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K.S. Nirmalkumarsinhji Vs. Saurashtra State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1953CriLJ1531
AppellantK.S. Nirmalkumarsinhji
RespondentSaurashtra State
Cases ReferredState v. Sayyad Mahibub Noor Mohammad.
Excerpt:
.....itself is a fit one for leave to appeal, and that possibly the only common consideration which the high court under article 134(1)(c) and the supreme court under article 136 may well take into account as a ground for granting leave is that exceptional and special circumstances exist. mysore state air 1952 mys 88 (k), it was observed that the conditions necessary to be satisfied for a certificate under article 134(1)(c) are not specified but the need of a certificate implies that there should be something more than what is required for an ordinary appeal under the code of criminal procedure. there should not only be, in the case substantial points of law but also exceptional and special circumstances in the case, and it must also be shown that substantial and grave injustice has been done..........servant natha.12. it was finally urged by mr. bhatt that even on the facts as held proved by the high court, accused 1 could not be held to have committed the offence of dacoity at rib, and the point stressed was that there was no evidence of identification of accused 1 in the village at the time when the offence was committed. this contention is not open to the applicant to make, after an examination of the entire evidence against accused 1, which we have recapitulated in para 33 of the judgment, we have held that the circumstantial evidence there detailed 'viewed together must conclusively prove that he did join in committing this dacoity and was present there'. we have not taken the view that accused 1 was sitting in the khatari and had not entered the village. on the finding to.....
Judgment:

Shah, C.J.

1. This is an application for a certificate under Article 134(1)(c) of the Constitution of India. The petitioner, who was accused in the case, was tried along with five others, for offences of dacoity and grievous hurt under Sections 395 and 326, Penal Code, and was convicted by the Additional Sessions judge, Gondal, and on appeal the conviction of the petitioner and accused 2, 3 and 6 was confirmed, while accused 4 and 5 were acquitted by this Court. All the accused were also charged under Section 19(e), Arms Act, but en this charge they were acquitted by the Additional Sessions Judge himself. The petitioner now wants a certificate that his case is a fit one for appeal to the Supreme Court.

2. The facts necessary for appreciating the points urged in support of this application briefly stated are that accused 1 and the remaining accused and the deceased dacoit Devayat had, on 9.1.1952, planned a dacoity to be committed at Rib, a village about 13 to 14 miles from Rajkot, and that in pursuance thereof they came in two batches to Rajkot the next day, accused 1 and some others travelling in his own station wagon, referred to as the 'khatari' and after staying at Rajkot till about 6.30 p.m. of January 10, all of them started in the khatari and reached Rib village at about 7.15 p.m. and there committed the dacoity. While at Rajkot, accused 1 had gone to the Bombay Garage and had enquired from the Sales Manager, one Mr. Jayantilal, about the price of a Chevrolet car and was given a price list, Ex. 20, which paper had flown from the khatari on its return journey from Rib to Bhavnagar. Accused 1 was not identified by any of the victims of the dacoity and the evidence against him was circumstantial. It is not necessary to relate all that circumstantial evidence here, and such part of it as is material will be referred to while dealing with the points made by Mr. Bhatt in the course of the arguments.

3. Now the law as to the appellate powers of the Supreme Court in criminal matters under Article 134 and the grounds on which a certificate would be given by the High Court has been considered in-W.H. King v. Emperor : AIR1950Bom380 , and in doing so the Bombay High Court has also considered the scope of the jurisdiction of the Privy Council and thereafter the Federal Court in the matter of criminal appeal. After referring to the decision in-Muhammad Nawaz v. Emperor (B), their Lordships have held that except in cases falling under Sub-clauses (a) and (b) of Article 134(1) in all other criminal matters the Constitution of India intends that the High Courts in the respective States in the territory of India should normally and ordinarily be the final Courts of Appeal, and this fact should therefore be borne in mind in deciding the question whether a certificate of fitness should be given in a particular rase. The test adopted is that there must at least be a substantial question of law, or consideration like those mentioned by Discount Simon L.C. in-Muhammad Nawaz's case (B). The mere fact that the petitioner raises a point which may be a point of law does not justify the granting of a certificate under Article 134(1)(c). In -Muhammad Nawaz's case (B) the Privy Council has held that the Judicial Committee is not a revising Court of criminal appeal, that is to say, it is not prepared or required to re-try a criminal case, and it does not concern itself with the weight of the evidence, or the conflict of evidence or with inferences drawn from evidence, or with questions as to corroboration contradiction of testimony, or as to whether there was sufficient evidence to satisfy the burden of proof. The Judicial Committee cannot be asked to review the facts of a criminal ease, or set aside conclusions of fact at which the tribunal has arrived and broadly speaking the Judicial Committee will only interfere where there has been an infringement of essential principles of justice. Their Lordships quoted with approval the following observations of Lord Watson in-In re, Abraham, Mallory Dillet (1887) 12 AC 459 (C):

The rule has been repeatedly laid down and has been invariably followed, that Her Majesty will not review, or interfere with, the course of criminal proceedings, unless it is shown that, by a disregard of the forms of legal process, or by some violation of the principles of natural justice, or otherwise, substantial or grave injustice has been done

and also Lord Dunedin's dictum

There must be something so irregular, or so outrageous as to shake the very basis of justice'-Mohindar Singh v. Emperor (D).

4. The point as to what is a substantial question of law was dealt with by the Bombay High Court in-Kaikhushroo Pirojsha v. C.P. Syndicate Ltd. AIR 1949 Bom 134 (E), and it has also been considered by this High Court in-Nanji Maneklal v. Kismatlal Nanji Civil Misc. Appln. No. 65 of 1952 (Sau) (F). Both these were civil matters and while the Bombay case fell under Section 110, C.P.C. the case before us was covered by Article 133 and Sections 109(c) and 110, C.P.C. Agreeing with the view in-Kaikhushroo Pirojsha's case (E) we have held that if there is a well established principle of law and that principle of law is applied to the facts of the case that would not be a substantial question of law. Where the question of law was not well settled, or where there was some doubt as to the principles of law involved, it might be regarded as a substantial question of law. This test or standard is equally true of criminal matters.

5. In-Pritam Singh v. The State : 1950CriLJ1270 , the question was as regards the granting of special leave by the Supreme Court under Article 136 of the Constitution, and their Lordships have there laid down that generally speaking, the Supreme Court will not grant special leave to appeal in criminal cases, 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. Their Lordships also accepted the principle that where the two lower Courts had arrived at certain findings of fact on an appreciation of the evidence, the Supreme Court will not constitute itself into a third Court of fact and will not after re-weighing the evidence come to a different conclusion. Another principle accepted was that although the Supreme Court was not bound to follow the principles of Privy Council too rigidly, yet some of those principles are useful as furnishing a sound basis for invoking the discretion of the Court in granting special leave.

6. The next case that may be referred to is the-Public Prosecutor v. A.K. Gopalan : AIR1953Mad66 , and after referring to the three requirements for the grant of special leave stated by the Supreme Court in-Pritam Singh's case (G), the learned Judges held that the second and the third requirements specified in-Pritam Singh's case (G), can have no place in the matter of consideration by the High Court when invited to certify that a case decided by itself is a fit one for leave to appeal, and that possibly the only common consideration which the High Court under Article 134(1)(c) and the Supreme Court under Article 136 may well take into account as a ground for granting leave is that exceptional and special circumstances exist. It was further held that it will not be correct to assume that the principles governing the grant of a certificate under Article 134 and the granting of special leave by the Supreme Court under Article 136 are always the same. But a different view was taken in-Chowthmal v. Hiralal AIR 1951 Assam 38 (I), viz., that the test or the standard which would guide the High Courts, in determining whether a certificate under Article 134(1)(c) should be granted or not ought to be the same which the Supreme Court may apply in granting special leave under Article 136. Again in-Habib Mohd. v. Hyderabad State AIR 1951 Hyd 71 (J), it was held that the principles in connection with the grant of special leave to appeal to the Supreme Court laid down by the Supreme Court in-Pritam Singh's case (G)', are useful as furnishing a sound basis in the matter of granting a certificate under Article 134(1)(c) of the Constitution.

7. In-Bashiruddin v. Mysore State AIR 1952 Mys 88 (K), it was observed that the conditions necessary to be satisfied for a certificate under Article 134(1)(c) are not specified but the need of a certificate implies that there should be something more than what is required for an ordinary appeal under the Code of Criminal Procedure. There should not only be, in the case substantial points of law but also exceptional and special circumstances in the case, and it must also be shown that substantial and grave injustice has been done to enable the High Court to grant the certificate. In-State Raj Kumar Singh AIR 1953 Madh-B 35 (L), the principles laid down in- : AIR1950Bom380 , have been followed. There thus appears to be a cleavage of opinion as to the test or standard to be applied between the Madras High Court on the one hand and that of the Assam and the Hyderabad High Courts on the other. The Bombay High Court's view leans in favour of the latter. However there is no real scope for this difference of opinion to exist, and if the test laid down by the Supreme Court and by the Privy Council is examined a little closely there is really no discord between them. Rather in evolving the requirements, the Supreme Court has its attention drawn to the principles evolved by the Privy Council and it has not sought to depart from these principles though it has worded them in different language. Whatever that may be, we are inclined to agree with the view taken by the Bombay High Court in-AIR 1950 Bom 380 (A), and by the Assam and Hyderabad High Courts, to which we have referred above, the test wherein is not different from the one laid down by the Supreme Court in-Pritam Singh's case (G).

8. Coming then to the points urged by Mr. Bhatt, the first of these is that the statement made by witness Jayantilal to the police at the time he was taken to Devi Bhuvan, the bungalow of accused 1 at Bhavnagar, viz., that accused 1 was the person who had come to him at the Bombay Garage, has been admitted in evidence by the Sessions Judge in contravention of Section 162, Cr.P.C. and that this has caused prejudice to the accused and has resulted in an unfair trial. In the first place, this objection was not made before us by the learned Counsel for the accused at the time of the hearing of the appeal, which indicates that it was not at all considered to be important or as having caused prejudice to the accused. But apart from it, we, in appeal have not taken into account Jayantilal's statement before the police, and in fact there is no reference whatsoever to it in our judgment. Jayantilal has identified accused 1 in Court and we have relied upon the witness's evidence before the Court. It was stated by Mr. Bhatt that on a similar question in the Lioyds Bank case from Bombay special leave to appeal was granted by the Supreme Court, but the order of the Supreme Court is not before us, and we do not know on what grounds the Supreme Court thought it fit to grant the leave. There is therefore no substance in this point urged for the applicant.

9. Regarding witness Mr. Jobanputra, it is contended that he was not examined under Section 161, Cr.P.C. and the point of the grievance is that Mr. Jobanputra was a material witness in the case inasmuch as he had identified the price list, Ex. 20, as the one shown to him shortly after the offence, and that by the failure to record his statement, an important safeguard, which would have afforded an opportunity of bringing out contradictions in the statement made earlier by the witness, has been denied to the accused, and that has caused grave prejudice to him. Mr. Bhatt has cited to us the judgment of Gajendragadkar and Vyas JJ. of the Bombay High Court in-Criminal Appeal No. 232 of 1953 in the case of-State v. Sayyad Mahibub Noor Mohammad. (M)'. There the statement of Mr. Pawri, the Senior Superintendent of Police, to whom the bribe had been offered was not recorded. He was the main witness in the case and their Lordships held that it was a material circumstance on which the accused could rely. However the accused was not acquitted on the sole ground of the omission to record the statement of Mr. Pawri. Mr. Pawri's evidence in the case was scrutinized minutely and it was held that he was not a witness of credibility and did not deserve to be believed, and it was the unreliable evidence of Mr. Pawri coupled with the other circumstances of the case that resulted in the acquittal. This Bombay decision therefore is distinguishable. We have ourselves noted the irregularity in the procedure relating to the failure to record Mr. Jobanputra's statement in the course of the investigation and have duly taken into account that circumstance, and in spite of it we have believed the evidence of Mr. Jobanputra. After all it is a question of appreciation of evidence and it does not involve any substantial question of law. The question as to the weight to be attached to the evidence of a witness on record cannot be deemed to be sufficient ground for allowing leave under Article 134(1)(c). Mr. Jobanputra was, besides, not the only person to identify the price, list, Ex. 20 and there were other witnesses who have also identified it, and we have held the fact of the price list, Ex. 20, having flown from the khatari as proved on the evidence of all the witnesses, including Mr. Jobanputra. No question of law, much less a substantial question of law, therefore, arises on this account.

10. It was also urged that the identity of the khatari had not been proved, but that is a question of fact which cannot be disputed in the present application. It was urged in the alternative that even if the identity of the khatari was proved, and further Ex. 20 had flown from it, it would not imply that accused 1 was in the khatari. This again is not a question which can be gone into in the present application, and we need any state here that the conclusions to which we have arrived have been based upon the appreciation of the evidence in the case and even if that appreciation was erroneous, that does not constitute a ground for granting leave.

11. The next point made by Mr. Bhatt was that the evidence of witness Abhesang was wrongly admitted under Section 288, Cr.P.C. by the Sessions Judge, and that this involves a substantial question of law. It was urged that there was a divergence of judicial opinion as to the admissibility of statements of a witness under Section 288, Cr.P.C. and therefore the question needs to be decided by the Supreme Court. We have fully discussed the legal position regarding the evidence of a witness brought on the record under Section 288, Cr.P.C. in paragraphs 9 to 12 of our judgment, and have referred to several decisions of the High Courts. We do not see there is any real conflict of opinion, but even if there was any, we have accepted the principle that though as a matter of law the statement of a witness brought on the record under Section 288, Cr.P.C. does not require corroboration, as a matter of caution there should be corroboration. We have sought such corroboration and have shown in our judgment that there is ample corroboration to Abhesang's evidence in the committing Court, and we have therefore relied upon it. Therefore the principle for which Mr. Bhatt contends for has been adopted and applied by us and Abhesang's evidence has been tested by that test. As for Abhesang being an accomplice and his evidence therefore was required to be corroborated, we have for reasons given in detail held that Abhesang was not an accomplice, and that cuts short the argument on this point. As it is, Abhesang's evidence has received sufficient corroboration. It was also argued that Abhesang's evidence did not deserve to be relied upon, and that is a question on which the Supreme Court could not interfere. Therefore this point raised for the applicant too does not involve any question of law. Regarding witness Govind Bijal, in regard to whom also the same point was urged by Mr. Bhatt, no contention was made before us at the time of the hearing of the appeal that he was an accomplice, and it is not open to the petitioner to take up that position now. The same observations hold good in respect of Pranjivan and his servant Natha.

12. It was finally urged by Mr. Bhatt that even on the facts as held proved by the High Court, accused 1 could not be held to have committed the offence of dacoity at Rib, and the point stressed was that there was no evidence of identification of accused 1 in the village at the time when the offence was committed. This contention is not open to the applicant to make, After an examination of the entire evidence against accused 1, which we have recapitulated in para 33 of the judgment, we have held that the circumstantial evidence there detailed 'viewed together must conclusively prove that he did join in committing this dacoity and was present there'. We have not taken the view that accused 1 was sitting in the khatari and had not entered the village. On the finding to which we have arrived therefore, there can be no question that accused 1 did jointly commit the dacoity and that the offence of dacoity was made out against, him.

13. There are thus no grounds for granting a certificate and we hold that this case is not a fit one for appeal to the Supreme Court. The application therefore fails and is dismissed.

Baxi, J.

14. I agree.


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