Chunchu Narayana And Others v. Karappati Kesappa

(Pronounced by Govinda Menon, J.)

The petitioner seeks permission to appeal to the Supreme Court against the judgment of this Court in Crl. R.C No. 566 of 1950 under Art. 134(1)(c) of the Constitution of India, which is in the following terms:

“An appeal shall lie to the Supreme Court from any judgment or final order or sentence in a criminal proceeding of a High Court in the territory of India, if the High Court certified that the case is a fit one for appeal to the Supreme Court.

The words of this Article are analogous to the provisions of S. 109(c) Civil Procedure Code, which says that an appeal shall lie to the Supreme Court from any decree or order if the case is certified as a fit one for appeal to the Supreme Court. Since Art. 134(c) has come into force only about a year go, our attention has been invited only to one or two cases dealing with the interpretation of Art. 134(1)(c), but various cases on the applicability or the interpretation of S. 109(c) C.P.C, have been brought to our notice and in the absence of any positive authority we should be guided by what the previous decisions have laid down regarding the criterion to be adopted in granting leave.

Our judgment in Crl. R.C No. 566 of 1950* is based on a construction of S. 145(4) Criminal Procedure Code, on which there had been sharp divergence of judicial opinion. In this Court three learned Judges, Wallace, Devadoss and Lakshmana Rao, JJ., have taken one view, whereas two others, namely, Jackson and Happell, JJ., have taken a contrary view. The view taken by the latter Judges has been shared by the Lucknow and Allahabad High Courts as well. In this state of conflicting authority we had to choose between two divergent opinions and we preferred to accept the principles of the decisions of Wallace, Devadoss and Lakshmana Rao, JJ., on the construction of this section. The question is, whether the proposition of law is of such an importance that leave should be granted? It has to be premised that the order made by a criminal Court under S. 145 Crl. P.C, is subject to the result of a civil suit and therefore, criminal Court's decision is only of a temporary nature.

In interpreting S. 109(c) C.P.C, in Ramanathan Chetti v. Audinatha Aiyangar (1), Venkatasubba Rao and Madhavan Nair, JJ., have laid down that the existence of a question of law of some difficulty is not a sufficient ground for certifying the case to be a fit one for appeal to the Privy Council, unless it is of general and public importance. The learned Judge, Madhavan Nair, J., discussed a large body of case law and came to that conclusion. Is there a question of law of some difficulty and sufficient importance in this case? Probably it might be stated that the question we have to decide is of some importance because of the construction of S. 145(4) Crl. P.C, but we do not feel that it is a matter of any great difficulty.

In interpreting Art. 136 of the Constitution, which lays down that the supreme Court can grant special leave in criminal cases, their Lordships of the Supreme Court had to consider when and under what conditions leave should be granted and they held that the only standard which can be laid down, in the circumstances, is that the Court should grant special leave to appeal only in those cases where special circumstances are shown to exist. Generally speaking the Supreme Court will not grant special leave unless it is shown that exceptional circumstances exist and that severe and grave injustice has been done and that the case in question presents features of sufficient gravity to warrant a review of the decision appealed against. In our opinion these principles are to be followed in deciding whether leave should be granted under Art. 134(1)(c) also.

The High Court of Orissa in Arjun Misra v. India Union , (Ray, C.J and Narasimham, J.) had also to consider the prerequisites for the grant of leave under Art. 134(1)(c) and it has been held that since the scope of an appeal to the Supreme Court against a final order or sentence in a criminal proceeding has not at all been widened, the Court will have to interfere with convictions by local tribunals within the same bounds of limitation and restraints laid down by the Privy Council and the fitness has to be judged by the standard that tribunal (Privy Council) laid down before it in granting special leave to appeal. The only change that the Constitution has introduced is to endow the state High Courts with powers to certify, or in other words, to grant leave to appeal. The learned Chief Justice discussed the dictum of Lord Watson in In re Abraham Mallory Dillet(2) as well as that of Lord Dunedin in Mohinder Singh v. Emperor (3). Reference was also made to the observations of the Judicial Committee in Muhammad Nawaz v. Emperor (4). No argument has been advanced before us to show that we should not follow the decision of the learned Judges. If that is so, the conditions necessary to be present for the High Court to grant leave are practically the same as the conditions which ought to exist for the Supreme Court to grant special leave, and if the Supreme Court is to be guided by what is laid down by the Privy Council in In re Abraham Mallory Dillett it seems to us that this case does not present features necessary for the granting of such a leave.

Recently a Bench of this Court, to which one of us was a party in In re Mandalapu Paddayya(5) had considered the scope of Art. 134 and laid down that as the Supreme Court of India will not interfere with the course of justice in criminal cases in the free fashion of a fully constituted Court of criminal appeal and it will interfere only in special cases of great public or private importance or if injustice of a serious and substantial character has occurred, the High Court cannot grant leave to appeal, unless those circumstances mentioned exist. In that decision a number of cases were cited and discussed and, therefore, it is unnecessary for us to discuss them again. We may also in this connection, refer to another decision in Pritam Singh v. The State (6).

It does not seem to us that the point decided in this criminal revision case is of such general and public importance or is likely to occur very often that we should grant leave to appeal to the Supreme Court. After all it is not everyday that a Magistrate, who is approached under S. 145 Crl. P.C, does not pass a preliminary order immediately on the receipt of the application, and what we have decided is that, as it is the duty of the Magistrate to pass a preliminary order without delay after the receipt of the application, the delay of the Court should not affect the rights of parties. We are of opinion that the point under consideration is not of such general or even public importance as to warrant granting of leave to appeal.

This petition is, therefore, dismissed.

N.R.R