R.S. Bindra, J.C.
1. This is an application by Md. Hasamad Mia, condemned to death, under Sub-clause (c) of Clause (1) of Article 134 of the Constitution for a certificate that the present case is a fit one for appeal to the Supreme Court. In the application as originally presented through the Jail only questions of fact bearing on the appreciation of evidence led in the case were relied upon in support of the prayer for the certificate. However, after this Court had appointed Shri A. Nilamani Singh, Advocate, as amicus curiae, to help the Court in deciding the application that Advocate presented a new set of grounds in justification of that prayer. Since it was stated at the bar that the original application had not been prepared by the prisoner with competent legal aid, I have decided to take into consideration the supplementary grounds while adjudging the merits of the application for certificate. In the supplementary grounds a question of law raised is that the learned Sessions Judge had not taken the statements made by the prosecution witnesses before the Committing Magistrate, and which statements are in contradiction to their averments made at the trial, as constituting substantive piece of evidence.
2. Relying on the principles enunciated in State of Bihar v. Ram Naresh Pandey : 1957CriLJ567 ; Jumman v. State of Punjab : 1957CriLJ586 ; Nand Lal Misra v. Kanhaiya Lal Misra : 1960CriLJ1246 and Alembic Chemical Works Co.. Ltd. v. Workmen : (1961)ILLJ328SC , Shri Nilarnani Singh strenuously canvassed for the applicant that it is open to an aggrieved party to pray for certificate if he has a point of law to urge before the Supreme Court even though that point had not been agitated before the High Court when the appeal was argued. Undoubtedly, the Supreme Court held in the cases cited that a pure point of law can be permitted to be argued before it even if it had not been urged before the High Court. However, that view was taken and subsequently reiterated by the Supreme Court only in respect of appeals instituted on special leave granted under Article 136(1) of the Constitution. But I think the analogy of Article 136(1) cannot be legitimately availed of for interpreting Sub-clause (c) of Article 134(1).
Clause (1) of Article 136 enacts that notwithstanding anything contained in Chapter IV, Part V, of the Constitution, the Supreme Court may. in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any Court or tribunal in the territory of India. Sub-clause (c) of Article 134(1), on the other hand, provides that 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 'certifies that the case is a fit one for appeal to the Supreme Court.' Obviously, the Supreme Court is given a completely free hand in granting special leave to appeal under Article 136 of the Constitution, while the High Court can issue the certificate under Clause (c) of Article 134(1) if 'the case is a fit one for appeal to the Supreme Court.' Moreover, the exact scope of the two constitutional provisions has been almost precisely defined by the Supreme Court in a large number of judicial pronouncements made by it, and this Court is bound in terms of Article 141 of the Constitution by the interpretation placed by the Supreme Court on those provisions.
As early as in October 1954, the Supreme Court held in the case of Dhakeswari Cotton Mills Ltd. v. Commr. of Income-tax West Bengal AIR 1955 SC 65. that it is not possible to define with any precision the limitations on the exercise of the discretionary jurisdiction vested in the -Supreme Court by the constitutional provision made in Article 136, that the limitations, whatever they be, are implicit in the nature and character of the power itself, that it being an exceptional and overriding power, naturally it has to be exercised sparingly and with caution and only in special and extraordinary situations, and that beyond that it is not possible to fetter the exercise of this power by any formula or rule. The Supreme Court observed further that all that can be said is that the Constitution having trusted the wisdom and good sense of the Judges of the Supreme Court in this matter, that itself is a sufficient safeguard arid guarantee that the power will only be used to advance the cause of justice, and that its exercise will be governed by well-established principles which govern the exercise of overriding constitutional powers.
Another pertinent proposition laid in that case was that it is 'plain that when the Court reaches the conclusion that a person has been dealt with arbitrarily or that a Court or Tribunal has not given a fair deal to a litigant, then no technical hurdles of any kind like the finality of finding of facts or otherwise can stand in the way of the exercise of this special power because the whole intent and purpose of the article is that it is the duty of the Supreme Court to see that injustice is not perpetuated or perpetrated by decisions of Courts and tribunals because certain laws have made the decisions of those Courts or tribunals final and conclusive.'
3. It follows from these observations that the powers given by Article 136 are in the nature of special or residuary powers which are exercisable outside the purview of the ordinary law relating to appeals, and in cases where needs of justice demand interference by the Supreme Court of the land. The Article is worded in the widest possible terms and it apparently vests in the Supreme Court a plenary jurisdiction in the matter of entertaining and hearing appeals, by grant of special leave, against any kind of judgment or order made by Court or tribunal in any cause or matter and the powers could be exercised in spite of the specific provisions for appeal contained in the Constitution or other laws. Tersely put, the Constitution does not for the best of reasons choose to fetter or circumscribe the powers exercisable under Article 136(1) in any way. That there is real and palpable difference in the scope of Article 136(1) and Sub-clause (c) of Article 134(1) was made clear by the Supreme Court in the case of Babu v. State of Uttar Pradesh : 1965CriLJ539 , where it was held that under Article 134(1)(c) the Supreme Court has not been made an ordinary Court of Criminal Appeal and the High Courts should not by the certificates attempt to create a jurisdiction which was not intended, that the High Courts should, therefore, exercise their discretion sparingly and with care, that the certificate should not be granted to afford another hearing on facts unless there is some error of a fundamental character, and that the High Court 'should not overlook that there is a further remedy by way of special leave which may be invoked in cases where the certificate is refused.'
These observations of the Supreme Court leave no room for doubt on the point that the circumstances which should weigh with the High Court in issuing the certificate under Article 134(1)(c) are fundamentally different from those which may influence the Supreme Court in granting special leave to appeal under Article 136(1) in exercise of its unfettered authority to exercise judicial superintendence over the Courts and tribunals in the realm. It was held in the case of Bharat Bank Ltd. v. Employees of Bharat Bank Ltd. AIR 195(sic) SC 188, that the opening non obstante clause of Article 136 emphasised the fact that the power there conferred overrode the limitations contained in the previous Articles on the Court's power to entertain appeals. As the word 'final' is not used in Article 136(1) to qualify the words 'Judgment, Orders, etc.', the Supreme Court has power in appropriate cases to grant special leave even in respect of interlocutory orders, which obviously cannot be done by the High Court under Article 134(1)(c).
Consequently, I have no difficulty in repelling the contention of Shri Nilamani Singh that since the Supreme Court can permit a pure question of law to be argued while hearing an appeal instituted on special leave granted under Article 136(1), the High Court is bound to grant a certificate under Article 134(1)(c) once a question of law is said to arise for determination.
4. This takes me to determine what principles should be kept in view while deciding a prayer made for a certificate under Article 134(1). The Sub-clause (c) is worded : 'If the High Court certifies that the case is a fit one for appeal to the Supreme Court.' Apparently, the matter of issuing certificate is within the discretion of the High Court. It was, however, held in the case of Baladin v. State of Uttar Pradesh : 1956CriLJ345 . that the word 'certifies' is a strong word and that it indicates that the High Court must bring its mind to bear on the question and, as in all cases of judicial orders and certificates, the reasons for the order must be apparent on the face of the order itself. The Supreme Court, it was emphasised, must be in a position to know, first, that the High Court has applied its mind to the matter and not acted mechanically, and. secondly, exactly what the High Court's difficulty is and exactly what question of outstanding difficulty or importance the High Court feels the Supreme Court ought to settle.
Another relevant observation made in the same case was that a certificate cannot be granted under Clause (c) if the High Court is in doubt about the facts and that if there is doubt in the minds of the Judges about the facts, their duty is to acquit. The Judges cannot convict, the Supreme Court pointed out, and then issue a certificate because they cannot make up then minds about the facts. It is abundantly clear from these observations of the Supreme Court that the grant of a certificate under Clause (c) is not a matter of course and that the power has to be exercised after considering what difficult questions of law or principle are involved in the case which require further consideration at the hands of the Supreme Court. In the case of : 1965CriLJ539 , the Supreme Court held that the power which is granted to the High Court is no doubt discretionary but in view of the word 'certifies' it is clear that such power must be exercised with great circumspection, sparingly, and only in a case which is really fit for appeal.
It was observed further that the Constitution does not contemplate a criminal jurisdiction for the Supreme Court except in the two cases covered by Sub-clauses (a) and (b) of Article 134(1) which provide for appeals as of right and that consequently the High Court before it certifies the case must be satisfied that it involves some substantial question of law or principle. It has been pointed out more than once by the Supreme Court that it is not an ordinary Court of Criminal Appeal and that the High Court should not by issuing certificate attempt to create a jurisdiction which was not intended. : 1956CriLJ801 , Sunder Singh v. State of Uttar Pradesh, is an authority for the proposition that ordinarily in a case which does not involve a substantial question of law or principle in an affirming judgment the High Court would not be justified in granting a certificate under Sub-clause (c) of Article 134(1) of the Constitution. Therefore, the conclusion that follows is that this Court would be justified in issuing the certificate only if some 'substantial question of law or principle' is involved for consideration on the part of the Supreme Court.
5. I have mentioned above that in the original application for certificate only questions relating to the appreciation of evidence were raised. However, it is settled beyond dispute that ordinarily the Supreme Court will not convert itself into a third Court of fact in criminal cases. Hence, I do not see any valid justification for the prayer to issue a certificate for. reappraisal of the facts on the part of the Supreme Court with the object of determining whether the charge of murder had been clearly brought home to the applicant on the basis of the material on record. A perusal of this Court's judgment dated 6-2-1970 would/bring out that not much of argument was raised on the question of the guilt of the accused. The only point seriously debated in the Court was whether the capital sentence was justified under the circumstances proved in the case. In an application for certificate under Sub-clause (c) the High Court is solely concerned with the question whether on the judgment given by it any question of law or principle arises requiring an authoritative interpretation by the Supreme Court. Since the question of conviction was not challenged in a serious manner when the present case was argued in this Court, I cannot persuade myself to grant the certificate on the footing that, there was not enough of material to justify the verdict of guilty.
6. The question of law raised in the supplementary grounds was not pressed when the appeal was argued, nor it had even been mentioned in the grounds of appeal in the manner it is now sought to be raised. The only relevant ground stated in the memorandum of appeal was that the trial Court 'gave undue credence to the witnesses though they had given contradictory and inconsistent statements before the Police, Committing Magistrate and the Court of Session.' The point now emphasised is that 'the evidence given under Chapter VIII in the Committing Magistrate's Court has not been treated as substantive evidence to contradict and discredit the prosecution witnesses in the Sessions Court by reason of the non-compliance with Section 288, Criminal P.C.' The two points, one raised in the memorandum of appeal and the other set out in the supplementary grounds, are of completely different nature. Therefore, the latter point can properly be described as a point taken for the first time in the application for certificate.
However, it is the settled practice of the Supreme Court that normally it will not allow a new point to be raised before it for the first time. Reference in this connection is invited to the case of Narayandas v. State of West Bengal : 1959CriLJ1368 ; Sudhansusekhar v. State of Orissa : 41ITR743(SC) and Bhagwati Saran v. State of U.P. : 3SCR563 . The High Court of Bombay held in the case of Jairam v. State of Bombay : AIR1954Bom206 , that in an application for leave to appeal to Supreme Court, a new point the decision of which would depend upon the questions of fact which were not placed before the High Court whose order is sought to be appealed, cannot be allowed to be raised for the first time. Therefore, the legal point mentioned in the .supplementary grounds for the first time cannot be raised before the Supreme Court for the first time. Nor do I think that that point is of any substantial importance. The verdict of guilty having not been seriously challenged in this Court, it may be presumed that the point now sought to be raised has been adopted only to strengthen the case for a certificate. However, no Court can permit itself to be dodged in that manner.
7. The last point which requires determination is whether the certificate can be granted on the basis that the proper sentence to award in the case was one of imprisonment for life and not the capital penalty. In the supplementary grounds it is admitted that 'in principle the question of awarding sentence...is a matter of discretion of the Trial and Confirming Courts and there are no hard and fast rules for the exercise of such discretion ...' Apart from that admission we have the authoritative pronouncement of the Supreme Court in the case of State of Maharashtra v. Mayer Hans George : 1SCR123 , that 'It is the settled rule of the Supreme Court that it would not interfere with the sentence passed by the Courts below unless there is an illegality in it or the same involves any question of principle.' Consequently, I am reluctant to grant certificate only for the reason that the Supreme Court may assess whether the penalty of death or the alternative sentence of life imprisonment was the proper sentence to pass in -the present case.
8. No other point was argued in support of the prayer for certificate.
9. As a result, the application fails and is dismissed.