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State Vs. Kamlesh Hari and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Case NumberSupreme Court Criminal Misc. No. 98 of 1959
Judge
Reported inAIR1960All458; 1960CriLJ1044
ActsConstitution of India - Articles 134(1), 136 and 141
AppellantState
RespondentKamlesh Hari and anr.
Appellant AdvocateGovt. Adv.
Respondent AdvocateR.K. Singhal, Adv.
DispositionAppeal dismissed
Excerpt:
.....we think that that decision still holds good, unless and until it is modified by the supreme court. the mere fact that case involves important questions of law on which there is difference of opinion between judges but which do not ultimately affect decision of appeal on merits is not a sufficient ground for granting leave under article 134(1)(c). the position with regard to supreme court is, however, different and in exceptional cases, it is within the prerogative of the supreme court to grant special leave under article 136 even against an order of acquittal where circumstances amounting to grave miscarriage of justice or obvious perversity or deceipt by fraud are made out......kunwar. singh are concerned.'against the order of acquittal this application has been filed for leave to appeal to the supreme court.7. on behalf of the appellant several points have been argued some of which may have been of some importance and there may have been a possibility of certifying this case as a fit one for. appeal to the supreme court had it been a case of conviction. specially it was argued that since there has been a difference of opinion on some of the questions of law involved in the appeal and also on facts it should be certified as a fit case for appeal to the supreme court. in the present case the trial court had acquitted the accused. the presumption of innocence had, therefore, become stronger. that presumption became still stronger when the appeal was dismissed.....
Judgment:

V.D. Bhakgava, J.

1. This is an application for leave to appeal to the Supreme Court under Article 134(1)(c) of the Constitution against our judgment by which we had dismissed the appeal of the State against the acquittalof the opposite parties, Kamlesh Hari and Kunwar Singh.

2. Kunwar Singh, Suresh and Kamlesh Hari were prosecuted inter alia, under Sections 120-B and 396 I. P.C. arid under Section 302 I. P. C. for having criminally conspired with two other persons, namely, Prakash and Imam Ali deceased to commit the offence of theft by house breaking; to commit dacoity with murder of Ganga Saran and obtaining the key of Pyarey Lal's house from Ganga Saran at the Kothri of Khan; and to commit abduction of Ganga Saran for murdering him and for having committed the dacoity along with Prakash and Khan on the 29th of November, 1956, by taking the key, wrist watch and gold ring from Ganga Saran in the Kothri of Khan and in the commission of that dacoity committed the murder of Ganga Saran.

3. Kunwar Singh and Suresh were further charged under Section 363 read with Section 109 I. F. G. and Sections 407 and 307 read with Section 114 I. P. C. for abetting Kamlesh Hari, and Prakash in the abduction of Ganga Saran on 29-11-1956, at 3-30 p.m. from his shop and taking him to the kothri of Khan in order to murder him and for committing house breaking by night on the 29th of November, 1956, at about 7.45 p.m. and in the course of house breaking committed an offence under Section 307 by firing a gun at the crowd and injuring Hari Shanker on his neck.

4. The Sessions Judge had acquitted Kamlesh Hari of all the charges, but he convicted Kunwar Singh under Sections 411, 457 read with Section 34 I. P. C. and sentenced him to various terms of imprisonments. He convicted Suresh under Sections 302, 411, 457 read with Section 34 I. P. C. and 19(f), Arms Act, and sentenced him to death under Section 302 I. P. C. and to various other terms under the other sections.

5. The State filed an appeal No. 1576 of 1958 against the acquittal of Kamlesh Hari which was heard by us. Appeals were also filed by Kunwar Singh and Suresh against their conviction. The appeals filed by Suresh and Kunwar Singh were dismissed, but as regards the Government appeal there was difference of opinion between both of us. My brother, Beg, J. was of opinion that the appeal against the acquittal of Kunwar Singh under Section 302 should be allowed and he should be sentenced to imprisonment for life, but the government appeal directed against the acquittal of Kamlesh Hari should be dismissed in toto. I was of opinion that the government appeals against Kunwar Singh and Kamlesh Hari both should be allowed and I found both of them guilty under Sections 120B read with 390 and 120B read with 302 I. P. C. and was of opinion that they should be sentenced to imprisonment for life under both the counts in addition to the sentence already imposed on Kunwar Singh by the trial court.

6. There being a difference of opinion that) matter was referred to a third Judge, Hon. V. Bhar-gava, J. who was of the opinion that the appeal as against both Kamlesh Hari as well as Kunwar Singh should he dismissed. After his opinion the matter was laid again before us on 16-1-1959, and we passsed the following order:

'In accordance with the opinion of the Third Judge, we dismiss Government appeal No. 1576/58and maintain the order passed by the trial court so far as the accused respondents Kamlesh Hari and Kunwar. Singh are concerned.'

Against the order of acquittal this application has been filed for leave to appeal to the Supreme Court.

7. On behalf of the appellant several points have been argued some of which may have been of some importance and there may have been a possibility of certifying this case as a fit one for. appeal to the Supreme Court had it been a case of conviction. Specially it was argued that since there has been a difference of opinion on some of the questions of law involved in the appeal and also on facts it should be certified as a fit case for appeal to the Supreme Court. In the present case the trial court had acquitted the accused. The presumption of innocence had, therefore, become stronger. That presumption became still stronger when the appeal was dismissed by this Court. In Such circumstances what is the scope of Article 134(1)(c) that has to be considered? We have to keep in mind that the Supreme Court ordinarily does not interfere in matters of facts, but in special circumstances it may interfere if in its opinion exceptional or special circumstances exist and substantial and grave injustice has been done. The powers of the Supreme Court under Article 136 of the Constitution are much wider and unfettered. But so far as this Court is concerned, its powers are not as wide. There is a proviso to Sub-clause (1) of Article 134 to the effect that the High Court shall be guided in certifying by 'such provisions as may he made in that behalf under Clause (1) of Article 145 and to such conditions as the High Court may establish or require:' So far, as we are aware, the Supreme Court has not made any provision under Article 145 Clause (1) nor can we say that there are enough number of cases from which we can come to the conclusion that some conditions have been established under which leave should be granted under Article 134(1)(c) of the Constitution.

8. In Pritam Singh v. The State : 1950CriLJ1270 , their Lordships had laid down certain principles on which Supreme Court will grant leave in Criminal cases. According to that principle the Supreme Court will not grant special leave in criminal cases unless it shall be shown that exceptional or special circumstances exist and that substantial or grave injustice has been done. These principles will also apply in consideration of the question of leave to be granted by this Court also. As regards the scope of Article 134(l)(c) their Lordships of the Supreme Court in the case of the State Government of Madhya Pradesh v. Ramkrishna Ganpatrao Limsey : AIR1954SC20 had observed as follows:

'Article 134 does not provide for an appeal from a judgment, final order or sentence in a criminal proceeding of a High Court, if the High Court has on appeal reversed an order of conviction of an accused person and has ordered his acquittal. In other words, there is no provision in the Constitution corresponding to Section 417, Cr. P. C., and such an order is final, subject, however, to the overriding power vested in the Supreme Court by Article 136 of the Constitution.'

9. The above authority was followed by one of us in the case of State of Uttar Pradesh v. Hira Lal (1957) All LT 228), in which leave was refused on this ground, but special leave had been granted by the Supreme Court. In the present case not only that this Court had acquitted the accused but the trial court had also acquitted the accused and the appeal before this Court against the acquittal had also been dismissed. The dictum of his Lordship Mahajan, J. will apply to the present case where the State has come forward to ask for leave to appeal to the Supreme Court under Article 134(1)(c) of the Constitution against an acquittal.

10. Learned counsel for the State had arguedthat in a later decision of the Supreme court theywere not inclined to follow this dictum. So far ad this dictum is concerned, unless the declared law is overruled by their Lordships of the Supreme Court it is binding on Courts within the territory of India under Article 141 of the Constitution. Learned counsel for the State had referred us to the case of State of Madras v. Gurviah Naidu and Co. Ltd. : 1956CriLJ331 , in which it was observed as follows about the decision of : AIR1954SC20 by S.R. Das, A. C. J. :

'That was a decision of a Bench of three judges and not that of a Constitution Bench. There, the appeal was by special leave granted by this Court. The observation that there was no provision in the Constitution corresponding to Section 417 of the Cr. P. C. was obviously made to emphasise that this Court should not, in an appeal by special leave, interfere with an order of acquittal passed by the High Court merely for correcting errors of facts or law. Without hearing further arguments on the scope of Article 134(1)(c), we would prefer not to express any opinion as Constitution Bench as to the validity of the certificates given by the High Court in this case, for assuming, without deciding, that the certificates were wrongly given, we would, in view of the clear majority decision of this Court on Article 286(l)(b) which is not questioned before us and the equally clear and convincing evidence on record in these cases, be willing, if it were necessary, to regularise these appeals by giving special leave to appeal here and now.'

11. It was argued that since 1954 case was not a case decided by a Constitution Bench and it had been decided by only three Judges, therefore, that ruling is not binding. Article 141 of the Constitution does not lay down that the law declared by a Constitution Bench would be binding. What Article 141 provides is that the law declared by the 'Supreme Court' shall be binding and to our mind even three Judges of the Supreme Court constitute the Supreme Court. In the 1956 case their Lordships have specifically mentioned that they were refraining from expressing any opinion on the previous decision. In the circumstances we think that that decision still holds good, unless and until it is modified by the Supreme Court.

12. Apart from this there is also a decision of Jagannadha Das, C. T. (as he then was' in State of Orissa v. Mina Ketan : AIR1953Ori160 , who held as follows:

'It would, however, be against the policy of legislature to coastrue Article 134(1)(c) as permitting High Court to grant leave to appeal as against judgment of acquittal confirmed by High Court. The mere fact that case involves important questions of law on which there is difference of opinion between Judges but which do not ultimately affect decision of appeal on merits is not a sufficient ground for granting leave under Article 134(1)(c). The position with regard to Supreme Court is, however, different and in exceptional cases, it is within the prerogative of the Supreme Court to grant special leave under Article 136 even against an order of acquittal where circumstances amounting to grave miscarriage of justice or obvious perversity or deceipt by fraud are made out.'

13. It appears that Article 134(1) Clauses (a) and (b) both provide appeal against conviction and it may be argued that on the principle of ejusdem generis sub-clause (c) should also be interpreted so as to mean that an appeal would lie only from a conviction and not from acquittal. There are certain cases of convictions, which may not come under (a) and (b), but may still be judgment or final order of conviction in which, there may be questions of law of importance, and in which the Court might consider that leave should be granted and it is only in those cases that this power should be exercised,

In the circumstance, we think that even it there are some important questions of law involved in this appeal, where there is a difference of opinion of the Hon'ble judges, it would not be a fit case in which this Court should grant special leave to appeal against acquittal. We, therefore, do not propose to discuss the questions of law urged at the bar in support of the application for the grant of leave. The appeal is accordingly dismissed.


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