T.C. Raghavan, Ag. C.J.
1. This is a petition under Article 134(1)(c) of the Constitution for a certificate that the case is a fit one for appeal to the Supreme Court. We may straightway observe that this is not a fit case for appeal under Article 134(1)(c).
2. Rut, when the petition came up for hearing on a previous occasion, we felt that the case might come within the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act. Central Act 28 of 1970. And the petition was adjourned at the request of the counsel of the petitioners; and it has come up now for further consideration.
3. Article 134(1)(c) reads:
An appeal shall lie 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-
(a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death.And Section. 2(a) of Act 28 of 1970 reads:
Without prejudice to the powers conferred on the Supreme Court by Clause (1) of Article 134 of the Constitution, an appeal shall lie 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-(a) has on appeal reversed an order of acquittal of an accused person and sentenced him to imprisonment for life or to imprisonment for a period of not less than ten years.
These two provisions are similar in language: in other words, Section 2(a) of Act 28 of 1970 is just an enlargement of the ambit of Article 134(1)(c) of the Constitution.
4. Now, the first question we have to consider is whether the case will fall within Section 2(a) of Act 28 of 1970.
5. The petitioners and two others were prosecuted Under Section 302 of the Penal Code read with Section 34 thereof; and the Sessions Judge acquitted all except the first petitioner. The first petitioner was convicted Under Section 304, Part II and sentenced to rigorous imprisonment for seven years. Both the first petitioner and the State filed appeals, the first petitioner against his conviction and sentence Under Section 304 and the State against the acquittal of all the accused persons Under Section 302 read with Section 34. We dismissed the appeal filed by the first petitioner and allowed the appeal filed by the State in part convicting the first petitioner Under Section 302 and sentencing him to imprisonment for life and convicting the second petitioner Under Section 323 and awarding him a sentence of rigorous imprisonment for six months. And we dismissed the appeal against accused persons 3 and 4 confirming their acquittal.
6. It may be possible to urge that Section 2(a) of Act 28 of 1970 does not ' apply to a case like this and the Act applies only to a case of complete acquittal and not to a case where a person has been charged of a more serious offence and convicted of a lesser offence, but, on appeal, convicted of the more serious offence and awarded life imprisonment or imprisonment of not less than ten years. We do not think that this contention can stand, because, when a person is charged of a more serious offence but is convicted and sentenced of a lesser offence, what happens is that he is acquitted of the more serious offence. Therefore, in a case like the one before us where the charge was Under Section 302 and the conviction was Under Section 304, Part II, what the Sessions Judge did was to acquit the first respondent of the offence Under Section 302 and to convict and sentence him of a lesser offence. If so, the case must squarely fall within Section 2(a) of Act 28 of 1970.
7. In this connection, our attention has been drawn to the decision of the Supreme Court in Tarachand Damu Sutar v. The State of Maharashtra : 2SCR775 , dealing with Article 134(1)(c) of the Constitution, which, as already pointed out, is in the same language as Section 2(a) of Act 28 of 1970. The five learned Judges who constituted the Bench have agreed (though there has been a divergence of opinion on the merits of the case) that the word 'acquittal' in Article 134(1)(c) does not mean that the trial must have ended in a complete acquittal but would also include the case where an accused person has been acquitted of the charge of murder and has been convicted of a lesser offence. During the course of the discussion, we find the Supreme Court referring to the decision of the Privy Council in Kishan Singh v. Emperor A.I.R. 1928 PC 254, where their Lordships of the Privy Council have considered Section 439(4) of the Code of Criminal Procedure. After referring to this decision, the Supreme Court has applied the same principle to Article 134(1)(c) of the Constitution, which interpretation must apply equally to Section 2(a) of Act 28 of 1970. Therefore, the first petitioner is entitled to appeal, as of right, to the Supreme Court.
8. The next question that arises is (whether the present petition is maintainable |before us. In our opinion, the petition is |not maintainable. The language of Article 134 (1) is different from the language of. Article 133(1) relating to appeals to the Supreme Court in civil matters Article 133(1) reads:
An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies-
Whereas Article 134(1) reads:
An appeal shall lie 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
(We have already extracted this once.) Evidently, under Article 133(1) a certificate from the High Court is necessary, even if the case falls under Clause (a) of the Article that the amount or value of the subject-matter of the dispute in the court of first instance and still in dispute on appeal was and is not less than twenty thousand rupees, etc., whereas under Article 134(1) no such certificate from the High Court is necessary. It follows that the present petition for a certificate of fitness (may be that the appeal is even as of right) does not lie to this Court, The petitioners should go straight before the Supreme Court.
9. The petition is dismissed.