pragmatic considerations the law
leashes the right to initiate proceedings in some
situations. Again, ’justice is functionally outraged not
only when an
878
innocent person is punished but also when a guilty criminal
gets away with it stultifying the legal system. The deep
concern of the law is to track down, try and punish the
culprit, and if found not guilty, to acquit the accused.
It is imperative under Art. 21 that there should be
some civilised procedure for holding a man guilty and
depriving him of his liberty. Undoubtedly, this Court, if it
grants leave under Art. 136 and eventually finds him guilty,
deprives him of his liberty; and so the crucial question
that falls for decision is as to whether there is any
procedure as predicated by Art. 21 independent of or
implicit in Art. 136. It is apparent that there is no
statutory provision which creates a right of appeal in
favour of a stranger enabling him to challenge an acquittal
by the High Court. The Criminal Procedure Code does not
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create such a right of appeal and, speaking generally, a
right of appeal is the creature of statute. So it is
submitted that before the court may grant special leave
under Art. 136 there must be an antecedent right of appeal,
absent which the question of leave by the court does not
arise. The argument is ingenious but inference is
fallacious.
An insightful understanding of the sweep, scope and
character of Art. 136 will easily dispel the dichotomy
between an antecedent right of appeal and a subsequent grant
of leave, which is the corner-stone of the contention of the
petitioner.
The jural reach and plural range of the judicial
process to remove injustice in a given society is a sure
index of the versatile genius of law-in-action as a delivery
system of social justice. By this standard, our
constitutional order vests in the summit court a
jurisdiction to do justice, at once omnipresent and
omnipotent but controlled and guided by that refined yet
flexible censor called judicial discretion. This nidus of
power and process, which master-minds the broad observance
throughout the Republic of justice according to law, is Art.
136.
Specificity being essential to legality, let us see if
the broad spectrum spread-out of Art. 136 fills the bill
from the point of view of "procedure established by law". In
express terms, Art. 136 does not confer a right of appeal on
a party as such but it confers a wide discretionary power on
the Supreme Court to interfere in suitable cases. The
discretionary dimension is considerable but that relates to
the power of the court. The question is whether it spells by
implication, a fair procedure as contemplated by Art. 21. In
our view, it does. Article 136 is a special jurisdiction. It
is residuary power; it is extra ordinary in its amplitude,
its limit, when it chases injustice, in the sky itself. This
Court functionally fulfils itself by reaching out to
injustice
879
wherever it is and this power is largely derived in the
common run of cases from Art. 136. Is it merely a power in
the Court to be exercised in any manner it fancies? Is there
no procedural limitation in the manner of exercise and the
occasion for exercise ? Is there no duty to Act fairly while
hearing a case under Art. 136, either in the matter of grant
of leave or, after such grant, in the final disposal of the
appeal ? We have hardly any doubt that there is a procedure
necessarily implicit in the power vested in the summit
court. It must be remembered that Art. 136 confers
jurisdiction on the highest court. The founding fathers
unarguably intended in the very terms of Art. 136 that it
shall be exercised by the highest judges of the land with
scrupulous adherence to judicial principles well-established
by precedents in our jurisprudence. Judicial discretion is
canalised authority not arbitrary eccentricity. Cardozo,
with elegant accuracy, has observed :
The judge, even when he is free, is still not
wholly free. He is not to innovate at pleasure. He is
not a knighterrant roaming at will in pursuit of his
own ideal of beauty or of goodness. He is to draw his
inspiration from consecrated principles. He is not to
yield to spasmodic sentiment, to vague and unregulated
benevolence. He is to exercise a discretion informed by
tradition, methodized by analogy, disciplined by
system, and subordinated to ’the primordial necessity
of order in the social life. Wide enough in all
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conscience is the field of discretion that remains."
It is manifest that Art. 136 is of composite structure,
is power-cum-procedure-power in that it vests jurisdiction
in the Supreme Court, and procedure in that it spells a mode
of hearing. It obligates the exercise of judicial discretion
and the mode of hearing so characteristic of the court
process. In short, there is an in-built prescription of
power and procedure in terms of Art. 136 which meets the
demand of Art.21.
We may eye the issue slightly differently. If Art. 21
is telescoped into Art. 136, the conclusion follows that
fair procedure is imprinted on the special leave that the
court may grant or refuse. When a motion is made for leave
to appeal against an acquittal, this Court appreciates the
gravity of the peril to personal liberty involved in that
proceeding. It is fair to assume that while considering the
petition under Art. 136 the court will pay attention to the
question of liberty, the person who seeks such leave from
the court, his motive and his locus standi and the weighty
factors which persuade the court to grant special leave.
When this conspectus of processual circumstances and
880
criteria play upon the jurisdiction of the court under Art.
136, it is reasonable to conclude that the desideratum of
fair procedure implied in Art. 21 is adequately answered.
Once we hold that Art. 136 is a composite provision
which vests a wide jurisdiction and, by the very fact of
entrusting this unique jurisdiction in the Supreme Court,
postulates, inarticulately though, the methodology of
exercising that power, nothing more remains in the objection
of the petitioner. It is open to the Court to grant special
leave and the subsequent process of hearing are well-
established. Thus, there is an integral provision of power-
cum-procedure which answers with the desideratum of Art. 21
justifying deprivation of life and liberty.
The wider the discretionary power the more sparing its
exercise. Times out of number this Court has stressed that
though parties promiscuously ’provoke’ this jurisdiction,
the Court parsimoniously invokes the power. Moreover, the
Court may not, save in special situations, grant leave to
one who is not eo nomine a party on the record. Thus,
procedural limitations exist and are governed by well-worn
rules of guidance.
Sri Mridul urged that every inquisitive benefactor or
offensive adventurer cannot ’rush in’ and upset a verdict of
acquittal by resort to Art. 136. This is really a matter for
exercise of judicial discretion and the Court can be trusted
to bear in mind time-honoured practices and the values of
Art. 21. But no dogmatic proscription of leave under Art.
136 to a non-party applicant can be laid down inflexibly.
For access to justice is not a cloistered virtue.
It is true that the strictest vigilance over abuse of
the process of the court, especially at the expensively
exalted level of the Supreme Court, should be maintained and
ordinarily meddlesome bystanders should not be granted
’visa’. It is also true that in the criminal jurisdiction
this strictness applies a fortiori since an adverse verdict
from this Court may result in irretrievable injury to life
or liberty.
Having said this, we must emphasise that we are living
in times when many societal pollutants create new problems
of unredressed grievance when the State becomes the sole
repository for initiation of criminal action. Sometimes,
pachydermic indifference of bureaucratic officials, at other
times politicisation of higher functionaries may result in
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refusal to take a case to this Court under Art. 136 even
though the justice of the lis may well justify it. While
"the criminal law should not be used as a weapon in personal
vendettas between private individuals", as Lord Shawcross
once wrote, in the absence of an indepen-
881
dent prosecution authority easily accessible to every
citizen, a wider connotation of the expression ’standing’ is
necessary for Art. 136 to further its mission. There are
jurisdictions in which private individuals-not the State
alone-may institute criminal proceedings. The Law Reform
Commission (Australia) in its Discussion Paper No. 4 on
"Access to Courts-I Standing: Public Interest Suits" wrote:
The general rule, at the present time, is that
anyone may commence proceedings and prosecute in the
magistrate’s court. The argument for retention of that
right arises at either end of the spectrum-the great
cases and the frequent petty cases. The great cases are
those touching government itself-a Watergate or a
Poulson. However independent they may legally be any
public official, police or prosecuting authority, must
be subject to some government supervision and be
dependent on government funds; its officers will
inevitably have personal links with government. They
will be part of the "establishment". There may be cases
where a decision not to prosecute a case having
political ramifications will be seen, rightly or
wrongly, as politically motivated. Accepting the
possibility of occasional abuse the Commission sees
merit in retaining some right of a citizen to ventilate
such a matter in the courts.
Even the English System, as pointed by the Discussion
paper, permits a private citizen to file an indictment. In
our view, the narrow limits set, in vintage English law,
into the concept of ’person aggrieved’ and ’standing’ needs
liberalisation in our democratic situation. In Dabholkar’s
case this court imparted such a wider meaning. The American
Supreme Court relaxed the restrictive attitude towards
’standing’ in the famous case of Baker v. Carr. Lord
Denning, in the notable case of the Attorney-General of the
Gambia v. Pierra Sarr N’ Jie, spoke thus:
....the words ’person aggrieved’ are of wide
import and should not be subjected to a restrictive
interpretation. They do not include, of course, a mere
busybody who is interfering in things which do not
concern him;
Prof. S. A. de Smith takes the same view :
All developed legal systems have had to face the
problem of adjusting conflicts between two aspects of
the public
882
interest-the desirability of encouraging individual
citizens to participate actively in the enforcement of
the law, and the undesirability of encouraging the
professional litigant and the meddlesome interloper to
invoke the jurisdiction of the courts in matters that
do not concern him.
Prof. H.W.R. Wade strikes a similar note :
In other words, certiorari is not confined by a
narrow conception of locus standi. It contains an
element of the actio popularis. This is because it
looks beyond the personal rights of the applicant; it
is designed to keep the machinery of justice in proper
working order by preventing inferior tribunals and
public authorities from abusing their powers.
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In Dabholkar’s case, one of us wrote in his separate
opinion :
The possible apprehension that widening legal
standing with a public connotation may unloose a food
of litigation which may overwhelm the judges is
misplaced because public resort to court to suppress
public mischief is a tribute to the justice system.
This view is echoed by the Australian Law Reforms
Commission.
The crucial significance of access jurisprudence has
been best expressed by Cappelletti:
The right of effective access to justice has
emerged with the new social rights. Indeed, it is of
paramount importance among these new rights since,
clearly, the enjoyment of traditional as well as new
social rights presupposes mechanisms for their
effective protection. Such protection, moreover, is
best assured by a workable remedy within the framework
of the judicial system. Effective access to justice can
thus be seen as the most basic requirement-the most
basic ’human right’-of a system which purports to
guarantee legal rights.
We are thus satisfied that the bogey of busybodies
blackmailing adversaries through frivolous invocation of
Art.136 is chimerical. Access to Justice to every bona fide
seeker is a democratic dimension of remedial jurisprudence
even as public interest litigation, class action.
883
pro bono proceedings, are. We cannot dwell in the home of
processual obsolescence when our Constitution highlights
social justice as a goal. We hold that there is no merit in
the contentions of the Writ petitioner and dismiss the
petition.
PATHAK, J: The High Court of Madras in its appellate
jurisdiction acquitted the petitioner, Sadhanantham, of
charges under s. 302 and s. 148, I.P.C. Arunachalam, a
brother of the deceased, petitioned to this Court under
Article 136 of the Constitution for special leave to appeal
against the acquittal. The court granted special leave, and
ultimately allowed the appeal, Arunachalam v. P.S.R.
Sadhanantham, and setting aside the judgment of the High
Court restored the conviction and sentence imposed by the
trial court under s. 302, I.P.C. The petitioner has filed
this writ petition contending that the judgment and order of
this Court is a nullity and should be set aside. The
principal contention is that Article 136 did not empower
this Court to grant special leave to Arunachalam (the third
respondent) and the grant of special leave by the Court and
its entertaining the appeal violates Article 21 of the
Constitution.
The maintainability of the appeal on the ground that
Arunachalam was not entitled to petition under Article 136
of the Constitution for special leave was challenged before
the Bench hearing the appeal, but the Bench over-ruled the
objection holding that it had ample power under Article 136
to entertain the special leave petition. The learned Judges
laid down that the Court had jurisdiction to entertain
appeals against judgments of acquittal by the High Court at
the instance of private parties.
We have read the judgment of our learned brother V. R.
Krishna Iyer, but because of the importance of the question
we consider it necessary to set down our own view.
The expense of the appellate jurisdiction of the
Supreme Court flows from an entire code of provisions
contained in the Constitution. It includes an appeal on
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certificate by the High Court under Article 132 that the
case involves a substantial question of law as to the
interpretation of the Constitution in a civil, criminal or
other proceeding disposed of by a judgment, decree or final
order of a High Court, and an appeal on certificate under
Article 133 that the case involves a substantial question of
law of general importance which calls for decision by the
Supreme Court. In a criminal proceeding, disposed of by a
judgment or final order or sentence of a High Court, besides
cases where the High Court has convicted the accused and
sentenced him to death either on reversing in appeal an
order of acquittal by
884
the trial court or on the case being withdrawn from the
subordinate court to itself for trial, an appeal lies to the
Supreme Court where the High Court "certifies that the case
is fit one for appeal to the Supreme Court". Article 135
confers jurisdiction and power on the Supreme Court with
respect to any matter to which Article 133 or Article 134
does not apply if such jurisdiction and power were
exercisable by the Federal Court immediately before the
commencement of the constitution. Article 136 declares:
"136. (1) Notwithstanding anything in this
Chapter, the 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."
Then follow other provisions to which we need not
refer.
Plainly, the jurisdiction conferred by Article 136
seeks to confer on this Court the widest conceivable range
of judicial power, making it perhaps among the most powerful
courts in the world. The judicial power reaches out to
every judgment, decree, determination, sentence or order
effecting the rights and obligations of persons in civil
matters, of life and liberty in criminal matters as well as
matters touching the Revenues of the State. It is an attempt
to ensure that the foundations of the Indian Republic, which
have been laid on the bed-rock of justice, are not
undermined by injustice anywhere in the land; Bharat Bank
Ltd. v. Employees of the Bharat Bank Ltd. As the Court
observed in Durga Shankar Mehta v. Thakur Raghuraj Singh and
Others. Article 136 vests in the Supreme Court a plenary
jurisdiction in the matter of entertaining and hearing
appeals by grant of special leave.
Nonetheless, there is a limitation which, in our
opinion, is of immediate relevance. It is a limitation
inbuilt into the jurisdiction of the Court and flows from
the nature and character of the case intended to be brought
before the Court. It is a limitation which requires
compliance despite the apparent plenitude of power vested in
the Court. When a petition is presented to the Court under
Article 136, the Court will have due regard to the nature
and character of the cause sought to be brought before it
when entertaining and disposing of the petition.
The question is: Does the brother of a deceased person,
who has been murdered, possess the right to petition under
Article 136 of the
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Constitution for special leave to appeal against an
acquittal of the accused ? It is a question which touches
directly on the nature of a crime and of a criminal
proceeding.
Several different definitions of a crime have been
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attempted (and there are some jurists who say that it is
impossible of definition), but there is broad agreement on
one attribute of its nature, that it is an illegal act which
amounts to a wrong against the public welfare. Mogul
Steamship Co. v. Cm Greger Gew & Co. As a concept, crime has
been defined as "any conduct which a sufficiently powerful
section of any given community feels to be destructive of
its own interests, as endangering its safety, stability or
comfort," which "it usually regards as especially heinous
and seeks to repress with corresponding severity; if
possible it secured that the forces which the sovereign
power in the State can command shall be utilised to prevent
the mischief or to punish anyone who is guilty of it."
Crimes were defined by Blackstone as "the breach and
violation of public rights and duties which affect the whole
community." A crime, therefore, is an act deemed by law to
be harmful to society in general even though its immediate
victim is an individual. Murder injures primarily the
particular victim, but its blatant disregard of human life
puts it beyond a matter of mere compensation between the
murderer and the victim’s family. Those who commit such acts
are proceeded against by the State in order that, if
convicted, they may be punished. The notion of crime as a
threat to the whole community, is the material counterpart
of the formal rule that the State alone is master of a
criminal prosecution. In a criminal proceeding the State
stands forward as prosecutor on public grounds. No private
person has a direct interest in a criminal proceeding,
although exception may be made by the statute in certain
cases. It is common knowledge that a criminal prosecution is
not intended for the private satisfaction of a personal
vendetta or revenge.
In India also, the criminal law envisages the State as
the prosecutor. Under the Code of Criminal Procedure, the
machinery of the
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State is set in motion on information received by the police
or on a complaint filed by a private person before a
Magistrate. If the case proceeds to trial and the accused is
acquitted, the right to appeal against the acquittal is
closely circumscribed. Under the Code of Criminal Procedure,
1895 the State was entitled to appeal to the High Court, and
the complainant could do so only if granted special leave to
appeal by the High Court. The right of appeal was not given
to other interested persons. Under the Code of Criminal
Procedure 1973, the right of appeal vested in the State has
now been made subject to leave being granted to the State by
the High Court. The complainant continues to be subject to
the pre-requisite condition that he must obtain special
leave to appeal. The fetters so imposed on the right to
appeal are prompted by the reluctance to expose a person,
who has been acquitted by a competent court of a criminal
charge, to the anxiety and tension of a further examination
of the case, even though it is held by a superior court. The
Law Commission of India gave anxious thought to this matter,
and while noting that the Code recognised a few exceptions
by way of permitting a person aggrieved to initiate
proceedings in certain cases and permitting the complainant
to appeal against an acquittal with special leave of the
High Court, expressed itself against the general
desirability to encourage appeals against acquittal. It
referred to the common law jurisprudence obtaining in
England and other countries where a limited right of appeal
against acquittal was vested in the State and where the
emphasis rested on the need to decide a point of law of
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general importance in the interests of the general
administration and proper development of the criminal law.
But simultaneously the Law Commission also noted that if the
right to appeal against acquittal was retained and extended
to a complainant the law should logically cover also cases
not instituted on complaint. It observed:
"Extreme cases of manifest injustice, where the
Government fails to act, and the party aggrieved has a
strong feeling that the matter requires further
consideration, should not, in our view, be left to the
mercy of the Government. To inspire and maintain
confidence in the administration of justice, that
limited right of appeal with leave given to a private
party should be retained, and should embrace cases
initiated on private complaint or otherwise at the
instance of an aggrieved person."
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However, when the Criminal Procedure Code, 1973 was enacted
the statute, as we have seen, confined the right to appeal,
in the case of private parties to a complainant. This is, as
it were, a material indication of the policy of the law.
Having regard to the fundamental nature of a criminal
proceeding to which reference has been made, it is now
appropriate to examine the considerations which the Court
should keep in mind when entertaining a petition for special
leave to appeal by a private party against an order of
acquittal. From what has been said, it is plain that ’access
to the jurisdiction under Article 136 cannot be permitted to
a private party who seeks to employ the judicial process for
the satisfaction of private revenge or personal vendetta.
Nor can it be permitted as an instrument of coercion where a
civil action would lie. In every case, the Court is bound to
consider what is the interest which brings the petitioner to
court and whether the interest of the public community will
benefit by the grant of special leave. ’In a jurisprudence
which elevates the right to life and liberty to a
fundamental priority, it is incumbent upon the court to
closely scrutinise the motives and urges of those who seek
to employ its process against the life or liberty of
another.’ In this enquiry, the Court would perhaps prefer to
be satisfied whether or not the State has good reason for
not coming forward itself to petition for special leave. We
think that the Court should entertain a special leave
petition filed by a private party, other than the
complainant, in those cases only where it is convinced that
the public interest justifies an appeal against the
acquittal and that the State has refrained from petitioning
for special leave for reasons which do not bear on the
public interest but are prompted by private influence want
of bona fide and other extraneous considerations. We would
restrict accordingly the right of a private party, other
than the complainant, to petition for special leave against
an order of acquittal. It is perhaps desirable to keep in
mind that what follows from the grant of special leave is an
appeal, and the jurisdiction must, therefore, be invoked by
a petitioner possessing a locus standi recognised in law.
In regard to the question whether the procedure
followed by this Court in disposing of a petition for
special leave under Article 136 is consistent with the
procedure contemplated by Article 21, we have no hesitation
in holding that the principle is inbuilt within the terms of
Article 136 itself that the Court in exercising its
jurisdiction will do so as a court of law following the
well-known norms of procedure which have been recognised for
long as governing and informing the
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proceedings of all courts. We have no hesitation in holding
that Article 21 is not violated.
The petitioner has failed to establish that there is a
case for interfering with the judgment of this Court
allowing the appeal.
The writ petition is dismissed, but in the
circumstances there is no order as to costs.
N.V.K. Petition dismissed.
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