Haripada Dey Vs. The State of West
Bengal& ANR  INSC 44 (5 September 1956)
BHAGWATI, NATWARLAL H.
IMAM, SYED JAFFER MENON, P. GOVINDA
CITATION: 1956 AIR 757 1956 SCR 639
Constitution of India, Art. 134(1)(c)-Jurisdiction
of High Court-Certificate on mere question of fact no certificate at
all--Constitution of India, Art. 136(1)-Special Jurisdiction of the Supreme
Court to intervene on mere question of facts to be invoked -High Court not to
arrogate that function to itself-Evidence-Prosecution not to be blamed for the
lacuna to adduce evidence by defence.
The High Court has no jurisdiction to grant
certificate under Art. 134(1)(c) of the Constitution on mere question of fact,
and is not justified in passing on such question to the Supreme Court for
further consideration, thus converting the , Supreme Court into a Court of
Appeal on facts.
No doubt the Supreme Court, in case of gross
miscarriage of justice or departure from legal procedure such as vitiates the
whole trial, possesses the power and has special jurisdiction to intervene
under Art. 136(1) of this Constitution and also if the findings of fact were
such as were shocking to judicial conscience; but no High Court can arrogate
that function to itself because it finds itself helpless to redress the
grievance. Certificate granted on mere question of fact would be no certificate
at all; HighCourt should refuse such certificates under Art. 134(1)(c) and
should ask the parties to approach the Supreme Court to invoke its special
jurisdiction under Art. 136(1) of the Constitution.
The accused and not the prosecution is to be
blamed for the lacuna in the defence in not adducing evidence in support of his
contentious, which if forthcoming would have demolished the case of the
Narsingh and another v. The State of Uttar
Pradesh, ( 1 S.C.R. 238), Baladin & Others v. The State of Uttar
Pradesh, (A.I.R. 1956 S.C. 181) and Sunder Singh v. The State of Uttar Pradesh,
(A.I.R. 1956 S.C. 411), referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 86 of 1954.
Appeal under Article 134(1)(C ) of the
Constitution of India from the judgment and order dated the 27th-May 1954 of
the Calcutta High Court in Criminal Appeal No. 158 of 1953.
640 Sukumar Ghose for the appellant D. N.
Mukerjee for P. K. Bose for respondent No. 1.
K. L. Arora for respondent No. 2.
1956. September 5. The Judgment of the Court
was delivered by BHAGWATI J.-The Appellant was charged under Section 411,
Indian Penal Code with Dishonestly receiving or retaining in his possession one
Hillman Car number WBD 4514 bearing Engine and Chassis No. A1178482 WSO
knowing, or having reason to believe the same to be stolen property. The
learned Presidency Magistrate, Calcutta, convicted him of this offence and
sentenced him to rigorous imprisonment for 2 years. The Appellant took an
appeal to the High Court at Calcutta and a Division Bench of the High Court
constituted by Mr. Justice Jyoti Prokash Mitter and Mr. Justice Sisir Kumar Sen
dismissed the appeal confirming the conviction and sentence passed upon him.
The Appellant filed a petition for leave to appeal to this Court and that
petition according to what we are told is the practice obtaining in the
Calcutta High Court came before a Division Bench differently constituted-a
Bench constituted by the learned Chief Justice and Mr. Justice S. C. Lahiri.
This Bench allowed the petition and ordered that a certificate for leave to
appeal under article 134(1)(c) of the Constitution may be drawn up. In an
elaborate judgment the learned Chief Justice observed:
"In my view a certificate-of fitness
ought to issue in this case, although the question involved is one of
After discussing in detail the various
circumstances in the case which did not meet with his approval, he wound up by
"In my view it is impossible not to feel
in this case that there has not been as full and fair a trial as I ought to
have been held. In the circumstances, it appears to me that the petitioner is
entitled to have 641 his case further considered and since such further
consideration can only be given by the Supreme Court, I would grant the
certificate prayed for".
Contrary to what we had in the previous case
before us, viz., Criminal Appeal No. 146 of 1956 (Om Prakash v. The State of
Uttar Pradesh), where no reasons were given as to why the Court exercised its
discretion in granting the certificate, in this judgment we have an elaborate
discussion as to why such discretion was being exercised by the Court. The
reasoning, however, does not, appeal to us.
Whatever may have been the misgivings of the
learned Chief Justice in the matter of a full and fair trial not having 'been
held we are of the opinion that he had no jurisdiction to grant a certificate
under article 134 (1) (c) in a case where admittedly in his opinion the
question involved was one of fact-where in spite of a full and fair trial not
having been vouchsafed to the appellant, the question was merely one of a
further consideration of the case of the Appellant on facts. The mere
disability of the High Court to remedy this circumstance and vouchsafe a full
and fair trial could not be any justification for granting a certificate under
article 134(1) (c) and converting this Court into a Court of Appeal on facts.
No High Court has the jurisdiction to pass on mere questions of fact for
further consideration by this Court under the relevant articles of the
Constitution. We no doubt possess that power and in proper cases have exercised
it under article 136(1). If there has been a gross miscarriage of justice or a
departure from legal procedure such as vitiates the whole trial we would
certainly intervene and we would also intervene if even the findings of fact
were such as were shocking to our judicial conscience and grant in such cases
special leave to appeal under article 136(1). That is, how' ever, a special
jurisdiction which we can exercise under article 136(1), but no High Court can
arrogate that function to itself and pass on to us a matter which in its view
is purely one involving questions of fact, because it finds itself helpless to
redress the grievance. In such a case, the High Court should 83 642 refuse to
give a certificate under article 134(1)(c) and ask the parties to approach us
invoking our special jurisdiction under article 136(1) of the Constitution. We
are, therefore, of the opinion that the discretion that was so elaborately
exercised by the Calcutta High Court in this case was wrongly exercised. The
certificate purporting to have been granted under article 134(1)(c) was no
certificate at all and it does not avail the appellant before us.
Following our decisions in Narsingh and
another v. The State of Uttar Pradesh(1), Baladin & Others v. The State of
Uttar Pradesh(2) and Sunder Singh v. The State of Uttar Pradesh(3), Mr. Sukumar
Ghose for the appellant urged that this was a fit case where we should exercise
our discretion and grant the appellant special leave to appeal under article
136(1) of the Constitution. He pointed out that even though the appellant had
led no evidence in defence there were on the record of the case certain
documents which if taken as proved would have been sufficient to demolish the
prosecution case. These were commented upon by the learned Chief Justice in the
judgment which he delivered when certificate for leave to appeal under article
134(1) (c) was grunted by him. These documents, it was urged, went to show that
sometime before the car in question was stolen, an application had been made by
the appellant to the police authorities in Chandarnagore for registration of
Hillman Minx 1951 Model car which bore the same number on the engine, chassis
and tin-plate as the car in question and on that application, investigation had
been made by the A.S.I.
police, who made his report, the contents of
which would go to establish the case which was put forward by the appellant in
his defence. It is no doubt true that the prosecution has got to prove its case
beyond reasonable doubt and the accused need not open his mouth nor lead any
evidence. If the prosecution succeeds in establishing its case, the conviction
would follow, but if the prosecution fails to discharge the burden which lies
upon it to prove the charge which (1)  1 S.C.R. 238. (2) A.I. R. 1956 B.C.
(3) A.I.R. 1956 S.C. 411.
643 has been framed against the accused he is
entitled to an acquittal. In this case both the Courts below held that the
prosecution bad proved its case by the evidence of the witnesses who were
called including the motor expert, who on applying chemicals discovered on the
engine the very number which was the number on the stolen car. On this state of
the evidence, it was the bounden duty of the appellant if he wanted to prove
his defence to adduce evidence in support of his contentions and if he did not
do so, he had only to thank himself for it. The prosecution could not be blamed
for that lacuna and if both the Courts below went on the record as it stood and
came, to the conclusion, finding it as a fact, that the prosecution had
established its case, it could not be urged, as was sought to be done in the
judgment delivered by the learned Chief Justice in the petition for leave to
appeal to this Court, that evidence, if forthcoming, would have demolished the
case of the prosecution. If those who represented the appellant did not take
counsel within them and put forward the defence as they should have done, there
was no blame on the prosecution nor on the learned Presidency Magistrate who
tried the case and came to the conclusion adverse to the appellant. Whatever
sentiment appears to have been imported in the Matter has been simply out of
place and even if one may have a lurking suspicion at the back of his mind and
might feel that there has not been a full and fair trial as ought to have been
held, that is no justification for going behind the concurrent findings of fact
reached by both the Courts below to the effect that the prosecution had
succeeded in establishing the guilt of the appellant. We see nothing in this
case to warrant an interference under article 136(1) of the Constitution. This
application will, therefore, be rejected and the appeal will stand dismissed.
Bail bond cancelled and the appellant to
surrender his bail.