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State of Orissa Vs. Sashi Bhusan Kar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in60(1985)CLT150; 1985CriLJ1725
AppellantState of Orissa
RespondentSashi Bhusan Kar
Cases ReferredKeshava v. Ramachandra. In
Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. .....made an application under article 134(1)(c) of the constitution for grant o f a certificate for leave to appeal to the supreme court against the judgment and order passed by this court dt. april 26, 1985 in criminal appeal no. 31 of 1982 allowing the appeal preferred by the opposite party herein against the judgment and order of conviction recorded against him under section 5(2) read with section 5(1)(d) of the prevention of corruption act, 1947 and under section 161 of the penal code.2. this application came up for orders before one of us (b. k. behera, j) who was of the view that such matters decided by learned single judges should come up for orders before the same learned single judges and matters decided by division benches should come up for orders before the hon'ble judges.....
Judgment:
ORDER

1. The State has made an application under Article 134(1)(c) of the Constitution for grant o f a certificate for leave to appeal to the Supreme Court against the judgment and order passed by this Court dt. April 26, 1985 in Criminal Appeal No. 31 of 1982 allowing the appeal preferred by the opposite party herein against the judgment and order of conviction recorded against him under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947 and under Section 161 of the Penal Code.

2. This application came up for orders before one of us (B. K. Behera, J) who was of the view that such matters decided by learned single Judges should come up for orders before the same learned single Judges and matters decided by Division Benches should come up for orders before the Hon'ble Judges constituting those Benches, but as in some earlier cases, matters decided by the learned single Judges had been placed before the Division Benches for grant of certificates for leave to appeal to the Supreme Court, this matter was placed before the Hon'ble the Chief Justice for appropriate direction and under the direction of our Lord the Chief Justice, the matter has been placed before this Division Bench for orders.

3. We have heard the learned Counsel for both the sides. While the learned Standing Counsel has submitted that the written application made before this Court is maintainable, it has been contended on behalf of the opposite party that it is not. According to the learned Standing Counsel, substantial questions of law are involved. It has, on the other hand, been contended on behalf of the opposite party that no such questions are involved and it is not a fit case it which this Court should issue a certificate for leave to appeal to the Supreme Court.

4. Article 134 of the Constitution in so far as is relevant for the purpose of the matter before us, 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 if the High Court certifies under Article 134A that the case is a fit one for appeal to the Supreme Court. Article 134A inserted in the Constitution of India which has come into force with effect from Aug. 1, 1979 reads:

134A. Certificate for appeal to the Supreme Court. - Every High Court, passing or making a judgment, decree, final order, or sentence, referred to in Clause (1) of Article 132 or Clause (1) of Article 133, or Clause (1) of Article 134,-

(a) may, if it deems fit so to do, on its own motion; and

(b) shall, if an oral application is made, by or on behalf of the party aggrieved, immediately after the passing or making of such judgment, decree, final order or sentence,

determine, as soon as may be after such passing or making, the question whether a certificate of the nature referred to in Clause (1) of Article 132, or Clause (1) of Article 133 or, as the case may be, Sub-clause (c) of Clause (1) of Article 134, may be given in respect of that case.

5. As would be clear from this provision made in the Constitution of India, a certificate for leave to appeal to the Supreme Court can be granted on an oral application made by or on behalf of the aggrieved party immediately after the passing or making of the judgment, decree, final order or sentence or if the Court deems it fit on its own motion that such a certificate should be granted. By making express provision in Article 134A that leave to appeal can be granted as provided therein, a written application for leave to appeal to the Supreme Court cannot be entertained in law. What has been provided in Art 134A is the only course for grant of a certificate for leave to appeal. It cannot be said to be an enabling or supplemental provision.

6. The new Article 134A has been introduced with the object 'of avoiding delay. If the oral application for grant of a certificate is made immediately on the pronouncement of the judgment, all the facts of the case would be fresh in the mind of the Hon'ble Judge or in the minds of the Hon'ble Judges deciding the cases, it has been stated in para 12 of the Statement of Objects and Reasons of the Constitution (Forty-fifth Amendment) Act, 1978, that it was proposed to amend the Articles 132 to 134 and insert a new Article 134A to provide that a High Court should consider the question of granting a certificate immediately on the delivery of the judgment, decree, final order or sentence on an oral application by a party or if the High Court deems it fit so to do on its own motion.

7. In view of this constitutional mandate, any other provision in any law for the time being in force in conflict with Article 134A shall be rendered invalid and inoperative. In this connection, reference may be made to Article 132 of the Indian Limitation Act providing for sixty days' time to make an application in the High Court for leave to appeal to the Supreme Court. Rule 2 in Chapter III of Part-I of the Orissa High Court Rules reads:

2. Matters connected with appeals to the Supreme Court where written applications are made shall ordinarily be laid before the single Judge or the Division Bench, as the case may be, disposing of the matters. If such single Judge or the Division Bench is not available, it may be placed before the Bench presided over by the Chief Justice.

Some provisions with regard to leave to appeal to the Supreme Court have also been made in Chapter XIX of Part-Ill of the Rules of the High Court. The provisions in Article 132 of the Limitation Act and the aforesaid Rules of this Court which are in conflict with Article 134A of the Constitution of India would no more hold the field. The Rules of this High Court need immediate amendments on the lines of the provision made in Article 134A of the Constitution of India.

8. This view of ours finds support in a Division Bench decision of the Calcutta High Court reported in (1980) 84 Cal WN 657, Rickeit and Colman of India v. Fifth Industrial Tribunal and a Full Bench decision of the Karnataka High Court reported in : AIR1981Kant97 , Keshava v. Ramachandra. In the latter decision, the learned Judges of the Karnataka High Court have also quoted the speech made by Mr. Shanti Bhusan, the then Minister of Law, while moving the Bill giving the purpose for which the new provision in Article 134A was proposed to be inserted. la both these decisions, it has been held that in spite of the existing provision in Article 132 of the Limitation Act, no written application can be maintained in the High Court in view of the bar contained in Article 134A of the Constitution No decision of the Supreme Court or this Court on this question has been placed by either side.

9. For the reasons aforesaid, we hold that the written application made by the State for leave to appeal to the Supreme Court and the subsequent application made to add an additional ground in Miscellaneous Case No. 3 of 1985 are not maintainable in law.

10. When the judgment was delivered by one of us (B. K. Behera, J.) on April 26, 1985, he was sitting in a Division Bench with another learned Judge. The learned Standing Counsel has submitted before us that for this reason, it was not possible to make the oral application immediately at the time of delivery of the judgment. We are not prepared to accept this contention as it was open to him to make an oral application when the judgment was delivered in which case appropriate steps could have been taken for having the matter listed for orders on the same day in the chamber or immediately thereafter. The same thing may be done when two Hon'ble Judges constituting a Division Bench have decided the case, but one of the Hon'ble Judges sitting in a Division Bench with another Hon'ble Judge delivers the judgment. In such cases, similar steps may be taken for constituting the same Division Bench who has decided the matter for the purpose of considering the oral application for leave to appeal to the Supreme Court.

11. With a view of avoiding inconvenience to the parties, it would be appropriate, in our view, to constitute the Bench of the learned Judge or Judges who are parties to the judgment for the purpose of delivery of the judgment so that oral application for leave to appeal can be made immediately and disposed of in accordance with Article 134A of the Constitution of India.

12. It has been submitted by the learned Standing Counsel that because of the constitution of the Bench when the judgment was delivered and one of us (B. K. Behera, J.) delivered the judgment while sitting with another Hon'ble Judge in Division, the State had the impression that no oral application could be made. It has also been submitted by him that in view of Rule 2 in Chapter III of Part-1 of the Rules of this High Court providing for making a written application, he was under the bona fide view that such a written application could be made. As held by us, no written application can now be maintained in view of the provision made in Article 134A of the Constitution of India.

13. The suo motu power exercisable under Article 134A of the Constitution of India had not been exercised in this case when the judgment was delivered or soon thereafter. However, in view of the submission made by the learned Standing Counsel that in the circumstances of this case, this Bench may consider on its own motion the question of grant of leave, we have examined as to whether it would be appropriate to exercise the suo motu power of this Court and certify that this is a fit case for granting a certificate for leave to appeal to the Supreme Court.

14. We find that no substantial questions of law of general importance requiring examination by the Supreme Court are involved. We do not find it appropriate to grant a certificate exercising the suo motu jurisdiction of this Court.

15. We would accordingly dismiss the application for leave to appeal to the Supreme Court along with the application for incorporating an additional ground.


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