Sen Gupta, C.J.
1. The petitioner was convicted under Section 302, I.P.C. by the Sessions Judge of Agartala, agreeing with the opinion of the three assessors who aided him at the trial and sentenced to transportation for life. He preferred an appeal against the decision. The appeal against his conviction was dismissed and simultaneously a notice was issued upon him under Section 439, Cr.P.C. to show cause why his sentence should not be enhanced to one of death. He showed cause accordingly but the sentence was. enhanced.
2. The petitioner has thereupon applied to this Court for a certificate under Article 134(1)(c) of the Constitution of India that the case is a fit one for appeal to the Supreme Court.
3. The grounds put forward in support of the petition are as follows:
(i) That this Court had no jurisdiction to enhance the sentence after having dismissed the appeal.
(ii) That this Court had no jurisdiction at the revision to discuss matters already discussed during the appeal,
(iii) That the sentence passed by the Sessions Judge not being illegal, the enhancement thereof was illegal and ultra vires.
(iv) That the trial before the Sessions Court was vitiated as the witnesses cited by the petitioner before the Committing Magistrate were not summoned.
(v) That the petitioner was prejudiced-
(a) as the post-mortem examination of the deceased had been held in the absence of the Divisional, Judicial Officer who was directed by the Sub-Divisional Officer to be present at such examination,
(b) as the blood-stained beddings were not produced before the Court, and
(c) as the investigating officer did not show the 'machang' in the sketch map.
4. The points will be dealt with seriatim: Point (1): The judgment of this Court dismissing the appeal of the petitioner ended with these words.
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The conviction of the appellant by the learned Sessions Judge was therefore justified.
The appeal therefore must stand dismissed.
It appears that the learned Sessions Judge has dealt with the appellant too leniently in inflicting the punishment of transportation for life, in a case of such brutal and inhuman murder of an old man in his sleep. It is not clear what extenuating circumstances led him to do so; all that is available from his judgment is that the lesser sentence was justified by '...of the appellant....' There is however prima facie no material for showing that these would amount to any extenuating circumstance. It is therefore necessary to consider whether the punishment of the appellant should be enhanced to one of death5 by revision under Section 439, Cr.P.C. This will be done separately.
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5. This meant that the conviction of the petitioner was upheld but the order about sentence was left open for decision by exercise of the revisional powers of this Court, after issue of notice upon the convict under Section 439, Cr.P.C. giving the convict an opportunity for showing cause why the sentence passed upon him should not be enhanced to one of death. This Court cannot in the circumstances be said to have acted without jurisdiction in enhancing the sentence. This view of the case appears to find support from the Ruling of the Privy Council in the case of - Chunbidya v. Emperor AIR 1935 PC 35.
6. This revision cannot also be said to be a revision of its own order by this Court and Section 369, Cr.P.C. cited by the learned Advocate for the petitioner has therefore no application to this case.
7. Point, (ii): Section 439(6) gives the accused an opportunity for showing cause against his conviction on a notice to show cause why his sentence should not be enhanced. When such -cause is shown, the Court is expected to consider the points raised even if these had been raised before and, therefore, there is no illegality or irregularity as suggested. The learned Advocate for the convict referred to the decision by the Rangoon High Court in the case of - The King v. Nga Ba Saing AIR 1939 Rang 392. Even assuming this decision to be correct the petitioner cannot be said to have been prejudiced in any way when this Court discussed the points raised by himself against his conviction, as it was more to his advantage than what is warranted by the decision in the Rangoon High Court.
8. Point (iii): The order in the revision case shows why the sentence was enhanced. It was held by the learned Sessions Judge that a sentence of death was the only appropriate sentence. Such an assertion was clearly justified by the facts of the case. When no extenuating circumstances worth the name, could be put forward after such an observation, the lesser sentence passed cannot be said to be according to law and was therefore open to revision. The enhancement of sentence was therefore in order.
9. Point (v): This point has already been discussed in the judgment of Revision Case No. 14 of 1951.
10. Under Section 216, Cr.P.C. the Committing Magistrate is bound to summon the witnesses named by the accused.
11. In reply to the question of the Sessions Court under Section 289, Cr.P.C. however the accused did not want to adduce evidence. Nor did his pleader state that he meant to adduce evidence. If he had wanted to do so, he might have got his witnesses summoned by the Sessions Court. In the circumstances the accused cannot be said to have been prejudiced by his witnesses not being summoned by the Committing Magistrate.
12. Point (v)(a): The absence of any Magistrate at the post-mortem examination did not by itself vitiate such examination or make the medical evidence about post-mortem examination inadmissible. The accused had full opportunities of challenging his evidence and was not, therefore, prejudiced.
(b) Non-production of blood-stained materials has been discussed in the appellate judgment and no further comment is necessary.
(c) The investigating officer was before the Court and the evidence of the material witnesses showed the position of the 'machang' although this was not shown in the sketch map. The presence of the 'machang' in the sketch map might have simplified the evidence but as it is there was plenty of evidence about the position of the 'machang' and its absence in the map was not, therefore, a very material detect which might have led to a miscarriage of justice.
13. Now, the principle on which a certificate is expected to be granted is practically the same on which the Supreme Court would normally grant leave of appeal.
14. The opinion of their Lordships of the Supreme Court has been expressed very clearly in the case 'of - Malak Khan v. Emperor AIR 1946 P.C. 16.
The Privy Council will not review, or interfere with the course of criminal proceedings, unless it is shown that, by disregard of the forms of legal process or otherwise, substantial and grave injustice has been done. Where neither of these two things are present the Privy Council will not interfere on the ground that evidence was wrongly evaluated or was not sufficient to justify the conclusion reached. It requires more than an allegation or even proof that a Court might take a different view of the compelling force of the evidence given.
15. In the Supreme Court case of - Pritam Singh v. The State : 1950CriLJ1270 , their Lordship held that-
though the Supreme Court was not bound to follow the decisions of the Privy Council too rigidly, since the reasons, constitutional and administrative, which sometimes weighed with the Privy Council need not weigh with the Supreme Court, yet some of those principles are useful as furnishing in many case a sound basis for invoking the discretion of the Court in granting special leave.
and it was further held that-
Generally speaking Supreme Court will not grant special leave to appeal in criminal cases 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 tin decision appealed against.
and also that-
It would be opposed to all principles and precedents if the Supreme Court were to constitute itself into a third Court of fact and after re-weighing the evidence, come to conclusion different from that arrived at by the trial Judge and the High Court.
16. Following these principles and others hithertofore accepted in the Privy Council and the Supreme Court I find no sufficient material in support of the prayer for granting a certificate that this was a fit case for appeal to the Supreme Court.
17. The petition is therefore rejected.