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Bana Behera and ors. Vs. the State of Orissa - Court Judgment

LegalCrystal Citation
SubjectCriminal;Constitution
CourtOrissa High Court
Decided On
Case NumberSupreme Court Appeal No. 12 of 1950
Judge
Reported inAIR1951Ori261; 17(1951)CLT7
ActsConstitution of India - Articles 134(1) and 136
AppellantBana Behera and ors.
RespondentThe State of Orissa
Appellant AdvocateM. Mohanti and ;V. Pasayat, Advs.
Respondent AdvocateAdv. General
DispositionPetition dismissed
Cases ReferredPratims Singh v. The State
Excerpt:
.....v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - is invested under it is to be exercised sparingly & in exceptional cases only, & so far as possible a more or lees uniform standard should be adopted in granting special leave in the wide range of matters which can come up before it under this article. the hearing of the appeal must be confined to those circumstances which could be urged before them at the stage of the preliminary hearing of the case in which special leave bad been granted......in substance argues that the subtleties that once arose for consideration in the matter of special leave to appeal in criminal cases to the p. c. ought not to arise in the case of leave to appeal to the s. c. his contention is that unlike the judicial committee of the p.c, the s. c is a ct. of appeal within the meaning of the said article 134(1) (a) & (b). under the circumstances, he would argue that more liberalised consideration ought to apply.2. bound as we are by the decisions of the s. c. in this matter, we cannot find our way to concede to this contention. we should invite attention to a recent decision of the s. c. in the case of pratims singh v. the state, a i. r. (37) 1950 s. c. 169 : (51 cr. l. j. 1870). there fazl ali j, while agreeing with a similar contention in its.....
Judgment:

Ray, C.J.

1. Tais is an appln. by the accused persons under Article 134(1)(c) of the Constitution invoking our jurisdiction to certify that the criminal case in which they have been convicted is a fit one for appeal to the S. C. The learned counsel, in substance argues that the subtleties that once arose for consideration in the matter of special leave to appeal in criminal cases to the P. C. ought not to arise in the case of leave to appeal to the S. C. His contention is that unlike the Judicial Committee of the P.C, the S. C is a Ct. of Appeal within the meaning of the said Article 134(1) (a) & (b). Under the circumstances, he would argue that more liberalised consideration ought to apply.

2. Bound as we are by the decisions of the S. C. in this matter, we cannot find our way to concede to this contention. We should invite attention to a recent decision of the S. C. in the case of Pratims Singh v. The State, A I. R. (37) 1950 S. C. 169 : (51 Cr. L. J. 1870). There Fazl Ali J, while agreeing with a similar contention in its broad outlines, has expressed himself in the following passage namely:

'Though the S. C. is not bound to follow the decisions of the P. C. too rigidly since the reasons, constitutional & administrative, which sometimes weighed with the P. C. need nut weigh with the S. C. it was necessary that an uniform standard should be laid down in matters of special leave under Article 18S of the Constitution.'

His Lordship has said :

'On a careful examination of Article 136 along with the preceding Article, it seems clear that the wide discretionary power with which this Ct. is invested under it is to be exercised sparingly & in exceptional cases only, & so far as possible a more or lees uniform Standard should be adopted in granting special leave in the wide range of matters which can come up before it under this Article. By virtue of this Article, we can grant special leave in civil oases, in criminal oases, in income tax cases, -in cases which come up before different kinds of tribunals & in a variety of other cases. The only uniform standard which in our opinion can be laid down in the circumstances is that Ct. should grant special leave to appeal in those oases where special circumstances are shown to exist.'

Besides his Lordship has further said that some of the principles laid down by their Lordships of the P. C are useful as furnishing in many cases a sound basis for invoking the discretion of this Ct. in granting special leave, He has been very particular to point out that leave should not be granted in a case which when entertained will constitute the S. C. a third Ct. of act. We have examined the circumstances in this case in the tight of these principles as enunciated by his Lordship and we do not find that there is any special feature in this case which will entitle us to certify that this is a fit pass for appeal. There is not much dispute about the finding of facts which have been very carefully considered & arrived at. The case does not present either complexity of law or of fact or in short, there are no such special features, as are required, according to his Lordship, in the present case.

3. Mr. Mohanty, learned counsel for the applts. urges that the teat laid down by his Lordship applies in ease the case comes under Article 136 of the Constitution, that is to say, in a case where special leave to appeal is prayed for in the S. C., & as such, it is not applicable to the case before us which is one under Article 134(1)(c) I do not find any merit in this distinction. His Lordship has said :

'The assumption that once an appeal bag been admitted by special leave, the entire case is at large & the applt. is free to contest all the findings of fact & raise every point which could be raised in the H. C. or the trial Ct is entirely unwarranted. Only those points can be urged at the final hearing of the appeal before the Schedule which are fit to be urged at the preliminary stage when leave to appeal is asked for, & it would be illogical to adopt different standards at two different stages of the same case.'

4. Suppose, we concede to Mr. Mohanty's argument & we apply a different standard & certify the case as fit one for leave to appeal which at the same time does not fit in with the test laid down by his Lordship. The position would necessarily arise that our jurisdiction will be greater than that of the S. C. This is a contention. if accepted, will land us in absurdity. The hearing of the appeal must be confined to those circumstances which could be urged before them at the stage of the preliminary hearing of the case in which special leave bad been granted. So far as the final hearing is concerned, two different standards cannot be laid down. In the circumstances, this petn. must be dismissed.

Narsimham, J.

5. I agree.


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