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The State of Hyderabad Vs. Baquer Hussain - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1952CriLJ352
AppellantThe State of Hyderabad
RespondentBaquer Hussain
Excerpt:
.....of other high courts as well as of our own. the principles in connection with the grant of special leave to appeal to the supreme court in criminal cases laid down in 'pritamsingh's case reported in air (37) 1950 sc 169, are useful as furnishing a sound basis in the matter of granting a certificate of fitness under article 134(1)(c) of the constitution in the absence of any rules under article 145. according to these principles leave to appeal to supreme court will not ordinarily be granted 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 jurisdiction to certify a case as a fit one for..........and convicted under sections 134, 217, 263, 330/71 and 389/ 71, of the hyderabad penal code. the accused appealed to the high court and the high court acquitted him of all the charges. on behalf of the government this petition is filed for leave to appeal to supreme court. advocate-general argues that this is a fit case in which leave should be granted. in separate but concurrent judgments of the division bench it has been held that the accused cannot be convicted for abetment as there was no charge framed against the accused. the advocate-general contends that this is not according to law. there are several authorities in which it has been held that though the substantive offence is not proved yet if all the ingredients disclosed in the offence of abetment were substantiated the.....
Judgment:
ORDER

1. This is a petition for leave to appeal to the Supreme Court under Section 134(c) of the Constitution of India.

2. The facts leading to this petition are that one Baquer Hussain was charged and convicted under Sections 134, 217, 263, 330/71 and 389/ 71, of the Hyderabad Penal Code. The accused appealed to the High Court and the High Court acquitted him of all the charges. On behalf of the Government this petition is filed for leave to appeal to Supreme Court. Advocate-General argues that this is a fit case in which leave should be granted. In separate but concurrent judgments of the Division Bench it has been held that the accused cannot be convicted for abetment as there was no charge framed against the accused. The Advocate-General contends that this is not according to law. There are several authorities in which it has been held that though the substantive offence is not proved yet if all the Ingredients disclosed in the offence of abetment were substantiated the accused can be convicted of abetment even though there was no charge. In support of this argument he has relied upon Begu v. Emperor 88 Ind Cas 3 (PC); Jananada Charan v. Emperor AIR (16) 1929 Cal 807; Khuman v. Emperor AIR (18) 1931 Oudh 274, Kadira v. Emperor AIR (15) 1928 Cal 466; Ma Thaw v. Emperor 26 Ind Cas 149 (LB); In re, Padmanabha Payi 11 Cri L Jour 49 (Mad); Hira Sah v. Emperor AIR (34) 1947 Pat 350; Provincial Govt. v. Saidu AIR (34) 1947 Nag 113; Debi Prosad v. Emperor AIR (19) 1932 Cal 455. Samuel John v. Emperor AIR (22) 1935 All 935; Provincial Govt. v. Gomaji AIR (31) 1944 Nag 192, 16 Criminal Law Journal 680, Secondly, he argues that the High Court has erred In deciding that there was mis-joinder of charges; and thirdly, the principles enunciated by the Privy Council essential for granting leave are not applicable to this matter as the Privy Council was not a Court of appeal in criminal cases.

3. On behalf of the accused it is contended that the argument as regards the mis-joinder of charges and the question of convicting the accused for abetment without framing a charge are all questions depending upon facts which have not been proved and as such the petitioner is not entitled to any leave. He relies in his support on Taba Singh v. Emperor 48 Bom 515; Easwara-murthi Goundan v. Emperor, AIR (31) 1944 PC 54; and Otto George Gfeller v. The King AIR (30) 1943 PC 211.

4. As stated before this is an application under Article 134(c) of the Constitution. It provides that:

An appeal shall lit 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-

(c) certifies that the case is a fit one for appeal to the Supreme Court:

Provided that an appeal under Sub-clause (c) shall lie subject to such provisions as may be made in that behalf under Clause (1) of Article 145 and to such conditions as the High Court may establish or require.

The same rule applies also in Civil cases under Article 133, Clause (c). No provisions have been pointed out in this behalf under Clause (1) of Article 145 and in fact no rules have been framed under this clause in our High Court. So we have to rely upon the rulings of other High Courts as well as of our own.

5. The Division Bench of our High Court has laid down some rules for the guidance in such cases. In the case of Habib Mohd. v. Hyderabad State AIR (38) 1951 Hyd 71, it has been laid down that:

Article 134 constitutes the Supreme Court as a Court of criminal appeal but this right of appeal is restricted to a limited class of cases only and does not imply that an appeal would lie to Supreme Court as a matter of course or right but in cases specified therein. The principles in connection with the grant of special leave to appeal to the Supreme Court in criminal cases laid down in 'Pritamsingh's case reported in AIR (37) 1950 SC 169, are useful as furnishing a sound basis in the matter of granting a certificate of fitness under Article 134(1)(c) of the Constitution in the absence of any rules under Article 145. According to these principles leave to appeal to Supreme Court will not ordinarily be granted 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.

6. The same has been held in the case of Chowthmal v. Hiralal AIR (38) 1951 Assam 38. In the case of Paddaya, AIR (38) 1951 Mad 329, it was held that:

When a case is not a special case, nor is it one of great public or private importance and no injustice of a serious and substantial character has occurred to the accused, it is not a fit case for appeal.

7. The learned Advocate-General's argument does not cover any of these things enunciated above. Recently the Division Bench of the Madras High Court consisting of their Lordships Satyanarayana Rao and Raghava Rao, JJ., delivered judgment dismissing the two petitions preferred on behalf of the Government of Madras for leave to appeal to the Supreme Court under Article 134(1)(c) of the Constitution against two orders directing the release of Mr. A.K. Gopalan. Their Lordships observed (as reported in the 'Hindu' of the 10th August, 1951) that:

These petitions for leave to appeal must be dismissed as they raised no substantial question of law of paramount importance such as might be allowed to override the liberty earned by the respondent under their orders and as they were outside the limits of the restricted jurisdiction conferred on them by the Constitution.

The jurisdiction to certify a case as a fit one for further appeal, according to them, is to a certain extent discretionary like the jurisdiction of the Judges of the divisional Court in England to give or refuse leave to appeal from their decision and is a very delicate one. In view of these weighty pronouncements, we have to examine the argument of the Advocate-General.

8. The first contention of the Advocate-General is that though no charge of abetment has been framed, yet if the facts disclose all the elements in the sense of abetment the accused, must be convicted under abetment. The cases cited by S him do support him, but there are cases which go against and as was observed by Ray, J., in Hira Sah v. Emperor AIR (34) 1947 Pat 350:

there is a great deal of difference of opinion with regard to the question whether an accused charged with a substantive offence can be convicted for abetment without a separate charge for it. There are cases on both sides of the line.

Therefore, if we have decided in one way that does not furnish a ground for granting leave to appeal to the Supreme Court.

9. The second argument is regarding the mis-joinder of charges. We have decided, that there cannot be a joinder of charges as the offences charged did not constitute one series of acts so connected together as to form the same transaction. The fact that the offences were committed at the same time or place is neither necessary nor decisive as indicating their being so connected as to form the same transaction, nor would they be so regarded merely because they might have been inspired by one and the same general object. As such charges cannot be joined together and tried, the trial is vitiated; and so the accused was acquitted. We do not agree to the view that because all the offences were committed at the same time, this should be treated as construing as one offence. So, this argument also does not hold good.

10. As regards the third argument, we agree with the learned Advocate-General that Privy Council was not a Court of appeal but the principles as laid down by that Court have been held applicable even in cases of leave to appeal to the Supreme Court as has been held in the cases referred to above. Therefore, this argument also is not maintainable.

11. In view of the principles enunciated in the cases decided by our High Court and those of other States, we are of the opinion that the petition for leave to appeal to the Supreme Court must be dismissed, especially when it raised no substantive question of law of paramount important such as might be allowed to override the liberty earned by the accused.


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