R.S. Bindra, J.C.
1. In a long drawn out petition under Article 134(1)(c) of the Constitution of India as many as 28 grounds are set out to support the prayer for grant of a certificate of fitness for appeal to the Supreme Court. In an overwhelming majority of those grounds it is urged that this Court had not properly appreciated the evidence on record in its judgment dated 27-4-1970. In the rest of the grounds it is stated that the case raises some complex questions of law requiring authoritative pronouncement bv the Supreme Court and that grave errors in the matter of procedure had been committed during the course of trial. However, neither the nature of the questions of law requiring authoritative pronouncement by the Supreme Court, nor the nature of procedural irregularities committed in the course of trial, is specified. Anyway, I need not labour on those points inasmuch as during the course of arguments Shri Nila-mani Singh, representing the petitioners, did not press either of them. He confined himself solely to the questions of fact and went to the extent of contending that the judgment of this Court was perverse for the reasons that the conclusions of fact reached were not justified on the basis of the data available on the record and that some documents produced by the defence had not been taken into consideration.
2. Shri N. Ibotombi Singh, the learned Government Advocate, urged that since the only points raised by Shri Nilamani Singh relate to appreciation of evidence this Court should decline to certify the case as fit one for appeal to the Supreme Court. He cited : 1965CriLJ539 , Babu v. State of Uttar Pradesh, in support of that contention. In this case the Supreme Court exhaustively examined the previous judgments of that Court bearing on the exact scope of Article 134(1) of the Constitution and happened to observe that the power given to the High Court by Clause (c) of Article 133(1) is undoubtedly discretionary but in view of the word 'certifies' used therein it is clear that such power must be exercised with great circumspection and only in a case which is really fit for appeal. Without attempting to lay down a formula prescribing the precise limits of such discretion, the Supreme Court observed that it can be safely stated that under Article 134(1)(c) that Court has not been made an ordinarv Court of Criminal Appeal and that the High Courts should not by the certificates attempt to create a jurisdiction which was not intended. It was held further that the High Courts should exercise their discretion sparingly and with care and that the certificate should not be granted to afford another hearing on facts unless there is some error of a fundamental character such as occurred in the case of Nar Singh. This later case is reported in A.I.R. 1954 SC 457. What happened in that case was that by misreading of the evidence the High Court happened to mix up the convict Nanhu Singh with another accused Bechan Singh, and though what the High Court really meant to do was to convict Bechan Singh and acquit Nanhu Singh it actually acquitted the former and convicted the latter. Shri Nilamani Singh was unable to urge that the instant case falls in the category of the case reported in A.I.R. 1954 SC 457.
3. In para 14 of its judgment in the case of Babu A.I.R. 1965 SC 1467 (supra) the Supreme Court observed that there is no doubt whatever that Sub-clause (c) of Article 134(1) does not confer an unlimited jurisdiction on the High Courts and that the discretion given to the High Courts must always be exercised on some judicial principles. The Supreme Court stated further that though the interpretation placed on a similar clause in Article 133. namely, that it refers to only those cases which involve a question of general public importance, need not necessarily be applied to a criminal case but it is clear that mere questions of fact should not be referred to the Supreme Court for decision. It was pointed out that the Constitution does not contemplate a criminal jurisdiction for the Supreme Court except in the two cases covered by Clause (a) and (b) of Article 134(1) and that as such the High Court before it certifies the case must be satisfied that it involved some substantial question of law or principle. Towards the close of the para it was re-emphasised that only a case involving something more than mere appreciation of evidence is contemplated by the Constitution for the grant of a certificate and that what that may be will depend on the circumstances of the case but the High Court should be slow to certify cases. The High Court should not overlook, the Supreme Court pointed out while concluding the discussion, that there is a further remedy by way of special leave (under Article 136) which may be invoked in cases where the certificate is refused.
4. The main point in controversy between the prosecution and the defence at the time of hearing of appeals and connected cases in this Court was whether the accused party had constituted themselves into an unlawful assembly, as contended by the prosecution, or whether they had used a gun and other weapons in exercise of their private defence of property or persons as canvassed on behalf of the convits. In para 35 of the judgment I set down, while summing up my conclusions that the mob of 40 to 50 Muslims who rushed along the bund from the side of village Keirao Makting constituted an unlawful assembly that they indulged in rioting and that some of them were armed with deadly weapons, that it was Seraj-ud-din who shot dead Ibochouba Singh with a single barrel gun. that it was Aiii-ur-rahman who opened an assault with a sharp edged weapon on Nene Singh, that Ajij-ur-rahaman pursued Nene Singh when the latter fled the place and on overtaking him administered him more injuries, may be along with some others, as a result of which he died at the spot, that some members of that mob pelted missiles which caused injuries to P.Ws. Ibopishak Singh and Chaoba Singh, and that Achou Mia was also a member ol the unlawful assembly though it is not proved that he was armed with any weapon. If the petitioners now contend, in face of these definite conclusions reached by the Court, that they were not culprits and that they had not used the weapons against Ibochouba Singh and Nene Singh, the two deceased of the case ,and P.Ws. Ibopishak Singh and Chaoba Singh, who were injured, as members of an unlawful assembly but in exercise of private defence of persons and property, then they raise only a question relating to appreciation of evidence. Clause (c) of Article 134(1), as interpreted by the Supreme Court, does not envisage a certificate for that purpose. Consequently, the petition fails and is rejected.