Babu and 3 Others Vs. State of Uttar
Pradesh  INSC 9 (19 January 1965)
19/01/1965 HIDAYATULLAH, M.
CITATION: 1965 AIR 1467 1965 SCR (2) 771
RF 1968 SC 733 (12) R 1970 SC1266 (10) R 1970
SC1365 (7) RF 1981 SC 365 (2) RF 1982 SC1325 (69) RF 1992 SC 891 (13)
Division Bench-Difference between two judges
referred to a third Judge,--Third Judge how far free to come to his own
conclusion-Code of Criminal Procedure, (Act 5 of 1898), s. 429.
Certificate of fitness-High Court when should
grant certificate in Criminal cases--Constitution of India Art.
The appellants were convicted by the Sessions
Judge under s. 302 with s. 34 of the Indian Penal Code. Two of them were
sentenced to death and two to imprisonment for life. Their appeal before the
High Court was heard by a Division Bench of two judges, one of whom was for
allowing it, the other for dismissing it. The third Judge to whom it was
refer-red dismissed the appeal. The appellants applied for a certificate of
fitness to appeal to the Supreme Court. The certificate was granted mainly on
the ground that the third Judge who heard the appeal had omitted to discuss at
length the question of the genuineness of the first information report.
In the Supreme Court objection was taken on
behalf of the State that the certificate of fitness granted by the High Court
was incompetent in view of the previous decisions of this Court in Haripada Dey
v. State of West Bengal & Anr.  S.C.R. 639, Nar Singh & Anr. v.
State of Uttar Pradesh,  1 S.C.R. 238, Sunder Singh v. State of Uttar
Pradesh, A.I.R. (1956) S.C. 411 and Khushalrai v. State of Bombay,  1
S.C.R. 552. The appellants urged that these cases be reconsidered. A plea for
the reduction of the death sentences was also made.
HELD: (i) Section 429 of the Criminal
Procedure Code contemplates that it is for the third Judge to decide on what
points he shall hear arguments, if any, and that postulates that he is
completely free in resolving the difference as he thinks fit. It was sufficient
for the third Judge to have said on the question of the First Information
Report that he did not consider it necessary to decide the point but if it was
necessary he was in agreement with the Judge on the Division Bench who was for
dismissing the appeal. There was therefore a proper decision by the third Judge
and the certificate could not be based on the omission to discuss the doubts
about the First Information Report. [771 F-H] (ii) The Constitution does not
contemplate a criminal Jurisdiction for this court except in these case covered
by clauses (a) and (b) of Art. 134 which provide for appeals as of right. The
High Court before it certifies the case must be satisfied that it involves some
substantial question of law or principle. Only a case involving something more
than mere appreciation of evidence is contemplated by the Constitution of the
grant of a certificate. What that may be will depend on the circumstances of
the case but the High Court should be slow to certify cases. The High Court
should not overlook that there is a further remedy by way of special leave
which may be invoked in cases where 772 the certificate is refused. The present
certificate did not comply with the requirements of Art. 134(1) (c) :is
explained above. [780 C-F; 781 A] Case law considered.
(iii)That whenever two Judges in appeal
differ on the question of sentence, death sentence should not be imposed
without compelling reasons cannot be raised to the pedestal of a rule, for that
would leave the sentence to the determination of one Judge to the exclusion of
Each case must be decided on its own facts
and a sentence of imprisonment for life can only be substituted if the facts
justify that the extreme penalty of law should not be imposed. [781 E-F]
Kalawati and Another v. State of Himachal Pradesh,  S.C.R. 546 and
Pandurang, Tukia and Bhillia v. State of Hyderabad,  1 S.C.R. 1083,
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 179 of 1964.
Appeal from the judgment and order dated
August 21, 1963, of the Allahabad High Court in Criminal Appeals Nos. 2271 and
2272 of 1962.
Nur-ud-din Ahmad and J. P. Goyal, for the
O. P. Rana, for the respondent.
The Judgment of the Court was delivered by
Hidayatullah, J.-This is an appeal by certificate against the judgment of the
High Court of Allahabad dated May 24, 1963 by which the conviction of and
sentences passed on the four appellants under S. 302 read with S. 34 of the
Indian Penal Code were confirmed. Of the appellants, Babu Singh and Aram Singh
have been sentenced to death and Gajram Singh and Ram Singh to imprisonment for
life. The charge against them was that they had murdered one Babu Singh pradhan
at village Behjoi on October 11, 1961. The pradhan was attacked by the
appellants with spears, gandasa and lathi.
The spears were with Aram Singh and Ram
Singh, the gandasa with Babu Singh and the lathi with Gajram Singh. The motive
for the attack was said to be some former quarrels between Babu Singh pradhan
and father of Babu Singh, the appellant and the action of the pradhan after his
election in supporting on behalf of the Gaon Samaj proceedings for encroachment
started against the fathers of the appellants sentenced to death.
On the day of occurrence Babu Singh pradhan
had gone on cycle to Behjoi to negotiate for the purchase of a Persian wheel.
He had his cycle repaired by one Amrik Singh who was examined as a court
witness. He was returning to his own village Alpur situated to the North-East
of Behjoi at a distance of four miles 773 when he was way-laid, felled from the
cycle and fatally attacked by the appellants. The report of the incident was
made by his brother Sangram Singh at Behjoi Police Station at 8.30 P.m. Sangram
Singh claimed to have accompanied his brother to Behjoi and to be in his
company at the time of the assault. He was the principal eye-witness in the
He gave the time of the assault as 6 P.m. The
First Information Report also mentioned the name-, of Man Sukh (P.W. 9), Ved
Ram (P.W. 4) and Jia Lal (P.W. 1 1) as eyewitnesses. In the Report one Umrao
was also named but he was not examined as it was alleged that he had been won
over by the defence.
The prosecution examined 16 witnesses in
support of the case. Two witnesses were examined by the court and 4 witnesses
were examined for the defence. The Sessions Judge, Moradabad accepted the
evidence of enmity and also of the eye-witnesses and convicting the appellants
302/34, Indian Penal Code sentenced them as
above. Aram Singh who had struck Babu Singh pradhan on the head and transfixed
it with his spear from temple to temple and caused other injuries on vital
organs was sentenced to death as also Babu Singh who had almost decapitated
Babu Singh pradhan with gandasa. 'Me other two appellants were given the lesser
punishment because they had played a minor part.
All accused appealed to the High Court.
The appeal was heard in the High Court by D. S.
Mathur and Gyanendra Kumar, JJ. and Mathur, J. was for dismissing the appeal
while Gyanendra Kumar, J. was for allowing it. The points of difference were
(a) whether the First Information Report was made on October 11, 1961 at 8.30
P.m. or much later, (b) whether the offence took place at 6 P.m. or later when
there was no light to identify the assailants and (c) whether the eye-witnesses
were at all present at the scene and/or were reliable. Mathur J. concurred with
all the conclusions of the Sessions Judge; Gyanendra Kumar, J.
differed because he disbelieved that Sangram
Singh had accompanied his brother. His reasons were that he need not have
accompanied the pradhan and the shop-keeper with whom the brothers were said to
have dealt for the purchase of the Persian wheel was not examined and Amrik
Singh who repaired the cycle of the pradhan did not mention Sangram Singh. He
observed that if Sangram was present at the scene he too would have been slain
and the statement that he was pedalling 14 or 15 paces behind the pradhan was
not believable because cyclists generally ride abreast. He pointed out that as
only one cycle was found at the spot and not the other Sangram Singh had not
774 gone there on cycle. He deduced this from the fact that Sangram Singh admitted
to have gone on foot to Behjoi to make his report and he rejected his
explanation that he did so because the cycle had no light observing that
Sangram Singh could have borrowed an electric torch or some other light. He
disbelieved Ved Ram because he had earlier spoken of lathi blows and no
injuries caused by a lathi were detected at the postmortem examination. One of
the accused (Ramu Singh) had passed a decree against Ved Ram as a Sarpanch and
this was accepted to be the probable motive for his false testimony. Man Sukh
was not believed because he was a previous "history sheeter". Jia
Lal, who had stated that the occurrence took place at 7 P.m., and was
consequently declared hostile by the prosecution, was believed by the learned
Judge who came to the conclusion that no light was available at that hour for
proper identification. The learned Judge was also convinced that there was a
delay in the dispatch of the copy of the First Information Report, special
report and the case diary, and he was of the opinion that the First Information
did not accompany the requisition for postmortem examination sent to the
doctor. He was finally of the view that as no independent eyewitness was
examined the benefit of the doubt must be given to the accused.
The two judgments were then laid before
Takru, J. who agreed with Mathur, J. in accepting the prosecution case. As a
result of his decision the appeals were dismissed. On the application for
certificate of fitness the two learned Judges, who had originally heard the appeal,
again differed : Mathur, J. was in favour of refusing the certificate while
Gyanendra Kumar, J. was for granting it. The latter stated that the main point
of difference earlier was over the authenticity of the First Information
Report, its time and date and Takru, J. had merely stated at the end of his
order that if it was necessary for him to decide the point he would have agreed
with Mathur, J. and would have accepted the First Information Report as
genuine. Gyanendra Kumar, J. felt considerably aggrieved, as it appears from
his order, that this matter which was fully argued before Takru, J. was not
discussed by him in detail. The papers were laid before Broome, J. who agreed
with Gyanendra Kumar, J. on the point that Takru J. had not gone into the
question of the authenticity of the First Information Report and the
genuineness of the various documents which were filed by the prosecution in
support of it. He was for granting a certificate.
When this appeal came on for hearing before a
Divisional Bench the State raised the contention that the certificate granted
by 775 the High Court was incompetent in view of the settled view of this Court
in Haripada Dey v. The State of West Bengal and Anr.(1) Nar Singh and Anr. v.
The State of Uttar Pradesh (2 ) and Sunder Singh v. State of Uttar
Pradesh(,',). The appellants then objected that the point involved was one of
interpretation of Art. 134(1) (c) of the Constitution and it could only have
been decided by a Bench of five Judges and the decisions above-mentioned being
of Divisional Benches were without jurisdiction. The case was accordingly laid
before us for disposal. Before us the same objection to the competency of the
appeal was raised and it was contended on the other side that the decisions of
this Court limiting the powers of the High Court to grant certificate in
criminal cases under Art. 134 (1) (c) were not correct and it is these points
which require decision from us.
There seems to be some misapprehension about
the manner in which the third Judge is required by law to proceed when there is
a difference of opinion between two learned Judges in the High Court in the
decision of an appeal. The provisions of S. 429 Criminal Procedure Code perhaps
escaped notice in the High Court. This section provides :
"429. Procedure where Judges of Court of
Appeal are equally divided.
When the Judges composing the Court of Appeal
are equally divided in opinion, the case, with their opinions thereon, shall be
laid before another Judge of the same Court, and such Judge, after such hearing
(if any) as he thinks fit, shall deliver his opinion, and the judgment or order
shall follow such opinion." The section contemplates that it is for third
Judge to decide on what points he shall hear arguments, if any, and that postulates
that he is completely free in resolving the difference as he thinks fit. In our
judgment, it was sufficient for Takru J to have said on the question of the
First Information Report that he did not consider' it necessary to decide the
point but if it was necessary he was in agreement with all that Mathur J had
said. There was, therefore, a proper decision by Takru J and the certificate
could not be based upon the omission to discuss the First Information Report
and the doubts about it.
It was contended by the State that the
certificate attempted to reopen questions of fact which must be held to be
decided finally (1)  S.C.R. 639.
(2)  1 S.C.R. 238.
(3) A.I.R.  S.C. 411.
p.165-3 776 by the High Court in concurrence
with the Sessions Judge and such a certificate was incompetent in view of the
decisions of this Court earlier mentioned. Reference was also made to
Khushalrao v. State of Bombay(1). The appellants in reply contended that the
interpretation put upon Art. 134 (1) (c) in the earlier cases of this Court was
too narrow and required to be reconsidered.
Article 134 provides for appeals to the
Supreme Court in criminal matters. Clause (1) of this Article, which alone is
material reads "134. Appellate jurisdiction of Supreme Court in regard to
(1)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; or (b)has
withdrawn for trial before itself any case from any court subordinate to its
authority and has in such trial convicted the accused person and sentenced him
to death; or (c)certifies that the case is a fit one for appeal to the Supreme
Provided that an appeal under sub-clause (c)
shall lie subject to such provisions as may be made in that behalf under clause
(1) of article 145 and to such conditions as the High Court may establish or
(2) The first two sub-clauses deal with
special situations and provide for an appeal as of right and they need not be
considered. The third sub-clause permits an appeal in cases which the High
Court certifies as fit for appeal. The subclause does not state the conditions
necessary for such certification. No rules under Art. 145 regulating generally
the practice and procedure of this Court for the grant of certificate by the
High Court have been framed. The power which is granted is no doubt
discretionary but in view of the word "certifies" it is clear that
such power must be exercised with great circumspection and only in a case which
is really fit for appeal. It is impossible by a formula to indicate the precise
limits (1)  S.C.R. 552.
777 of such discretion, but the question has
arisen on a number of occasions in this Court and some of the leading views may
In Haripada Dey v. The State of West Bengal
and Anr.(1), the appellant was convicted under s. 411, Indian Penal Code and
sentenced to two years' rigorous imprisonment for dishonestly receiving and
retaining a motor car which he had reason to believe was stolen. His appeal was
dismissed by J.P. Mitter and Sisir Kumar Sen, JJ. He applied for a certificate
and according to the practice of the Calcutta High Court the petition was
placed not before the Judges who heard the appeal but before another Bench
consisting of the Chief Justice and Lahiri J. The Chief Justice passed an
elaborate order in the course of which he observed "In my view a
certificate of fitness ought to issue in this case, although the question
involved is one of fact.
In my view it is impossible not to feel in
this case that there has not been as full and fair a trial as ought to have
been held. In the circumstances, it appears to me that the petitioner is
entitled to have his case further considered and since such further
consideration can only be given by the Supreme Court, I would grant the
certificate prayed for." As the chief Justice himself said the question
involved-was one of fact, this Court did not approve of the certificate and
held that it was no certificate at all. It was pointed out that a certificate
granted in Criminal Appeal No. 146 of 1956 (Om Prakash v. State of U.P.) was
not accepted when no reasons were given and that the certificate in Haripada
Dey's(1) case was also bad because the reasons were not sound. Bhagwati J,
speaking on behalf of Imam and Govinda Menon JJ and himself, said:
"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 (1)  S.C.R. 639.
778 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." The observations, if we may say so
with respect, are too absolute to be a safe guide in the infinite variety of
cases that come before the courts. There are cases and cases.
It can only safely be said that under Art.
134(1)(c) this Court has not been made an
ordinary Court of Criminal Appeal and the High Courts should not by their
certificates attempt to create a jurisdiction which was not intended. The High
Courts should, therefore, exercise their discretion sparingly and with care.
The certificate should not be granted to afford another hearing on facts unless
there is some error of a fundamental character such as occurred in Nar
In Nar Singh's case(1) 24 persons were tried
under ss. 302/ 149, 307/149 and 148. Indian Penal Code and eight were convicted
by the Court of Session. On appeal to the High Court five more were acquitted
and that left Nar Singh, Roshan Singh and one Nanhu Singh.
Their convictions were upheld by the High
Court and their sentences were maintained.
What had happened in the case of Nanhu Singh
may now be stated from the judgment of this Court :
"By a curious misreading of the evidence
this Nanhu Singh was mixed up with Bechan Singh.
What the High Court really meant to do was to
convict Bechan Singh and acquit Nanhu Singh.
Instead of that they acquitted Bechan Singh
and convicted Nanhu Singh. As soon as the learned High Court Judges realised
their mistake they communicated with the State Government and an order was
thereupon passed by that Government remitting the sentence mistakenly passed on
Nanhu and directing that he be released." All the accused applied for a
certificate and in view of what had happened and as the conviction of Nanhu
Singh on a murder (1)  S.C.R. 238.
779 charge was still subsisting a common
certificate was granted to all of them. The High Court thought that the word
"case" in Art. 134(1) (c) meant the case as a whole. Nanhu Singh did
not appeal and the appeal was filed by Nar Singh and Roshan Singh on the common
certificate. This Court pointed out that the High Court was wrong in thinking
that the word "case" in the sub-clause meant a case as a whole and
the certificate in relation to accused other than Nanhu Singh was bad. The
certificate to Nanhu Singh was said to be proper. The Divisional Bench then
considered the case under Art. 136(1) for special leave but found it unfit.
In Sunder Singh v. The State of U.P. (1) it
was laid down that unless a substantial question of law or principle was
involved the case must not be certified as fit even though the question of fact
may be difficult. Khushal Rao's(2) case again furnishes an example of an
extraordinary situation. The High Court had based a conviction for murder on
dying declarations which it considered to be true but which required to be
corroborated before they could be acted upon in view of the observations of
this Court in Ramnath Madho Prasad v. State of Madhya Pradesh(B)-" it is
the settled law that it is not safe to convict an accused person merely on the
evidence furnished by a dying declaration without further corroboration".
The Court found corroboration in the fact that Khushalrao was absconding for a
long time and was arrested from a room which had only one exit and that was
locked on the outside. When the accused applied for certificate it was pointed
out that there was some evidence which was not brought to the notice of the
High Court establishing that the accused was evading arrest in another case and
the circumstance that he was hiding then became dubious. The High Court felt
constrained to give the certificate because under the ruling of this Court the
conviction was assailable. This Court pointed out that the certificate was bad
because it was not granted by the High Court on any "difficult question of
law or procedure which it thought required to be settled by this Court but on a
question which is essentially one of fact, namely, whether there was sufficient
evidence of the guilt of the accused".
The certificate was perhaps of the type
represented by the certificate to Nanhu Singh which was held proper. The matter
was then considered in an elaborate judgment from the point of view (1) A. 1.
R.  S.C. 411.
(2)  S.C. R. 552.
(3)A. I. R.  S.C. 420.
7 80 of Art. 136(1) and the view about dying
declaration contained in the earlier case was modified. The evidence was
examined afresh and the judgment of the High Court was affirmed.
These cases illustrate different angles of
There is no doubt whatever that sub-clause
(c) does not confer an unlimited jurisdiction on the High Courts. The power
gives a discretion but discretion must always be exercised on some judicial
principles. A similar clause in Art. 133, which allows appeals in civil cases,
has been consistently interpreted as including only those cases which involve a
question of general public importance. That test need not necessarily be
applied to a criminal case but it is clear that mere questions of fact should
not be referred for decision. The Constitution does not contemplate a criminal
jurisdiction for this Court except in those two cases covered by cls. (a) and
(b) which provide for appeals as of right. The High Court before it certifies
the case must be satisfied that it involves some substantial question of law or
principle. In a criminal appeal the High Court can consider the case on law and
fact and if the High Court entertains doubt about the guilt of the accused or
the sufficiency of the evidence it can always give the benefit to the accused
there and then. It is not necessary that the High Court should first convict
him and then grant him a certificate so that this Court, if it thought fit,
reverse the decision. It is thus obvious that only a case involving something
more than mere appreciation of evidence is contemplated by the Constitution for
the grant of a certificate. What that may be will depend on the circumstances
of the case but the High Court should be slow to certify cases. The High Court should
not overlook that there is a further remedy by way of special leave which may
be invoked in cases where the certificate is refused.
In this case the two learned Judges who first
heard the appeal differed on appreciation of evidence. The Criminal Procedure
Code contemplates the resolution of such a difference by the opinion of a third
Judge. We have already drawn attention to the provisions of s. 429, Criminal
Procedure Code relating to the hearing by the third Judge.
It would appear to us that after the decision
of the third Judge accepting the evidence against the appellants no question of
fact survived. The learned Judge who heard the appeal on difference was also
within his right in stating that the doubts which Gyanendra Kumar J. felt about
the genuineness of the First Information Report etc. did not affect him and
that he was in agreement with what Mathur J.
had said on that part 781 of the case. In our
opinion, the certificate did not comply with the requirements of Art. 134 (1)
(c) as explained by us here. We have considered this case from the point of
view of Art. 136(1) but we do not find it fit for the grant of special leave.
The evidence in the case was rightly appraised by Mathur J. and the doubts
which Gyanendra Kumar J. entertained were not justified. We do not, therefore,
grant special leave.
It was contended that as long time has passed
the sentence of death should be substituted by imprisonment for life and
reliance was placed upon Kalawati and Another v. The State of Himachal Pradesh(1)
where such action was taken. In our judgment, each case must be decided on its
own facts and a sentence of imprisonment for life can only be substituted if
the facts Justify that the extreme penalty of the law should not be imposed. We
do not consider this to be such a case..
It was next contended on the authority of
Pandurang, Tukia and Bhillia v. The State Hyderabad (2) that as the two learned
Judges have differed, the extreme penalty of the law should not be imposed. In
the cited case the Judges had differed on the question of sentence itself and
the third Judge before whom the matter was placed was in favour of the death
penalty. Bose J, in reducing the sentence to imprisonment for life, observed :
"But when appellate Judges, who agree on the question of guilt differ on
that of sentence, it is usual not to impose the death penalty unless there are
compelling reasons". This cannot be raised to the pedestal of a rule for
that would leave the sentence to the determination of one Judge to the exclusion
of the other.
In the present case both the Judges appear to
have been in favour of the death sentence because although Gyanendra Kumar J.
was in favour of acquittal he did not object to the confirmation of the death
sentence when Takru J. had given his opinion. The offence here was brutal and
normally the death penalty should follow. We, therefore, decline to reduce the
sentence passed. The appeal fails and is dismissed.
(1)  S.C.R. 546.
(2)  1 S.C.R. 1083.