756 soum ASIA INDUSTRIES PRIVATE LTD. v.

S. B. SARUP SINGH AND OTHERS

January 18, 1965

(K, SUBBA RAO, RAGHUBAR DAYAL, R. S. BACHAWAT AND •

V. RAMASWAMI, JJ.]

Letters Patent for the High Court of Lahore, els. 10, 11-Delhl Rent Control Act, 1958 (Act 59 of 1958), ss. 39, 43-Sing/e Judge deci. sions-Appeal under Letters Patent-Whether taken away by legisla ture-"Fina/" meaning of- Appeal under a statute If includes Letters PaJent Appeal.

The respondents filed an application before the Controller under s. 14 of the Delhi Rent Control Act for the eviction of the appellant. Tho Controller allowed the petition and an appeal by the appellant was dismissed by the Rent Control Tribunal, against which a second appeal was filed in the High Court under s. 39 of the Act. This second appeal was dismissed by the Single Judge and when a further appeal under cl. 1 J of the Letters Patent came up for disposal before a Di\ision Bench, it was dismissed as not maintainable. In appeal HELD : (i) An appeal to the High Court will be regulated by tho practice and procedure obtaining in the High Court.

Under the rules made by the High Court in exercise of the powers conferred on :jt under s. 108 of the Government of India Act, an appeal under s. 39 of the Delhi Rent Control Act will be heard by a Single Judge. Any judgment made by the Single Judge in the said appeal will, under cl. 10 of the Letters Patent, be subject to an appeal to that Court. If the order mado by a Single Judge is a judgment and if the appropriate Legislature has, expressly or by necessary implication not taken away the right of appeal, the conclusion is inevitable that an appeal shall lie from the judg ment of a Single Judge under cl. 10 of the Letters Patent to the High Court. (765 D-E] National Sewing Thread Co. Ltd. v. lames Chadwick & Bros. Ltd. (1953] S.C.R. 1028, National Telephone Co. Ltd. v. Postniiister-General,

(1913) A.C. 546, R.M.A.R.A. Adaikappa Chettiar v. Ra.

Chandra.<e khara Thevar, (1947) I.A. 264, Secretary of State for India v. Che/likpni Rama Rao, (1916) I.L.R. 39 Mad. 617, Maung Ba Thaw v. Ma Pin, (1934) L.R. 61 I.A. 158 and Hem Singh v. Basant Das, A.LR. 1936 P.C. 93, relied on.

(ii) The expression "final" may have a restrictive meaning in other contexts, but in s. 43 of the Act such a restrictive meaning cannot be given and it indicates that no furl.her appeal is contemplated 3.gainst the order passed on appeal against the order of the Tribunal. (766 G-H; 768 Bl Maung Ba Thaw v. Ma Pin, (1934) L.R. 61 I.A. 158, Kydd v.

Liverpool Watch Committee, (1908) AC. 327 and Secretary of State

v. Hindustan Co-operative Insurance Society Ltd., A.LR. 1931 P.C. 149. referred to.

(iii) An appeal under s. 39(1) of the Act and an appeal under

cl. 10 of the Letters Patent do not form part of a single appeal. Tbey are in law and in fact different appeane given by the statute and the other by the Letters Patent.

The expression "apoeal" in s. 39 . of the Act does not take in a Letters Patent Appeal under cl. to of the Letters

Patent. (769 F-Hl

r .

ASIA INDUSTRIES v. SAllUP (Subba Rao, J.) 757

A Union of India v. Mahindra Supply Company, [196.2] 3 S.C.R. 497 and Ladli Prasad Jaiswal v. Kamal Distillery Co. Ltd. (1964] 1 S.C.R. 270, relied on.

Radha Mohan Pathak v. Upendra Patowary, A.I.R. 1962 Assam 71 and Hanskumar Kishanchand v. Union of India. (1959] S.C.R. 1177, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 726 of 1964.

Appeal from the judgment and order dated December 11, 1963 of the Punjab High Court (Circuit Bench at Delhi) in LP.A. No. 85-D of 1963.

A. V. Viswanatha Sastri, Veda V, vasa, P. N. Chaddha, S. K.

C Mehta and K. L. Mehta, for the appeilant.

Gopal Singh, for respondents Nos. 1 and 2.

Gurcharan Singh Bakshi and Gopal Singh, for respondents Nos. 3 to 5.

D The Judgment of the Coutt was delivered by

Subba Rao, J. . This appeal by certificate raises the question whether an appeal lies under cl. 10 of the Letters Patent for the High Court of Lahore, to a Divi>ion Bench of the Punjab High Court against a judgment passed by a single Judge of the said E High Court in a second appeal under s. 39 of the Delhi Rent Control Act, 1958 (Act No. 59 of 1958), hereinafter called the Act.

The facts relevant to the question raised may be briefly stated.

The respondents are the owners of plot No. 5, Connaught Circus, New Delhi.

Messrs. Allen Berry & Co. Private Ltd. took a F lease of the same under a lea5e deed dated Ma!"ch 1, 1956.

Messrs. Allen Berry & Co. assigned their interest under the said lease deed to South Asia Industries (Private) Ltd., the appellant herein.

Thereafter, the respondents filed an application before the Controller, Delhi. under s. 14 of the Act for the eviction of the appellant from the said premises on the ground that Messrs.

G Allen Berry & Co. unauthorizedly assigned the said premises in favour of the appellant.

The Controller, by his order dated October 10, 1962, allowed the petition. On January 23, 1963, the appeal filed by the appellant against the said order was dismissed by the Rent Control Tribunal, Delhi.

Against the said order of the Tribunal the appellant filed an appeal in the High . ff Court of Punjab under s. 3 9 of the Act.

The said second appeal was dismissed on May 10, 1963, by Harbans Singh, J.

The appellant filed an appeal against the judgment of the learned

single Judge to a Division Bench of the said High Court under A

cl. 10 of the Letters Patent. That appeal came up for disposal before a Division Bench of the High Court, which dismissed the same on the ground that it was not maintainable.

Hence the present appeal.

Mr. A. Viswanatha Sastri, learned counsel for the appellant B raised before us the following points : ( 1) Section 39 of the Act confers a right of appeal from an order of the Rent Control Tribunal to the High Court and, therefore, when once that appeal reaches the High Court, it has to exercise the jurisdiction in the same manner as it exercises other appellate jurisdiction, that is to say the judgment of a single Judge in that appeal becomes C subject to an appeal to the High Court under cl. 10 of the Letters Patent. (2) Section 43 of the Act is only a bar to initiate colla teral proceedings for the purpose of questioning the order of the Tribunal and it does not make the judgment of a single Judge in an appeal t1nder s. 39 of the Act final; and, that apart, a letters patent appeal is not a separate appeal to the High Court but is D only, in effect, the continuation of the same appeal in the High Court.

The arguments of M/s. Gopal Singh and Gurcharan Singh Bakshi, learned counsel for the respondents, may be summarized thus : The Act confers a special jurisdiction on the High Court to entertain an appeal; and the judgment in such an appeal does not attract cl. 10 of the Letters Patent.

That apart, the first part of cl. 10 of the Letters Patent on which the appellant relies only provides for an appeal against the judgment of a single Judge made in the exercise of the High Court's original jurisdiction; and even if is wide enough to comprehend a judgment made F in appellate jurisdiction, it should be an appeal against the order of a Court. In the instant case the Tribunal functioning under the Act is not a Court and, therefore, the judgment passed by a single Judge of the High Court against the judgment of such a Tribunal is not subject to Letters Patent appeal under the said G clause. In any view, s. 43 of the Act makes the judgment of a single Judge made in an appeal final and, therefore, to that extent, cl. 10 of the Letters Patent has been modified by the appropriate Legislature.

Let us at the outset consider the relevant provisions uninfluenced by judicial decisions.

At this stage it will be convenient H to read the material provisions of the Letters Patent governing the Punjab High Court.

Clause 11. And we do further ordain that the High Court of Judicature at Lahore shall be a Court of Appeal from the Civil Courts of the Provinces of the Punjab and Delhi and from all other Courts subject to its superintendence, and shall exercise appellate jurisdiction in such cases as were, immediately before the date of the publication of these presents subject to appeal to the Chief Court of the Punjab by virtue of any law then in force, or as may after that date be declared subject to appeal to the High Court of Judicature at Lahore by any law made by competent legislative authority for India.

Clause 10, before its amendment by Letters Patent of 1928, read as follows :

"And we do further ordain that an appeal shall lie to the said High Court of Judicature at Lahore, from the judgment (not being an order made in the exercise of revisional jurisdiction and. not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of section I 07 of the Government of India Act, 1915, or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one 1 udge of any Division Court, pursuant to section 13 of the said recited Act, and that an appeal shall also lie to the said High Court from the judgment (not being a sentence or order as aforesaid) of two or more Judges of the said High Court, or of such Division Court, whenever such Judges are equally divided in opinion, and do not amount in number to a majority of the whole of the Judges of the said High Court, at the time being; but that the right of appeal from other judgments of the Judges of the said High Court. or of such Division Court, shall be to Us, Our heirs or successors in Our or Their Privy Council, as hereinafter provided." After the amendment in 1928, cl. 10 reads:

"And we do further ordain that an appeal shall lie to the said High Court of Judicature at Lahore from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court, subject to the superintendence of the said High Court, and not being an order made in the exercise of USup./65-2

revisional jurisdiction, and not being a sentence or order passed or made in the exercise of the power of superintendence, under the provisions of s. 107 of the Government of India Act, or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to section

108 of the Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the Government of India Act, made on or after the first day of . February, 1929, in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the supe; intendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the nght of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to Us, Our heirs or successors in Our or Their Privy Council, as hereinafter provided."

The first part of cl. 11 of the Letters Patent says that the High E

Court shall be a Court of appeal from civil courts of the Provinces of Punjab and Delhi and from all other Courts subject to the superintendence of the High Court; the second part thereof empowers the High Court to exercise appellate jurisdiction in such cases as were immediately before the date of the publication of the Letters Patent subject to appeal to the Chief Court of F Punjab by virtue of any law then in force, or as may after that date be declared subject to appeal to the High Court of Judicature at Lahore by any law made by competent legislative authority for India. The second part does not make a distinction between appellate jurisdiction .over Courts and that over Tribunals which are not Courts. If a law made by a competent legislative autho- G rity declares a case to be subject to appeal to the High Court of Judicature, the said High Court acquires jurisdiction to entertain

the same and dispose of it in accordlmce with law. If the High Court entertains an appeal in terms of cl. 11 of the Lettem Patent, cl. 10 thereof is attracted to such an appea 1.

Und•r s. 108 of the Government of India Act, 1915, the High Court may by its own rules provide, as it thinks fit, for the exercise by one or more Judges or by a Division Court constituted by two

A or more Judges of the High Court, of original and appellate jurisdictions vested in the Court; and under cl. ( 2) thereof the Chief Justice of each High Court shall determine what Judge in each case is to sit alone, and what Judges of the Court, whether with or without the Chief Justice, are to constitute the several Division Courts. If in exercise of the jurisdiction under s. 108 B of the Government of India Act, 1915, an appeal filed in a High Court is posted before a single Judge of that Court and a judgment is delivered therein by that Judge, one has to look to cl. 10 of the Letters Patent whether a further appeal lies to the High Court against the said judgment.

Before the amendment of

cl. 10 of the Letters Patent in 1928, from the judgment of a C single Judge of the said High Court or one Judge of any Division Court an appeal lay to the said High Court; but there were certain exceptions to that rule. l'f the judgment was made by a single Judge in exercise of the powers of superintendence under s. 107 of the Government of India Act, 1915, or in exercise of criminal .D jurisdiction, no further appeal lay from his judgment There were no further exceptions such as that the said judgment should have been in an appeal against an order of a Court. A plain reading of the said clause indicates that except in the 3 cases excluded an appeal lay against the judgment of a single Judge of the High Court to the High Court in exercise of any other J: jurisdiction. As the clause then stood, it would appear that an appeal lay against the judgment of a single Judge of the High Court made in exercise of second appellate jurisdiction without any limitation thereon.

The effect of the amendment made in 1928, so far as is relevant to the present enquiry, is the exclusion of the right of appeal from a judgment passed by a single Judge F sitting in second appeal unless the Judge who passed the judgment grants a certificate that the case is a fit one for appeal.

The amended clause, presumably for the purpose of artistic drafting, practically leaves the first part as it was and in the second part introduces a limitation in the matter of a further appeal against the judgment of such a single Judge. Looking at G the first part of the amended clause excluding the exceptions, it is obvious that its wording is general.

Thereunder an appeal lies from the judgment of one Judge of the said High Court, whether the said judgment is made in exercise of appellate, revisional or criminal jurisdiction or where the judgment is made in II a first appeal or second appeal against the order of a Court or a

Tribunal.

Four exceptions are carved out from the general rule.

Apart, from the three exceptions to the. general .rule already noticed in the context of the unamended clause, ilie . ameiided

clause introduces another exception noticed supra.

The result is A that under the first part of cl. 10 of the Letters Patent an appeal lies from the judgment of a single Judge of the High Court passed by him in exercise of his original jurisdiction or in exercise of first appellate jurisdiction, whether the appeal is against the order of a Court or not; and in the case of second appellate jurisdiction, if the appeal is against the order of a Tribunal, which is not a B Court.

But in the case of a judgment made in a second appeal against the decree or order of a Court subordinate to the High Court, no further appeal lies unless the said Judge declares that the case is a fit one for appeal. It is not permissible, by construction, to restrict the scope of the generality of the provisions C of cl. 10 of the Letters Patent. The argument that a combined reading of els. 10 and 11 of the Letters Patent leads to the conclusion that even the first part of cl. 10 deals only with appeals from Courts subordinate to the High Court has no force.

As we have pointed out earlier, cl. 11 contemplates conferment of appellate jurisdiction on the High Court by an appropriate Legis- D lature against orders of a Tribunal.

Far from detracting from the generality of the words "judgment by one Judge of the said High Court", cl. 11 indicates that the said judgment takes in one passed by a single Judge in an appeal against the order of a Tribunal. It is said, with some force, that if this construction be accepted, there will be an anomaly, namely, that in a case E where a single Judge of the High Court passed a judgment in exercise of his appellate jurisdiction in respect of a decree made by a Court subordinate to the High Court, a further appeal to that Court will not lie unless the said Judge declares that the case is a fit one for appeal, whereas, if in exercise of his second appellate jurisdiction, he passed a judgment in an appeal against r

the order of a Tribunal, no such declaration is necessary for taking the matter on further appeal to the said High Court. If the express intention of the Legislature is clear, it is not permissible to speculate on the possible reasons that actuated the Legislature to make a distinction between the two classes of cases. lt may be, for ought we know, the Legislature thought fit to G impose a limitation in a case where 3 Courts gave a decision, whereas it did. not think fit to impose a limitation in a case where only one Court gave a decision.

This Court in National Sewing Thread Co. Ltd. v. James Chadwick & Bros. Ltd.(') construed cl. 15 of the Letters Patent H for the Bombay High Court, corresponding to cl. 10 of the Letters

(I} [1953) S.C.R. 1028, 1044.

A Patent for the Lahore High Court.

There the question was whether a Letters Patent appeal lay from a judgment of a single Judge of the Bombay High Court to a Division Bench of lhat High Court against the decision of the Registrar of Trade Marks under the Trade Marks Act, 1940.

Section 76( 1) of the said Act provided that "an appeal shall lie from any decision of the Regis- B trar under this Act or the rules made thereunder to the High Court having jurisdiction"; and the Act did not make any ptovi- . sion in regard to the procedure to be followed by the High Court in the appeal, or as to whether the order passed in the appeal was appea!able.

Two points were raised before this C Court, namely, ( 1) the provisions of the first part of cl. 15 of the Letters Patent for the Bombay High Court . could not be attracted to an appeal preferred to the High Court under s. 76 of the Trade Marks Act, 1940; and (2) the said clause would have no application in a case where the judgment could not be said to have been delivered pursuant to s. 108 of the Government D of India Act, 1915. On the first question, this Court held that the High Court being seized as such of the appellate jurisdiction conferred by s. 76 of the Trade Marks Act, 1940, it had to exercise that jurisdiction in the same manner as it exercised its other appellate jurisdiction and when such jurisdiction was exercised by a single Judge, his judgment became subject to appeal under E cl. 15 of the Letters Patent of the Bombay High Court there being nothing to the contrary in the Trade Marks Act. On the second question, this Court held thus :

"We are therefore of the opinion that section 108 of the Government of India Act, 1915, conferred power on the High Court which that Court could exercise from time to time with reference to its jurisdiction whether existing at the coming into force of the Government of India Act, 1915, or whether conferred on it by any subsequent legislation."

The difference between that case and the present one is that the G single Judge in that case passed a judgment in a first appeal against the order of the Registrar, while in the present case the single Judge passed an order in a second appeal. But that will

not make any difference in the construction of the first part of

cl. 10 of the Letters Patent for the High <;::ourt of Lahore, corresponding to cl. 15 of the Letters Patent for the High Court of H Bombay.

Another difference is that while under the last part of

cl. 11 of the Letters Pate.nt for the Lahore High Court there are the words "or as may after that date be declared subject to

764 SUPllBMB COUllT llBPOR.TS

[1965] 2 S.C.R.

appeal to the High Court of Judicature at Lahore by any law A made. by competent legislative authority for India", the said words are absent in the corresponding cl. 16 of the Letters Paten~ for the Bombay High Court.

Notwithstanding the said omission this Court in the said case held that the appeal under the Trade Marks Act was an addition of a new subject-matter of appeal to the appellate jurisdiction already exercised by the High Court B and that the rules made under s. 108 of the Government of India Act, 1915, applied to the same. It is contended that in that case it was not argued that the Registrar was not a Court, and therefore the Supreme Court assumed that the Registrar was a Court and on that assumption held that the first part of cl. 15 of the Letters Patent of the Bombay High Court was attracted. We C do not see any justification for this argument One of the contentions raised before the Court was that the Trade Marks Act created a new Tribunal and conferred a new appellate jurisdiction on the High Court.

This Court rejected that contention with the following words : D

"The statute creates the Registrar a tnbunal for safeguarding these rights and for giving effect to the rights created by the Act and the High Court as such without more has been given appellate jurisdiction over the decisions of this tribunal." E The entire judgment proceeded on the basis that the Registrar was only a tribunal. It is not possible to visualize that both the Advocates as well as the Judges of this Court missed the point that the tribunal was not a Court and, therefore, applied the first part of cl. 15 of the Letters Patent of the Bombay High Court.

Indeed, the question of applicability of s. 108 of the Government F of India Act, 1915, to the appeal in that case would not have arisen if it was an appeal against the order of a civil Court.

We, therefore, cannot countenance the argument that this Court assumed that the Registrar was a Court in applying cl. 15 of the Letters Patent of the Bombay High Court in the appeal in question in that case.

This decision therefore covers the question G now raised before us.

The relevant rule applicable to the present case has been statied by this Court in the aforesaid decision thus;

"Obviously after the appeal had reached the High Court it has to be determined according to the rules of practice and proced11.-e of that Court and in accordance with the provisions of the charter under which that

Court is constituted and which confers on it power in respect to the method and manner of exercisfug that jurisdiction. The rule is well settled that when a statute directs that an appeal shall lie to a Court already established, then the appeal must be regulated by the practice and procedure of that Court."

Thill principle was laid down by the Judicial Committee in a number of decisions : see National Telephone Co., Ltd. v.

Postmaster-General('); R.M.A.R.A. Adaikappa Chettiar v. Ra.

Chandrasekhara Thevar( 2 ); Secretary of State for India v. Chellikani Rama Rao( 8 ); Maung Ba Thaw v. Ma Pin('); and Hem c Singh v. Basant Das(").

The following legal po' ition emerges from the said discussion : A statute may give a right of appeal from an order of a tribunal or a Court to the High Court without any limitation thereon.

The appeal to the High Court will be regulated by the D practice and procedure obtaining in the High Court.

Under the rules made by the High Court in exercise of the powers conferred on it under s. 108 of the Government of India Act, 1915, an appeal under s. 39 of the Act will be heard by a single Judge.

Any judgment made by the single Judge in the said appeal will, under cl. 10 of the Leners Patent, be subject to an appeal to E that Court.

If the order made by a single Judge is a judgment and if the appropriate Legislature has, expressly or by neccessary implication, not taken away the right of appeal, the conclusion is

inevitable that an appeal shall lie from the judgment of a single Judge under cl. 10 of the Letters Patent to the High Court. It follows that, if the Act had not taken away the Letters Patent F appeal, an appeal shall certainly lie from the judgment of the single Judge to the High Court.

In the view we have expressed it is not necessary to consider the question whether the tribunal is a court or not, for, as we have pointed out earlier, it is not germane to the question of G maintainability of the Letters Patent appeal.

The next question is whether the right of appeal conferred by

cl. 10 of the Letters Patent, Lahore, has been taken away by a law made by the appropriate Legislature.

It is conceded that the appropraite Legislature can take away that right : see cl. 37 of the Letters Patent, Lahore. It is argued by the learned

(I) [1913] A.C. 5'16.

(2) [1947! 74 I.A. 264.

(3) (1916) l.L.R. 39 Mad. 617.

(4) (1934) L.R. 61I.A.158.

(5) A.l.R. 1936 P.C. 93.

766 SUPP.BMB COUl.T P.BPORTS

counsel for the respondents that s. 43 of the Act has that ellect.

The relevant provisions of the Act may now be noticell.

Section 39. (1) Subject to the provisions of subsection ( 2), an appeal shall lie to the High Court from an order made by the Tribunal within sixty days from the date of such order.

( 2) No appeal shall lie under sub-section ( 1 ) , unless the appeal involves some substantial question of law.

Section. 43. Save as otherwise expressly provided in

this Act, every order made by the Controller or an C order passed on appeal under this Act shall be final and shall not be called in question in any original suit, application or execution proceeding.

A combined rending of the said two sections may be stated thus Subject to the right of appeal to the High Court on a substantial D question of law, the order passed by the High Court on appeal is final and it shall not be called in question in any original suit.

application or execution proceeding.

Mr. Viswanatha Sastri contends that the last sentence in s. 43 of the Act gives colour to the expression "final".

According to him, finality is only wiW. reference to collateral proceedings, such as, suits, applica- E tions and execution proceedings.

The expression "final" pr/ma facie connotes that an order passed on appeal under the Act is conclusive and no further appeal lies against it.

The last sentence in s. 43 of the Act, in our view, does not restrict the scope of the said expression; indeed, the said sent-ncc imposes a further bar. The expron F "final" in the first part of s. 43 of the Act puts an end. to a further appeal and the words "shall not be called in question m any original suit, application or execution proceeding" bar collateral proceedings. The section imposes a total bar.

The comictness of the judgment in appeal cannot be questioned by way of appeal or by way of collateral proceedings.

It is true that the G expression "final" may have a restrictive meaning in other contexts, but in s. 43 of the Act such a restrictive meaning cannot be given, for Ch. VI of the Act provides for a hierarchy of tribunals for deciding disputes arising thereunder. The Act is a selfcontained one and the intention of the Legislature was to provide H an exhaustive code for disposing of the appeals arising under

the Act. The opening words of s. 43 of the Act "save as otherwise expressly provided in this Act" emphasize the fact that the

A finality of the order cannot be questioned by resorting to something outside the Act..

Some of the decisions cited at the Bar defining the expression "final" may usefully be referred to.

In Maung Ba Thaw v. Ma Pin(1) the Judicial Committee had to consider whether an appeal lay to the Privy Council against the order of the High Court under s. 75(2) of the Provincial Insol- B vency Act, 1920. The said Act provided by s. 4(2) that subject to the provisions of the Act and notwithstanding anything contained in any other law for the time being in force, the decision of the District Court under the Act was final; but under s. 75 (2).

IK>wever, there was a right of appeal to the High Court from the

clecision of the District Court. The Judicial Committee held that c in a case where the Act gave a right to appeal to the High Court. an appeal from the decision of the High Court lay to the Prviy Council under, and subject to, the Code of Civil Procedure.

It reiterated the principle that where a Court is appealed to as one of the ordinary Courts of the country, the ordinary rules of the D Code of Civil Procedure applied. It will be noticed at once that the order of the District Court was final subject to the provisions o{ the said Act and under the said Act a right of appeal was given to the High Court. The' order of the High Court in the appeal was not made final.

Therefore, the Judicial Committee held that an appeal lay to the Privy Council against the order of E the High Court. This decision, therefore, does not really help the appellant.

In Kydd v. Liverpool Watch Committee(') the facts were as follows : Under s. 11 of the Police Act, 1890 (53 & 54 Viet. c. 45), there was an appeal to quarter sessions as to the amount of a constable's pension.

The duty of the quarter

session was stated thus : .

"that Court, after inquiry into the case, may make such order in the matter as appears to the Court just, which order shall be final."

Lord Lorebum, L.C. construed the said section thus :

"Where it says, speaking of such an order, that it is to be final, I think it means there is to be an end of the business at quarter sessions ........ ".

The Judicial Committee again in Secretary of State v. Hindustan Co-operative Insurance Society Ltd.(') construed the expression "final" and held that the expression was intended to exclude any H further appeal. There, under s. 71 of the Calcutta Improvement

(1) (1934) L.R. 61 I.A. IS8.

(2) [1908] A.C. 327, 331-332.

(3) A.I.R. [1931] P.C. 149.

768 SUPllBMB COUllT llBPOllTS [196SJ 2 S.C.ll.

Act, 1911, a limited right of appeal to the High Court was given A from an award of the Tribunal and it provided that, subject to that right only, the award should be final.

Their Lordships held that the provision for finality was intended to exclude any forth~ appeal.

No further citation is called for.

As we have stated, the expression "final" in s. 43 of the Act indicates that no further appeal is contemplated against the order passed on appeal B against the order of the Tribunal.

To escape from this construction a larger scope is sought to be given to the expression "appeal to the High Court". It is said that the expression "appeal" in ss. 43 and 39 of the Act means an appeal to the High Court and not to a single Judge and that c the said appeal is finally disposed of only by the final judgment of the High Court. It is said that whatever may be the internal arrangement in disposing of that appeal, there is only one appeal till it is finally disposed of.

This argument is plausible, but it has not found favour with this Court. This Court in Union of India v. Mohindra Supply Company(') considered the question D whether s. 39(2) of the Indian Arbitration Act, 1940, has taken away the right of appeal under the Letters Patent Section 39(2) of the said Act reads as follows :

"No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or .take away any right to appeal to the Supreme Court" lt was argued, as it is argued before us, that the second appeal under the section referred to an appeal to a superior Court and

not to appeals "intra-Court" and, therefore, s. 39(2) of the Arbitration Act did not operate to prohibit an appeal under the F Letters Patent against the order of a single Judge. This Court held that the expression "second appeal" included an appeal under the iLetters Patent.

This decision ruled that a Letters Patent appeal is not a part of the appeal filed in the High Court against the award of the Arbitrator, but is a fresh appeal against the order of the single Jutlge. This Court in Ladli Prasad Jais- G wal v. Kamal Distillery Co., Ltd. (2 ) held that the expression ''Court immediately below" in Art. 133(1)(a) of the Constitution took in a single Judge of the High Court There, the judgment of the District Judge was reversed by the single J ndge of the High Court.

Against the order of the single Judge of the High Court in appeal from that of the Subordinate Judge a letters H patent appeal was preferred to a Division Bench of the High

(1) [1962J 3 S.C.R. 497. (2} [1964] I S.C.ll. 270.

A Court and the said Division Bench affirmed the judgment of the single Judge. The quesion arose whether the single Judge was a Court immediately below the Division Bench. For the respondent it was contended that the judgment of the High Court against which the appeal was preferred affirmed the decision of the Court B immediately below and that the appeal did not involve any substantial question of Jaw and, therefore, the High Court was not competent to grant a certificate under Art. 133(1) (a) of the Constitution.

For the appellant it was urged that the appeal against the judgment of the single Judge to a Division Bench under cl. 10 of the Letters Patent was a "domestic appeal" within C the High Court and in deciding whether the decree of a Division Bench in an appeal under the Letters Patent from a decision of a single Judge exercising appellate jurisdiction affirmed the decision of the Court immediately below, regard must be had to the decree of the Court subordinate to the High Court, against the decision of which appeal was preferred to the High Court. n This Court came to the conclusion that the expression "Court

immediately below" in Art. 133(l)(a) must mean a Court from

the decision of which the appeal has been filed in the High Court, whether such a Judge was a single Judge of the High Court or a Court subject to the Superintendence of the High Court.. It will be seen that if a Letters Patent appeal was E only a continuation of the appeal filed from the decree of the District Judge by a domestic arrangement, this Court would have held that the judgment in the Letters Patent appeal was not a judgment of affirmation but one of reversal of the judgment of the District Court. This decision, therefore, recognizes that an appeal disposed of by a single Judge of the High Court and the appeal F from the judgment of the single Judge to a Division Bench thereof are different appeals. Apart from these decisions, on principle we do not see any justification to hold that an appeal under s. 39 (1) of the Act and an appeal under cl. 10 of the Letters Patent form part of a single appeal. They are in law and in fact different appeals-one given by the statute and the other by the Letters G Patent. We cannot, therefore, accede to the argument advanced by the learned counsel for the appellant that the expression "appeal" in s. 39 of the Act takes in a Letters Patent appeal under

cl. 10 of the Letters Patent

Learned counsel for the respondents further contended that H s. 39 of the Act conforred a special jurisdiction on the High Court as persona designata and therefore, the decision of the single Judge in appeal is not a "judgment" within the meaning of

•Cl. 10 of the Letters Patent. In support of this view reliance was A placed, inter aiia, on Radha Mohan Pathak v. Upcndra Patowary(1) and Hanskumar Kishanclzand v. The Union of lndia( 2 ). "But, in the view we have expressed on the construction of s. 39, read with s. 43, of the Act, it is not necessary to deal with that question in this appeal.

We shall not be understood to have expressed our opinion on this question one way or other.

In the result, the appeal fails and is dismissed with costs.

(I) A.l.R. 1962 Assam 71.

(2) _[1959] S.C.R. llT.

Appeal di&missed

756 soum ASIA INDUSTRIES PRIVATE LTD

S. B. SARUP SINGH AND OTHERS

SUBBA RAO

RAGHUBAR DAYAL

R. S. BACHAWAT

V. RAMASWAMI, JJ.

Delhl Rent Control Act, 1958

ss. 39, 43

s. 14

s. 39

cl. 1

s. 108

s. 39

cl. 10

cl. 10

(1934) L.R. 61 I.A. 158

s. 43

(1934) L.R. 61 I.A. 158

s. 39(1)

cl. 10

s. 39

(1964] 1 S.C.R. 270

A. V. Viswanatha Sastri

Veda V

P. N. Chaddha

S. K.

C Mehta

K. L. Mehta

Gopal Singh

Gurcharan Singh Bakshi

Subba Rao

cl. 10

High Court of Lahore

Punjab High Court

s. 39

Delhi Rent Control Act, 1958

New Delhi

Allen Berry & Co. Private Ltd.

Allen Berry & Co.

South Asia Industries (Private) Ltd.

s. 14

October 10, 1962

January 23, 1963

Rent Control Tribunal, Delhi

High . ff Court of Punjab

s. 3

May 10, 1963

Harbans Singh

cl. 10

A. Viswanatha Sastri

Section 39

cl. 10

Section 43

s. 39

Gopal Singh

cl. 10

cl. 10

s. 43

cl. 10

Clause 11

High Court of Judicature at Lahore

India

Clause 10

Government of India Act, 1915

section 13

cl. 10

s. 107

section

108

section 108

cl. 11

Punjab

cl. 11

cl. 10

s. 108

Government of India Act, 1915

s. 108

Government of India Act, 1915

cl. 10

cl. 10

s. 107

Government of India Act, 1915

cl. 10

cl. 10

cl. 10

cl. 11

cl. 11

cl. 15

cl. 10

Lahore High Court

Bombay High Court

Trade Marks Act

Section 76( 1)

cl. 15

s. 76

Trade Marks Act, 1940

s. 108

Government D of India Act, 1915

s. 76

Trade Marks Act, 1940

cl. 15

Trade Marks Act

section 108

Government of India Act, 1915

cl. 10

cl. 15

cl. 11

cl. 16

Trade Marks Act

s. 108

Government of India Act, 1915

Supreme Court

cl. 15

Trade Marks Act

cl. 15

s. 108

Government F of India Act, 1915

cl. 15

s. 108

Government of India Act, 1915

s. 39

cl. 10

cl. 10

cl. 10

cl. 37

s. 43

Section 39

Viswanatha Sastri

s. 43

s. 43

s. 43

s. 43

s. 43

s. 75(2)

Provincial Insol- B vency Act, 1920

s. 4(2)

s. 75

the Code of Civil Procedure

Code of Civil Procedure

s. 11

Police Act, 1890

Lorebum

s. 71

s. 43

ss. 43 and 39

s. 39(2)

Indian Arbitration Act, 1940

Section 39(2)

s. 39(2)

Art. 133(1)(a)

Art. 133(1)

cl. 10

Art. 133(l)(a)

s. 39

cl. 10

s. 39

cl. 10

s. 39

Cl. 10

s. 39

s. 43


BABU AND 3 OTHERS

STATE OF UTIAR PRADESH

January 19, 1965

[K. N. WANCHOO, M. HIDAYATULLAH, J. C. SHAH,

J. R. MUDHOLKAR AND S. M. SIKRI JJ.)

Division Bench-Difference between two judges refe"ed to a t_hird Judg~Thirtl Judge how far free to come to his own conclusion-Code of Criminal Procedure, (Act 5 of 1898), s. 429.

Certificate of fitness-High Court when should grant certificate in criminal cases-Constitution of India Art. 134(1) (c).

The appellants were convicted by the Sessions Judge under s. 312 Pead with s. 34 of the Indian Penal Code. Two of them were sentenced to death and two to imprisonment for life. Their appeal before the High Court was heard by a Division Bench of two judges, one of whom was for allowing it, the other for dismissing it. The third Judge to whom it was referred dismissed tho appeal. The appellants applied for a certificate of fitness to appeal to the Supreme Court.

The certificate was gtanted mainly on the ground that the third Judge who heard the appeal hid omitted to discuss at length the question of the genuineness of the

lint information report.

In the Supreme Court objection was taken on behalf of the State that the certificate of fitness granted by the High Court was incompetent .E in view of the previous dicisions of this Court in Haripada Dey v. State of West Bengal & Anr. [1956] S.C.R. 639, Nar Singh & Anr. v. State of

Uttar Pradesh, [1955] I S.C.R. 238, Sunder Singh v. State of Uttar Pradesh, A.I.R. (1956) S.C. 411 and Khusha!rai v. State of Bombay, [1958]

S.C.R. 552.

The appellants urged that these cases be reconsidered.

A plea for the reduction of the death sentences was also made.

HELD: (i) Section 429 of the Criminal Procedure Code contem F plates that it is for the third Judge to decide on what points he shall bear arguments, if any, and that postulates that he is completely free in resolving the difference as he thinks fit.

It was sufficient for the third Judge to have said on the question of the First Information Report that be did not consider it necessary to decide the point but if it was necessary he was in agreement with the Judge on the Division Bench who was for dismissing the appeal.

There was therefore a proper decision by the third Judge and the certificate could not be based on the omission to G &scus.. the doubts about the First Information Report. [771 F-H]

(ii) The Constitution does not contemplate a criminal jurisdiction for this court except in these cases covered by clauses (a) and (b) of Ari. 134 which provide for appeals as of right. The High Court before it certifies the case must be satisfied that it involves some substantial l':tion of law or principle._ On!~ a case involviug something. m~ mere appreciation of evidence ts contemplate~ by the Constituti':"' for the grant of a certificate. What that may be will depend on the circumstances of the case but the High Court should be slow to certify CllllOS.

The High Court. should not .overlook tha~ there _is a further remedy by way of special leave which may be mvoked 1n cases where

772 SUPREME COUllT REPORTS

[1965] 2 S.C.R

the certificate is refused. The present certificate did not comply with the A requirements of Art. J34(1)(c) as explained above. [780 C-P; 781 Al

Case law considered.

(iii) That whenever two Judges in appeal differ on the question of sentence, death sentence should not be imposed without compelling reasons cannot be raised to the pedestal of a rule, for that would leave the sentence to the determination of one Judge to the exclusion of the other.

Each case must be decided on its own facts and a sentence of imprisonment for life can only be substituted if the facts justify that the extreme penalty of Jaw should not be imposed. [781 E-P]

Ka/awati and Another v. State of Himacha/ Pradesh, [1953] S.C.R. 546 and Pandurang, Tukia and Bhillia v. State of Hyderabad, [19551

1 S.C.R. 1083, referred to.

CRIMINAL APPELLATE JUllISDICTION: Criminal Appeal No. 179 of 1964.

Appeal from the judgment and order dated August 21, 1963, of the Allahabad High Court in Criminal Appeals Nos. 2271 ancl 2272of1962.

Nur-ud-din Ahmad and J. P. Gayal, for the appellants.

0. P. Rana, for the respondent.

The Judgment of the Court was delivered by Hidayatullah, J.-This is an appeal by certificate against the judgment of the High Court of Allahabad dated May 24, 1963 by which the conviction of and sentences passed on the four E appellants under s. 302 read with s. 34 of the Indian Penal Code were confirmed. Of the appellants, Babu Singh and Aram Singh have been sentenced to death and Gajram Singh and Ram Singh to imprisonment for life.

The charge against them was that they had murdered one Babu Singh pradhan at village Behjoi on October 11, 1961. The pradhan was attacked by the appel- F !ants with spears, gandasa and lathi.

The spears were with Aram Singh and Ram Singh, the gandasa with Babu Singh and the lathi with Gajram Singh.

The motive for the attack was said to be some former quarrels between Babu Singh pradhan and father of Babu Singh, the appellant and the action of the pradhan after G his election in supporting on behalf of the Gaon Samaj proceedings for encroachment started against the fathers of the appellants ientenced to death.

On the day of occurrence Babu Singh pradhan had gone on cycle to Behjoi to negotiate for the purchase of a Persian wheel.

He had his cycle repaired by one Amrik Singh who was examined H as a court witness.

He was returning to his own village Alpur situated to the North-East of Behjoi at a distance of four miles

A when he was way-laid, felled from the cycle and fatally attacked by the appellants.

The report of the incident was made by his brother Sangram Singh at Behjoi Police Station at 8.30 P.M.

Sangram Singh claimed to have accompanied his brother to Behjoi and to be in his company at the time of the assault.

He was the principal eye-witness in the case.

He gave the time of the assault B as 6 P .M. The First Information Report also mentioned the names of Man Sukh (P.W. 9), Ved Ram (P.W. 4) and Jia Lal (P.W. 11)

as eye-witnesses.

In the Report one Umrao was also named but he was not examined as it was alleged that he had been won over by the defence. c The prosecution examined 16 witnesses in support of the case.

Two witnesses were examined by the court and 4 witnesses were examined for the defence.

The Sessions Judge, Moradabad accepted the evidence of enmity and also of the eye-witnesses and convicting the appellants under s. 302/34, Indian Penal Code sentenced them as above.

Aram Singh who had struck Babu D Singh pradhan on the head and transfixed it with his spear from

temple to temple and caused other injuries on vital organs waa sentenced to death as also Babu Singh who had almost decapitated Babu Singh pradhan with gandasa.

The other two appellants were given the lesser punishment because they had played a minor part.

All accused appealed to the High Court.

I The appeal was heard in the High Court by D. S. Mathur and Gyanendra Kumar, JJ. and Mathur, J. was for dismissing the appeal while Gyanendra Kumar, J. was for allowing it.

The points of difference were (a) whether the First Information Report was made on October 11, 1961 at 8.30 P.M. or much later, (b) wh~ r p!er the offence took place at 6 P.M. or later when there was no fight to identify the assailants and ( c) whether the eye-witnesses were at all present at the scene and/or were reliable. Mathur J. concurred with all the conclusions of the Sessions Judge; Gvaoendra Kumar, J. differed because he disbelieved that Sanrrram Singh had accompanied his brother.

His reasons were that he G need not have accompanied the pradhan and the shop-keeper with

whom the brothers were said to have dealt for the purchase of the Persian wheel was not examined and Amrik Singh who repaired the cycle of the pradhan did not mention Sangram Singh.

He observed that if Sangram was present at the scene he too would have been slain and the statement that he .was pedalling 14 or 15 B paces behind the pradhan was not believable because cyclists generally ride abreast. He pointed out that as only one cycle was found at the spot and not the other Sangram Singh had not

SUPREME COURT REPORTS

[ 1965] 2 S.C.R.

gone there on cycle.

He deduced this from the fact that Sangram A Singh admitted to have gone on foot to Behjoi to make his report and he rejected his explanation that he did so because the cycle had no light observing that Sangram Singh could have borrowed an electric torch or some other light.

He disbelieved V ed Ram because he had earlier spoken of lathi blows and no injuries caused by a lathi were detected at the postmortem examination. B One of the accused (Ram Singh) had passed a decree against Ved Ram as a Sarpanch and this was accepted to be the probable motive for his false testimony.

Man Sukh was not believed be'- cause he was a previous "history sheeter". Jia Lal, who had stated that the occurrence took place at 7 P.M., and was consequently declared hostile by the prosecution, was believed by the learned C Judge who came to the conclusion that no light was available at that hour for proper identification.

The learned Judge was also convinced that ¢.ere was a delay in the despatch of the copy of the First Information Report, special report and the case diary, and he was of the opinion that the First Information did not 0 accompany the requisition for postmortem examination sent to the doctor.

He was finally of the view that as no independent eyewitness was examined the benefit of the doubt must be given to the accused.

The two judgments were then laid before Takru, J. who agreed with Mathur, J. in accepting the prosecution case. As a result ef E his decision the appeals were dismissed.

On the application for certificate of fitness the two learned Judges, who had originally heard the appeal, again differed : Mathur, J. was in favour of refusing the certificate while Gyanendra Kumar, J. was for granting it.

The latter stated that the main point of difference earlier was over F the authenticity of the First Information Report, its time and date and Takru, J. had merely stated at the end of his order that if it was necessary for him to decide the point he would have agreed with Mathur, J. and would have accepted the First Information Report as genuine. Gyanendra Kumar, J. felt considerably aggrieved, as it appears from his order, that this matter. which was fully argued G before Takru, J. was not discussed by him in detail. The papers were laid before Broome, J. who agreed with Gyanendra Kumar, J. on the point that Takru J. had not gone into the question of the authenticity of the First Information Report and the genuineness of the various documents which were filed by the prosecution in support of it.

He was for granting a certificate.

H When this appeal came on for hearing before a Divisional Bench the State raised the contention that the certificate granted by

A the High Court was incompetent in view of the settled view of this Court in Haripada Dey v. The State of West Bengal and Anr.(') Nar Singh and Anr. v. The State of Uttar Pradesh(') and Sunder Singh v. State of Uttar Pradesh("). The appellants then objected that the point involved was one of interpretation of Art. 134 ( 1) ( c) of the Constitution and it could only have been decided by a Bench B of five Judges and the decisions above-mentioned being of Divisional Benches were without jurisdiction.

The case was accordingly laid before us for disposal. Before us the same objection to the competency of the appeal was raised and it was contended on the other side that the decisions of this Court limiting the powers of the High Court to grant certificate in criminal cases under Art.

C 134(l)(c) were not correct and it is these points which require decision from us.

There seems to be some misapprehension about the manner in which the third Judge is required by law to proceed when there is a difference of opinion between two learned Judges in the High D Court in the decision of an appeal.

The provisions of s. 429, Criminal Procedure Code perhaps escaped notice in the High Court.

This section provides ;

"429. Procedure where Judges of Court of Appeal are equally divided.

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." The s:ction contemplates tllat it is for third Judge to decide on what points he shall hear arguments, if any, and that postulates that he is completely free in resolving the difference as he thinks fit.

In our judgment, it was sufficient for Takru J to have said on the question of the First Information Report tht he did not consider it G necessary to decide the point but if it was necessary he was in agreement with all that Matht•r J had said.

There was, therefore, a proper decision by Takru J and the cer:ificate could not be based upon the omission to discuss the First Information Report and the doubts about it.

It was contended by the State that the certificate attempted to H reopen questions of fact which must be held to be decided finally

(1) [1956] s.c.R. 639.

(2) [1955] 1 S.C.R. 238.

(3) A. I. R. [1956] S.C. 411.

USup./65-3

SUPIU!MB COURT REPORTS

by the High Court in concurrence with the Sessions Judge and such A a certificate was incompetent in view of the decisions of this Court earlier mentioned.

Reference was also made to Khushalrao v.

State of Bombay('). The appellants in reply contended that the interpretation put upon Art. 134 ( 1) ( c) in the earlier cases of this Court was too narrow and required to be reconsidered.

B Article 134 provides for appeals to the Supreme Court in criminal matters.

Clause ( 1) of this Article, which alone is material • reads:

"134. Appellate jurisdiction of Supreme Court in regard to criminal matters. ( 1) 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- ( a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death; or

(b) has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to death; or ( c) certifies that the case is a fit one for appeal to the Supreme Court : Provided that an appeal under sub-clause ( c) shall lie subject to such provisions as may be made in that behalf under clause ( 1) of article 145 and to such conditions as the High Court may establish or require. (2)

The first two sub-clauses deal with special situations and provide

for an appeal as of right and they need not be considered.

The third sub-clause permits an appeal in cases which the High Court certifies as fit for appeal.

The sub-clause does not state the condi- G lions necessary for such certification.

No rules under Art. 145 regulating generally the practice and procedure of this Court for the grant of certificate by the High Court have been framed.

The power which is granted is no doubt discretionary but in view of the word "certifies" it is clear that such power must be exercised with great circumspection and only in a case which is really fit for ap- H peal.

It is impossible by a formula to indicate the precise limits

(I) [19S8] S.C.R. SS2.

BABU v. STATli (Hidayatullah, /.) 777

A of such discretion, but the question has arisen on a number of occasions in this Court and some of the leading views may be considered.

In Haripada Dey v. The State of West Bengal and Anr.(1), the appellant was convicted under s. 411, Indian Penal Code and " sentenced to two years' rigorous imprisonment for dishonestly receiving and retaining a motor car which he had reason to believe was stolen.

His appeal was dismissed by J.P. Mitter and Sisir Kumar Sen, JJ.

He applied for a certificate and according to the practice of the Calcutta High Court the petition was placed not 11cfore the Judges who heard the appeal but before another Bench C consisting of the Chief Justice and Lahiri J. The Chief Justice passed an elaborate order in the course of which he observed :

"In my view a certificate of fitness ought to issue in this case, although the question involved is one of fact.

In my view it is impossible not to feel in this case that there has not been as full and fair a trial as ought to have been held.

In the circumstances, it appears to me that the petitioner is entitled to have his case further consi- 1: dered and since such further consideration can only be given by the Supreme Court, I would grant the certificate prayed for." Aa the chief Justice himself said the question involved was one of fact, this Court did not approve of the certificate and held that it was no certificate at all.

It was pointed out that a certificate F granted in Criminal Appeal No. 146 of 1956 (Om Prakash v. State of U.P.) was not accepted when no reasons were given and that the certificate in Haripada Dey's(' ), case was also bad because the reasons were not sound. Bhagwati J, speaking on behalf of Imam and Govinda Menon JJ and himself, said :

"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 article 134(1) (c) in a case where admittedly in his opinion the question involved was one of face-where in spite of a full and fair trial not having been vouchsafed to the appellant, the question was merely one of a further

(1) (1956] S.C.ll. 639.

778 SUPl.BMB OOUJ.T llEPORTS

consideration of the case of the appellant on facts. The mere disability of the High Court to remedy this circumstance and vouchsafe a full and fair trial could not be any justification for granting a certificate under article 134(1) (c) and converting this Court into a Court of Appeal on facts.

No High Court has the jurisdiction to pass on mere questions of fact for further consideration by this Court under the relevant articles of the Constitution."

The observations, if we may say so with respect, are too absolute to be a safe guide in the infinite variety of cases that come before the courts.

There are cases and cases.

It can C only safely be said that under Art. 134 ( 1 )( c) this Court has not been made an ordinary Court of Criminal Appeal and the High Courts should not by their certificates attempt to create a jurisdiction which was not intended.

The High Courts should, therefore, exercise their discretion sparingly and with care. The 0 certificate should not be granted to afford another hearing on facts unless there is some error of a fundamental character such as occurred in Nar Singh's(') case.

In Nar Slngh's case(') 24 persons were tried under ss. 302/ 149, 307 /149 and 148, Indian Penal Code and eight were convicted by the Court of Session. On appeal to the High Court five E more were acquitted and that left Nar Singh, Roshan Singh and one Nanhu Singh.

Their convictions were upheld by the High Court and their sentences were maintained.

What had happened in the case of Nanhu Singh may now be stated from the judgment of this Court:

"By a curious misreading of the evidence this Nanhu Singh was mixed up with Bechan Singh.

What the High Court really meant to do was to convict Bechan Singh and acquit Nanhu Singh.

Instead of that they acquitted Bechan Singh and convicted Nanhu

Singh.

As s1>on as the learned High Court Judges G realised their mistake they communicated with the State Government and an order was thereupon passed by that Government remitting the sentence mistakenly passed on Nanhu and directing that he be released."

All the accused applied for a certificate and in view of what had H happened and as the conviction of Nanhu Singh on a murder

(I) [196S] S.C.R. 238.

A charge was still subsisting a common certificate was granted to all of them.

The High Court thought that the word "case" in Art. 134(l)(c) meant the case as a whole.

Nanhu Singh did not appeal and the appeal was filed by Nar Singh and Rosban Singh on the common certificate.

This Court pointed out that the High Court was wrong in thinking that the word "case" in B the sub-clause meant a case as a whole and the certificate in relation to accused other than Nanbu Singh was bad.

The certificate to Nanbu Singh was said to be proper.

The Divisional Bench then considered the case under Art. 13 6 (l ) for special leave but found it unfit.

C In Sunder Singh v. The State of U.P. (1) it was laid down that unless a substantial question of law or principle was involved the case must not be certified as fit even though the question of fact may be difficult.

Khushal Rao's(2 ) case again furnishes an example of an extraordinary situation. The High Court had based a conviction for murder on dying declarations which 'it D COJll>idered to be true but which required to be corroborated before they could be acted upon in view of the observations of this Court in Ramnath Madho Prasad v. State of Madhya Pradesh(")-". . . . . it is the settled law that it is not safe to convict an accused person merely on the evidence furnished by a dying declaration without further corroboration".

E Tlte Court fouqd corroboration in the fact that Khushalrao was absconding for a long time and was arrested from a room which had only one exit and that was locked on the outside.

When the accused applied for certificate it was pointed out that there was some evidence which was not brought to F the notice of the High Court establishing that the accused was evading arrest in another case and the circumstance that he was hiding then became dubious.

The High Court felt constrained to give the certificate because under the ruling of this Court the conviction was assailable.

This Court pointed out that the certificate was bad because it was not granted by G the High Court on any "difficult question of law or procedure which it thought required to be settled by this Court but on a question which is essentially one of fact, namely, whether there was sufficient evidence of the guilt of the accused".

The certificate was perhaps of the type represented by the certificate to Nanhu Singh which was held proper.

The matter was H then considered in an elaborate judgment from the point of view

(I) A. I. R. (1956] S.C. 411.

(2) (1958] S. C. R. 552.

(3) A. I. R. (19531 S.C. 42'J.

7811 SUPREME COUllT REPORTS [1965] 2 S.C.ll.

of Art. 136(1) and the view about dying declaration contained A in the earlier case was modified.

The evidence was examined afresh and the judgment of the High Court was affirmed.

These cases illustrate different angles of the problem. There is no doubt whatever that sub-clause ( c) does not confer an unlimited jurisdiction on the High Courts.

The power gives a B discretion but discretion must always be .eJ:ercised on some judicial principles.

A similar clause in Art. 133, which alloW& appeals in civil cases, has been consistently interpreted as including only those cases which involve a question of general public importance. That test need not necessarily be applied to a criminal case but it is clear that mere questions of fact should c not be referred for decision. The Constitution does not contemplate a criminal jurisdiction for this Court except in those two cases covered by els. (a) and (b) which provide for appeals as of right.

The High Court before it certifies the case must be satisfied that it involves some substantial question of law or principle.

In a criminal appeal the High Court can consider the case on law and fact and if the High Court entertains doubt about 'the guilt of the accused or the sufficiency of the evidence it can always give the benefit to the accused there and then.

It is not necesary that the High Court should first convict him and then grant him a certificate so that this Court, if it thought fit, reverse the decision. It is thus obvious that only a case involving sometliing more than mere appreciation of evidence is contemplated by the Constitution for the grant of a certificate.

What that may be will depend on the circumstances of the case but the High Court should be slow to certify cases.

The -High Cost should not overlook that there is a further remedy by way of special leave which may be invoked in cases where the certificate F is refused.

In this case the two learned Judges who first heard the apPcal differed on appreciation of evidence.

The Criminal Procedure Code contemplates the resolution of such a difference by the opinion of a third Judge.

We have already drawn attention to G the provisions of s. 429, Criminal Procedure Code relating to the hearing by the third Judge. It would appear to us that after the decision of the third Judge accepting the evidence against the appellants no question of fact survived. The learned Judge who heard the appeal on difference was also within his right in statin&

that the doubts which Gyanendra Kumar J. felt about the genuine- H ness of the First Information Report etc. did not affect him aad that he was in agreement with what Mathur J. had said on that part

A of the case.

In our opinion, the certificate did not comply with the requirements of Art. 134(1 )( c) as explained by us here. We have considered this case from the point of view of Art. 136(1) but we do not find it fit for the grant of special leave.

The evidence in the case was . rightly appraised by Mathur J. and the doubts which Gyanendra Kumar J. entertained were not justified.

B We do not, therefore, grant special leave.

It was contended that as long time has passed the sentence of death should be substituted by imprisonment for life and reliance was placed upon Kalawatl and Another v. The State of Himachal Pradesh(') where such action was taken.

In our judgment, each C case must be decided on its own facts and a sentence of imprisonment for life can only be substituted if the facts justify that the extreme penalty of the law should not be imposed.

We do not consider this to be such a case ..

It was next contended on the authority of Pandurang, Tukia

0 and Bhillia v. The State Hyderabad(') that as the two learned Judges have differed, the extreme penalty of the law should not be imposed.

In the cited case the Judges had differed on the ques tion of sentence itself and the third Judge before whom the matter was placed was in favour of the death penalty.

Bose J, in reducing the sentence to imprisonment for life, observed : "But E when appellate Judges, who agree on the question of guilt differ

on that of sentence, it is usual not to impose the death penalty unless there are compelling reasons". This cannot be raised to the pedestal of a rule for that would leave the sentence to the detennination of one Judge to the exclusion of the other. In the present case both the Judges appear to have been in favour of the F death sentence because although Gyanendra Kumar J. was in favour of acquittal he did not object to the confinnation of the death sentence when Takru J. had given his opinion. The offence here Wa! brutal and normally the death penalty should follow.

We, therefore, decline to reduce the sentence passed. The appeal fails and is dismissed.

G Appeal dismissed.

(I [19S3f S.C.ll. S'46.

(2) [19SS) 1 S.C.R. 1083.

BABU AND 3 OTHERS

STATE OF UTIAR PRADESH

January 19, 1965

K. N. WANCHOO

M. HIDAYATULLAH, J.

C. SHAH,

J.

R. MUDHOLKAR

S. M. SIKRI JJ.

Code of Criminal Procedure

s. 429

Constitution of India

Art. 134(1)

s. 312

s. 34

Indian Penal Code

Supreme Court

Section 429

Allahabad High Court

Nur-ud-din Ahmad

J. P. Gayal

P. Rana

Hidayatullah

High Court of Allahabad

s. 302

s. 34

Indian Penal Code

Babu Singh

Aram Singh

Gajram Singh

Ram Singh

Babu Singh

Behjoi

October 11, 1961

Babu Singh pradhan

Amrik Singh

Alpur

Sangram Singh

Behjoi Police Station

Man Sukh

Ved Ram

Jia Lal

Umrao

Sessions Judge, Moradabad

s. 302

Indian Penal Code

Babu D Singh

D. S. Mathur

Gyanendra Kumar

Mathur

Gvaoendra Kumar

Sanrrram Singh

Amrik Singh

Sangram

Sangram A Singh

V ed Ram

Ved Ram

Man Sukh

Jia Lal

Takru

Broome

Art. 134

s. 429

Criminal Procedure Code

[1955] 1 S.C.R. 238

Art. 134

Article 134

India

article 145

Art. 145

s. 411

Indian Penal Code

J.P. Mitter

Sisir Kumar Sen

Calcutta High Court

Lahiri

Haripada Dey

Bhagwati

Imam

Govinda Menon

article 134(1)

article 134(1)

Art. 134

Nar Singh

Nar Slngh

ss. 302

Indian Penal Code

Roshan Singh

Nanhu Singh

Bechan Singh

Nanhu

Singh

Nanhu

Art. 134(l)(c)

Rosban Singh

Nanbu Singh

Art. 13

Khushal Rao's(2

Khushalrao

Art. 136(1)

Art. 133

s. 429

Criminal Procedure Code

Art. 134(1 )( c)

Art. 136(1)

Pandurang

Tukia

Bose