M.S Sheriff & Another v. M. Govindan & Another.

[Satyanarayana Rao, J.]

These two applications were filed under Arts. 132(1) and 134 (1) (c) of the Constitution of India for leave to appeal to the' Supreme Court against the orders of this court in Cr. M.P Nos. 1703 and 1705 of 1950 directing the prosecution of the present applicants under S. 193 I.P.C There were two applications Cr. M. Ps. Nos. 2461 and 2462 of 1949 filed under S. 491, Cr. P.C requesting this court to issue directions in the nature of habeas corpus for the release of the petitioners therein. The complaint by those petitioners Govindan and Damodaraswami was that they were kept in illegal custody in B. 2 and B. 1 police stations of Coimbatore by the Sub Inspectors of police of the respective stations and that they should be released. In those applications, the Sub Inspectors who are the present applicants for leave to appeal to the Supreme Court filed affidavits denying' the custody of those persons. There was an elaborate enquiry into the question whether or not Govindan and Damodaraswami were in the custody of the Sub Inspectors of Police and in our judgment dated 28th April 1950, we found, after detailed examination of the evidence adduced on both sides, that the allegations in the counter affidavits filed by the Sub Inspectors of Police were false and that Govindan and Damodaraswami were both in their custody on the material date. The petitions however were dismissed for other reasons. Govindan and Damodaraswami thereafter moved this court to direct the prosecution of the Sub Inspectors of Police for an offence under S. 193 I P.C Those petitions were heard by us after notice to the Sub Inspectors of Police to show cause why a prosecution should not be launched and by our order dated 9th March 1951, we directed the prosecution of the Sub Inspectors of Police under S. 193 I.P.C These applications for leave are against the order directing the prosecution of the Sub-Inspectors of Police. Though in the applications now filed Arts. 132 and 134 of the Constitution of India were relied on, the arguments before us were confined to Art. 134 (1) (c) of the Constitution of India and S. 476 B, Cr. P.C

Mr. Ethiraj, learned counsel for the applicants, raised a very novel and interesting question, the decision of which depends upon the proper construction of S. 476B, Cr. P.C and the arguments before us turned mostly on the construction of that section. The contention shortly stated is that under S. 476B, the applicants are entitled as a matter of right to appeal to the Supreme Court with out the leave of this court under Art. 134 (1) (c) of the Constitution. because this court is subordinate to the Supreme Court within the meaning of S. 195 (3) Cr. P.C That sub-section is as follows:—

“For the purposes of this section, a court shall be deemed to be subordinate to the court to which appeals ordinarily lie from the appealable decrees or sentences of such former court or in the case of a Civil Court from whose decrees no appeal ordinarily lies to the principal court having ordinary original Civil Jurisdiction within the local limits of whose jurisdiction such Civil Court is situate; provided that (a) where appeals lie to more than one Court, the Appellate court of inferior jurisdiction shall be the court to which such court shall be deemed to be subordinate; and (b) where appeals lie to a civil and also to a revenue court such court shall be deemed to be subordinate to the civil or revenue court according to the nature, of the case or proceeding in connection with which the offence is alleged to have been committed.”

The argument is that in view of Art. 134 of the Constitution the Supreme Court must be treated as a court to which appeals ordinarily lie from the appealable sentences of this court and therefore this court must be deemed to be subordinate to the Supreme Court. Under Art. 134 (1) of the Constitution an appeal lies 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.”

Before the Constitution came into force, the Privy Council was not a court of appeal in criminal matters against the decisions of the High Court and under the Government of India Act, 1935, if the case involved a substantial question of law, whether it was a Civil or a Criminal case, as to the interpretation of the Government of India Act, or any Order in Council made thereunder, an appeal lay to the Federal Court it the High Court certified to that effect. Appeals to the Privy Council in criminal matters were entertained only with the special leave of the Judicial Committee and that jurisdiction was exercised on the principles enunciatated in the well known Dillet's case [1887] 12 A.C 459. and the other decisions of the Judicial Committee following it. A restricted and a very limited right of appeal therefore was recognised under S. 205 of the Government of India Act. Under the present Constitution, Art. 132 takes the place of S. 205, Government of India Act, 1935; and it is made clear by that article that it applies to Civil and Criminal and even other proceedings. The requirements regarding the certificate by the High Court is retained. Art. 133 deals with the appellate jurisdiction of the Supreme Court in appeal from the High Court, in regard to civil matters. Art. 134 which relates to criminal matters, it will be observed, enlarges the right of appeal and extends it to three matters enumerated in sub-clause (1) of that article. Otherwise the decision of the High Court in a Criminal proceeding is final. The provision under Art. 134, creating a right of appeal, restricted and limited though it be, was enough, it was argued by learned counsel for the applicants, to constitute the Supreme Court, a court to which appeals ordinarily lie from the appealable sentences of the High Court so as to make this court a court subordinate to the Supreme Court in criminal matters. Can it be said that by the fact that in a limited class of cases an appeal lies to the Supreme Court, that court is thereby constituted a court to which appeals “ordinarily lie” from the decisions of this court in criminal matters? It must be observed that under the article, there is no right of appeal as a matter of course except in the two cases enumerated in clauses (a) and (b) of sub-clause (1).

What then is the meaning to be given to the expression “appeals ordinarily lie” occurring in sub-sec (3) of S. 195 Cr. P.C? The expression is used with reference to civil as well as criminal matters and in order to appreciate the import of that expression, it may be useful to bear in mind the scheme of appeals and the gradation of courts provided by the Civil and Criminal Procedure Codes. In civil matters the right of appeal against decrees passed by any court exercising original jurisdiction is conferred by s. 96 C.P.C and the forum to which the appeals lie is also indicated in the section as the court authorised to hear appeals from the decisions of such court. This authorisation is to be found in the Civil Courts Acts of the various States. In Madras, for example, under s. 13 of the Madras Civil Courts Act (III of 1873) regular or special appeals shall, when such appeals are allowed by law, he from the decrees and orders of a District Court to the High Court and from the decrees and orders of Subordinate Judges and District Munsifs to the District Court except when the value of the subject matter of the suit exceeds Rs. 5000. Power is reserved to invest the Subordinate Judges Courts also with appellate jurisdiction against the decisions of the District Munsifs so that we have the District Munsifs court, above it the Subordinate Judge's court and higher still, the District Court, and thereafter the High Court. Ss. 404, 407, 408, 409 and 410 etc. Cr. P.C provide for appeals from the sentences and orders of an inferior court to a superior court and the courts also are indicated. The gradation of the courts is complete. In matters in which an appeal is allowed by law, an appeal lies both under the Civil Procedure Code and the Criminal Procedure Code as a matter of right without any restriction such as a certificate of leave of the court from whose decisions an appeal is sought to be preferred or that of the appellate court. The expression, therefore in S. 195 (3) Cr. P.C “the court to which appeal ordinarily lies” must necessarily have reference to a higher court to which an unrestricted right of appeal against the decisions of an inferior court is provided. In Re Anant Rama chadar Lotlikar2 followed in Boddu Ramayya v. Chitturi Surayya [1915] 28 M.L.J 486 the expression “ordinarily lie” was construed as having reference to refer to a tribunal to which a majority of the appeals are presented, i.e, the court to which the appeals in the usual course will lie as a matter of right. If the superior court is not entitled to entertain appeals as of right from the inferior court but the right of appeal is limited to a particular class of cases and the right of appeal is hedged in by conditions, it is difficult to hold that by such limited jurisdiction, the relationship between the superior court and the inferior court, is one of subordination. Merely because of the restricted and limited right of appeal to the Supreme Court under Art. 134 (1) of the Constitution, it cannot be said that the Supreme Court is a court of criminal appeal against the decisions of this court in criminal matters. As observed by Fazl Ali J. in Pritam Singh v. The State [1950] M.W.N 605 Art. 134 constitutes the Supreme Court, a court of criminal appeal in a limited class of cases only and clearly implies that no appeal lies to it as a matter of course or right except in cases specified therein and at page 456 it was pointed out by the same learned Judge that the Supreme Court was not an ordinary Court of Criminal appeal (Italics are ours). To the same effect is the view of Gajendragadkar J. in King v. Emperor [1950] A.I.R Bom. 380 where also the learned Judge points out that the Supreme Court was not constituted a court of criminal appeal under Art. 134 notwithstanding, the limited jurisdiction conferred by that article on the Supreme Court to entertain appeals in certain matters.

Learned counsel for the applicants invited our attention to some decisions of this court and other courts as throwing light on the interpretation of sub sec. (3) of S. 195 Cr. P.C In Munisamy Mudaliar v. Rajarathnam Pillai [1922] M.W.N 594 which had to deal with old S. 195 (6) and (7) Cr. P.C it was held that a Division Bench of the appellate side of the High Court could entertain appeals from a decision of a single judge sitting on the Original Side of the High Court and that a Single Judge to that extent was subordinate to the Division Bench as appeals would ordinarily lie from a single judge on the Original Side to the Division Bench of the Appellate Side of the High Court. Coutts Trotter J. was careful enough to observe at page 935 that by this subordination it was not meant to hold that a single Judge was subordinate to a Division Bench in any other sense and for the purpose of any other section or any other Act. It was restricted only to matters falling under S. 195. Under clause 15 of the Letters Patent, an appeal ordinarily lies from a judgment of the single judge to the Division Bench. The decision therefore is correct, if we may say so with respect, in holding that appeals would ordinarily lie from a single judge to a Division Bench in those circumstances. In Kalyanji v. Ram Deen Lala [1925] I.L.R 48 Mad. 395. all that was decided was that an appeal against an order of a Judge of the Presidency Small Causes Court, Madras, directing prosecution under' S. 476 Cr. P.C for offences under Ss. 193 and 196 I.P.C lies to the appellate Side of the High Court and not to the Full Bench of the Small Causes Court under S. 38 of the Presidency Small Causes Court Act and that is for the simple reason that the right conferred by S. 38 of the Act to direct a new trial was not in the nature of an appeal. There is a decision of a single Judge of the Allahabad High Court in Amanul Huq v. Girdhar Gopal [1934] A.I.R All. 886. in which it was held that even if the decree was appealable to a limited extern, as when an appeal lies to a District Judge against the decision of a Collector, the case would come within the ambit of S. 195(3). The question was not examined on principle and there is no discussion of the point in the case and it is therefore difficult to accept the decision as laying down the law correctly. But the question seems to be covered by proviso (b) to S. 195(3)Cr. P.C which contemplates appeals against decrees partly to a civil court and partly to a revenue court. If appeals lie to a civil court and also to a Revenue Court it is provided that such courts shall be subordinate to the civil or revenue court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed. In the case cited above the appeals under the Agra Tenancy Act lay to the District Court as well as to the Collector. In certain matters, the appeals had to be filed before the Collector while, in others they had to be filed in the District Court. The decision therefore may be treated as covered by the proviso (b) to S. 195 (3) Cr. P.C That does not however support the contention of the applicants. Unless there is a clear indication in the Constitution to alter the law as it stood before and they constitute the Supreme Court a court of criminal jurisdiction to which appeals would oridinarily lie from decisions of the High Court, it should not be, in our opinion, presume that by the existence of a right of appeal in a limited class of cases, it is converted into a court of criminal appeal. The contention, therefore of Mr Ethiraj that his clients are entitled to an automatic right of appeal under S. 476-B, Cr. P.C, in our opinion cannot be accepted. There is another aspect of the matter which disentitles the applicants from claiming an automatic right of appeal under S. 476-B, Cr. P.C Assuming that the contention of the applicants is correct, in view of the language of Art. 372 of the Constitution, the right of appeal, if any, under S. 476-B, Cr. P.C must yield to the restricted right of appeal under Art. 134 as all the law in force in the territory of India immediately before the commencement of the Constitution are to continue to be in force but subject to the other provisions of the Constitution. The right of appeal therefore under Art. 134 overrides the right, if any, under S. 476-B Cr. P.C

The only other alternative contention is that leave should be granted under Art. 134(1)(c) of the Constitution and that we should certify the case to be a fit one for appeal to the Supreme Court. The expression that “the case is a fit one for appeal” occurs also in clause (c) of Art, 133 (1) and occurred also in S. 109 (c) C.P.C The meaning of the expression was considered by the Judicial Committee under S. 109 (c) C.P.C and also by the High Courts and the principle laid down in order to determine whether a case is a fit one for appeal to the superior court or not is that it should raise some question of law of public or private importance, irrespective of the money valuation and it is not even enough that it raises a question of law. The decision may be important because it governs numerous other cases or there may be other suits in which similar questions are raised and it is only in such exceptional circumstances that a certificate should issue that the case is a fit one for appeal. Under Art. 136, the Supreme Court has got very wide power of granting 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. It is not restricted to High Courts and the power of the Supreme Court to grant special leave is unlimited. The principles on which the Federal Court would exercise its jurisdiction in granting special leave have been elaborately considered by Mahajan J. in Kapildgo Singh v. The King [1950] M.W.N 327 and by Fazl Ali, J. in Pritam Singh v. The State. In the latter case it is stated by the learned Judge at page 459;

“Generally speaking this court will not grant special leave unless it is shown that exceptional and special circumstances exist, that substantial 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.”

The decision of Mahajan J. referred to above was also cited. Of course, the Supreme Court, as observed by Fazl Ali, J. is not bound to follow the principles laid down by the Judicial Committee too rigidly; but the principle on which the Supreme Court would act under Art. 136 is as stated above.

We have adverted to Art. 136 and its interpretation by the Supreme Court for the reason that in construing Art. 134 (1) (c), it will not be correct to assume that the principles governing the grant of a certificate under Art. 134 (1) (c) and the granting of special leave by the Supreme Court under Art. 136 are the same. In some of the decisions, if we may say so with respect, this distinction was overlooked. It is however, unnecessary to elaborate this question. Art. 134 (1) (c) came up for consideration by this court in Re Sakthi Velu10 and Re Mandalapu Paddaya11. In the latter case with reference to Art. 134(1) (c), it was observed that the decisions construing S. 109 C.P.C such as Banarsi Prasad v. Kashi Kishen Narain [1901] 28 I.A 11 and Radhakrishna Iyer v. Swaminatha Iyer [1921] M.W.N 118 would equally apply to Art. 134 (1) (c) and that a certificate of fitness should be granted only in special cases of great public or private importance and that the certificate should also clearly state the grounds on which it is based. There is a later decision in Narayana v. Kesappa [1951] M.L.J 296 where also the decisions interpreting S. 109 (c), C.P.C were applied to construe Art. 134(1) (c) and that the question involved must be a question of general or public importance. We do not think it is necessary to refer to the observations of the learned Judges with reference to the interpretation of Art. 136, as in our opinion Art. 134 (1) (c) must be construed independently of Art. 136.

On the facts of the present case, it is impossible to find any question of public or private importance and even a question of law. On a review of the evidence we came to the conclusion that the affidavits sworn to by the sub inspectors of police were false and we thought therefore that it was expedient in the interests of justice that they should be prosecuted under S. 193 I.P.C Learned Counsel for the applicants was not able to formulate any question of law which would justify the granting of a certificate of fitness under Art. 134 (1) (c). The applicants therefore not entitled to leave and the applications have to be dismissed.

Before closing it must be observed that in these petitions we gave notice to the petitioners in the habeas corpus applications as the Government has been supporting the case of the Sub Inspectors and they were practically the respondents in the habeas corpus petitions. In the interests of justice we thought that the petitioners should be heard in the matter so as to enable us to reach a correct conclusion on the questions raised in these applications.

We certify that this order involves a substantial question of law as to the interpretation of the Arts. 134 (1) and 372 of the Constitution and is therfore a fit case for appeal to the Supreme Court under Art. 132.

N.T.R