P. S. R. Sadhanantham Vs. Arunachalam
& ANR [1980] INSC 17 (1 February 1980)
PATHAK, R.S.
PATHAK, R.S.
KRISHNAIYER, V.R.
FAZALALI, SYED MURTAZA DESAI, D.A.
KOSHAL, A.D.
CITATION: 1980 AIR 856 1980 SCR (2) 873 1980
SCC (3) 141
CITATOR INFO :
D 1988 SC1531 (182) D 1991 SC2085 (7)
ACT:
Constitution of India 1950, Article 136-Scope
of jurisdiction-High Court in appeal setting aside conviction and sentence by
trial court for murder-No appeal preferred by government-Private party if could
invoke jurisdiction under Article 136.
Words & Phrases-'Crime'-Definition of.
HEADNOTE:
The petitioner was acquitted by the High
Court in appeal, of charges under sections 302 and 148 I.P.C., but the brother
of the deceased-not the State nor even the first informant, petitioned this
Court under Article 136 of the Constitution for special leave to appeal against
acquittal, got leave, had his appeal heard, which was ultimately allowed the
court setting aside the judgment of the High Court, and restoring the
conviction and sentence imposed by the trial court under section 302 I.P.C.
(Arunachalam v. S. R. Sadhananthan [1979] 3 S.C.R. 482).
The petitioner filed the writ petition under
Article 32 of the Constitution, contending: (1) that Article 136 did not
empower the grant of special leave to the brother of the deceased and the grant
of special leave by the Court and its entertaining the appeal violated Article
21 of the Constitution, and (2) before the Court may grant special leave under
Article 136 there must be an antecedent right of appeal absent which the
question of leave by the Court does not arise.
Dismissing the petition,
HELD: (per Krishna Iyer, Murtaza Fazal Ali
and Desai, JJ).
1. Justice is functionally outraged not only
when an innocent person is punished but also when a guilty criminal gets away
with it stultifying the legal system. [877H, 878A]
2. An insightful understanding of the sweep,
scope and character of Art. 136 will easily dispel the dichotomy between an
antecedent right of appeal and a subsequent grant of leave. [878D]
3. The jural reach and plural range of the
judicial process to remove injustice in a given society is a sure index of the
versatile genius of law-in-action as a delivery system of social justice. Our
constitutional order vests in the summit court a jurisdiction to do justice, at
once omnipresent and omnipotent but controlled and guided by that refined yet
flexible censor called judicial discretion. This nidus of power and process,
which master-minds the broad observance throughout the Republic of justice
according to law, is Art. 136. [878E-F] 874
4. In express terms, Art. 136 does not confer
a right of appeal on a party as such but it confers a wide discretionary power
on the Supreme Court to interfere in suitable cases. Article 136 is a special
jurisdiction. It is residuary power; it is extra-ordinary in its amplitude, its
limit, when it chases injustice, is the sky itself. This Court functionally
fulfils itself by reaching out to injustice wherever it is and this power is
largely derived in the common run of cases from Art. 136. [878G-H, 879A]
5. There is a procedure necessarily implicit
in the power vested in the summit court. It must be remembered that Art. 136
confers jurisdiction on the highest court. The founding fathers unarguably
intended in the very terms of Art. 136 that it shall be exercised by the
highest judges of the land with scrupulous adherence to judicial principles
well-established by precedents in our jurisprudence.
Judicial discretion is canalised authority, not
arbitrary eccentricity. [879A-C]
6. It is manifest that Art. 136 is of
composite structure, is power-cum-procedure-power in that it vests jurisdiction
in the Supreme Court, and procedure in that it spells a mode of hearing. It
obligates the exercise of judicial discretion and the mode of hearing so
characteristic of the court process. In short, there is an in-built
prescription of power and procedure in terms of Art. 136 which meets the demand
of Art. 21. [879E-F]
7. If Art. 21 is telescoped into Art. 136, it
follows that fair procedure is imprinted on the special leave that the court
may grant or refuse. With a motion is made for leave to appeal against an
acquittal, this Court appreciates the gravity of the peril to personal liberty
involved in that proceeding. While considering the petition under Art.
136 the court will pay attention to the
question of liberty, the person who seeks such leave from the court, his motive
and his locus standi and the weighty factors which persuade the court to grant
special leave. [879F-G]
8. 'The wider the discretionary power the
more sparing its exercise. The Court may not, save in special situations, grant
leave to one who is not eo nomine a party on the record. [880C-D]
9. Sometimes indifference of bureaucratic officials,
at other times politicisation of higher functionaries may result in refusal to
take a case to this Court under Art.
136 even though the justice of the lis may
well justify it.
In the absence of an independent prosecution
authority easily accessible to every citizen, a wider connotation of the
expression 'standing' is necessary for Art. 136 to further its mission. There
are jurisdictions in which private individuals- not the State alone-may
institute criminal proceedings. [880G-H, 881A]
10. The narrow limits set, into the concept
of 'person aggrieved' and 'standing' needs liberalisation. [881E] Baker v. Carr
(1962) 369 U.S. 186, Attorney-General of the Gambia v. Pierra Sarr N'Jie,
[1961] A.C. 617, Bar Council of Maharashtra v. M. V. Dabholkar, [1975] 2 SCC
702 referred to.
(Per Pathak and Koshal, JJ concurring).
1. Article 136 seeks to confer on the Supreme
Court the widest conceivable range of judicial power, making it perhaps among
the most powerful courts in the world. The judicial power reaches out to every
judgment, decree, determi- 875 nation, sentence or order affecting the rights
and obligations of persons in civil matters, of life and liberty in criminal
matters as well as matters touching the Revenues of the State. It is an attempt
to ensure that the foundations of the Indian Republic, which have been laid on
the bed-rock of justice, are not undermined by justice anywhere in the land.
[884CE] Bharat Bank Ltd. v. Employees of the Bharat Bank Ltd.
[1950] S.C.R. 459, 474, Durga Shankar Mehta
v. Thakur Raghuraj Singh and Others, [1955] 1 S.C.R. 267, 272, referred to.
2. Article 136 vests in the Supreme Court, a
plenary jurisdiction in the matter of entertaining and hearing appeals by grant
of special leave. However, a limitation is inbuilt into the jurisdiction of the
Court and it flows from the nature and character of the case intended to be
brought before the Court, and it requires compliance despite the apparent
plenitude of power vested in the Court. When a petition is presented to the Court
under Article 136, the Court will have due regard to the nature and character
of the cause sought to be brought before it when entertaining and disposing of
the petition. [884E-G]
3. A crime is an act deemed by law to be
harmful to society in general, even though its immediate victim is an
individual. Murder injures primarily the particular victim, but its blatant
disregard of human life puts it beyond a matter of mere compensation between
the murderer and the victim's family. Those who commit such acts are proceeded
against by the State in order that, if convicted, they may be punished. No
private person has a direct interest in a criminal proceeding although
exception may be made by the Statute in certain cases. [885C-F] Kenny's
Outlines of Criminal Law, 16th Edn., p. 2 para 3 Blackstones Commentaries, III
p. 2, Mogul Steamship Co. v. Mc Greger Gew & Co. [1889] 23 QBD 598;
referred to.
4. The notion of crime as a threat to the
whole community is the material counter-part of the formal rule that the State
alone is master of a criminal prosecution. In a criminal proceeding, the State
stands forward as prosecutor on public grounds. No private person has a direct
interest in a criminal proceeding, although exception may be made by the
statute in certain cases. A criminal prosecution is not intended for the
private satisfaction of a personal vendetta or revenge. In India, the criminal
law envisages the State as the prosecutor. [885E-F] Salmond on Jurisprudence,
12th Edn. p. 92 para 14 and Current Legal Problems, 1955; Glanville Williams,
"The Definition of Crime", p. 107 at p. 122; referred to.
5. Under the Code of Criminal Procedure 1973,
s. 378, the right of appeal vested in the State has now been made subject to
leave being granted to the State by the High Court. The complainant continues
to be subject to the prerequisite condition that he must obtain special leave
to appeal. The fetters so imposed on the right to appeal are prompted by the
reluctance to expose a person, who has been acquitted by a competent court of a
criminal charge, to the anxiety and tension of a further examination of the
case, even though it is held by a superior court. [886B-C] 876 Law Commission
of India 48th Report 1972 pp. 17-21 referred to.
6. What follows from the grant of special
leave is an appeal, and the jurisdiction must, therefore, be invoked by a
petitioner possessing a locus standi recognised in law.
[887F-G]
7. Access to the jurisdiction under Article
136 cannot be permitted to a private party who seeks to employ the judicial
process for the satisfaction of private revenge or personal vendetta. Nor can
it be permitted as an instrument of coercion where a civil action would lie. In
every case, the Court is bound to consider what is the interest which brings
the petitioner to court and whether the interest of the public community will
benefit by the grant of special leave. [887B-C]
8. The Court should entertain a special leave
petition filed by a private party, other than the complainant, in those cases
only where it is convinced that the public interest justifies an appeal against
the acquittal and that the State has refrained from petitioning for special
leave for reasons which do not bear on the public interest but are prompted by
private influence, want of bona fide and other extraneous considerations.
[887E-F]
9. The procedure followed by this Court in
disposing of a petition under Article 136 is consistent with the procedure
contemplated by Article 21 for the Court in exercising its jurisdiction will do
so as a court of law following the well-known norms of procedure which have
been recognised for long as governing and informing the proceedings of all
courts. Article 21 is, therefore, not violated. [887G-H, 888A]
ORIGINAL JURISDICTION: Writ Petition No. 355
of 1979.
(Under Article 32 of the Constitution) P. R.
Mridul, K. Jayaram, K. Ram Kumar and Aruneshwar Gupta for the Petitioner.
Soli J. Sorabjee, Solicitor General, R. N.
Sachthey, E.
C. Agarwala and Miss A. Subhashini for
Respondent No. 1.
The Judgment of V. R. Krishna Iyer, S.
Murtaza Fazal Ali, and D. A. Desai, JJ. was delivered by Krishna Iyer, J.
and concurring opinion of R. S. Pathak and A.
D. Koshal, JJ.
was delivered by Pathak, J.
KRISHNA IYER, J. Is it constitutionally valid
or desirable on principle to permit a private citizen, who has but loose nexus
with the victim of a crime, to invoke the special power under Art. 136 of the
Constitution for leave to appeal against an acquittal of the alleged criminal
thereby putting in peril his life or liberty in the absence of any legislative
provision arming such officious outsider with the right to appeal? This issue,
profound on its face but unsound on reflection, falls for decision in this writ
petition under Art. 32 of the Constitution. The facts, compressed into a single
sentence, are that the petitioner was acquitted of a murder charge by the High
Court in appeal but the brother of the deceased-not the State nor even the
first informant-moved this Court under Art. 136, got leave and had his appeal heard
which resulted in the petitioner (accused) being convicted and sentenced to the
life term under s. 302 I.P.C. The present contention urged to upset that
conviction, is that the leave to appeal and the subsequent proceedings were
unconstitutional as violative of Art. 21 the procedural magna carta protective
of life and liberty-and, therefore, the sentence must fail.
This plea, faintly presented before this
Court when the appeal was heard, was briefly considered and rightly rejected.
This second battle, doomed to fail like the first, demands of us a condensed
ratiocination in negation of the contention hopefully urged by Sri Mridul,
counsel for the petitioner.
Two inter-laced issues arise and they turn on
(a) the content and character of Art. 136 vis-a-vis Art. 21, and (b) the locus
standi of a Good Samaritan, if we may use that expression to refer to a
public-spirited citizen seeking to trigger the legal process to see that
justice is done to his neighbour.
Article 21, in its sublime brevity, guardians
human liberty by insisting on the prescription of procedure established by law,
not fiat as sine qua non for deprivation of personal freedom. And those
procedures so established must be fair, not fanciful, nor formal nor flimsy, as
laid down in Maneka Gandhi's case. So, it is axiomatic that our constitutional
jurisprudence mandates the State not to deprive a person of his personal
liberty without adherence to fair procedure laid down by law. The question is
whether there is any procedure, fair or otherwise, which enables a kindly
neighbour who is not a complainant or first informant, to appeal to the Supreme
Court against an allegedly erroneous acquittal by the High Court. The corpus
juris contains no black-letter law arming any such purely compassionate soul to
approach this Court, argues Sri Mridul; and so, his client's liberty has been
deprived by a proceeding initiated by someone without any procedure established
by law. We see the dexterity in the advocacy but reject its efficacy. Nor are
we impressed with the submission that the brother of the deceased in the case,
or any other high-minded citizen, is an officious meddler who has no business
nor grievance when the commission of grievous crime is going unpunished. There
is a spiritual sensitivity for our criminal justice system which approves of
the view that a wrong done to anyone is a wrong done to oneself, although for
pragmatic considerations the law leashes the right to initiate proceedings in
some situations. Again, 'justice is functionally outraged not only when an 878
innocent person is punished but also when a guilty criminal gets away with it
stultifying the legal system. The deep concern of the law is to track down, try
and punish the culprit, and if found not guilty, to acquit the accused.
It is imperative under Art. 21 that there
should be some civilised procedure for holding a man guilty and depriving him
of his liberty. Undoubtedly, this Court, if it grants leave under Art. 136 and
eventually finds him guilty, deprives him of his liberty; and so the crucial
question that falls for decision is as to whether there is any procedure as
predicated by Art. 21 independent of or implicit in Art. 136. It is apparent
that there is no statutory provision which creates a right of appeal in favour
of a stranger enabling him to challenge an acquittal by the High Court. The
Criminal Procedure Code does not create such a right of appeal and, speaking
generally, a right of appeal is the creature of statute. So it is submitted
that before the court may grant special leave under Art. 136 there must be an
antecedent right of appeal, absent which the question of leave by the court
does not arise. The argument is ingenious but inference is fallacious.
An insightful understanding of the sweep,
scope and character of Art. 136 will easily dispel the dichotomy between an
antecedent right of appeal and a subsequent grant of leave, which is the
corner-stone of the contention of the petitioner.
The jural reach and plural range of the
judicial process to remove injustice in a given society is a sure index of the
versatile genius of law-in-action as a delivery system of social justice. By
this standard, our constitutional order vests in the summit court a
jurisdiction to do justice, at once omnipresent and omnipotent but controlled
and guided by that refined yet flexible censor called judicial discretion. This
nidus of power and process, which master-minds the broad observance throughout
the Republic of justice according to law, is Art.
Specificity being essential to legality, let
us see if the broad spectrum spread-out of Art. 136 fills the bill from the
point of view of "procedure established by law". In express terms,
Art. 136 does not confer a right of appeal on a party as such but it confers a
wide discretionary power on the Supreme Court to interfere in suitable cases.
The discretionary dimension is considerable but that relates to the power of
the court. The question is whether it spells by implication, a fair procedure
as contemplated by Art. 21. In our view, it does. Article 136 is a special
jurisdiction. It is residuary power; it is extra ordinary in its amplitude, its
limit, when it chases injustice, in the sky itself. This Court functionally
fulfils itself by reaching out to injustice 879 wherever it is and this power
is largely derived in the common run of cases from Art. 136. Is it merely a
power in the Court to be exercised in any manner it fancies? Is there no
procedural limitation in the manner of exercise and the occasion for exercise ?
Is there no duty to Act fairly while hearing a case under Art. 136, either in
the matter of grant of leave or, after such grant, in the final disposal of the
appeal ? We have hardly any doubt that there is a procedure necessarily
implicit in the power vested in the summit court. It must be remembered that
Art. 136 confers jurisdiction on the highest court. The founding fathers
unarguably intended in the very terms of Art. 136 that it shall be exercised by
the highest judges of the land with scrupulous adherence to judicial principles
well-established by precedents in our jurisprudence. Judicial discretion is
canalised authority not arbitrary eccentricity. Cardozo, with elegant accuracy,
has observed :
The judge, even when he is free, is still not
wholly free. He is not to innovate at pleasure. He is not a knighterrant
roaming at will in pursuit of his own ideal of beauty or of goodness. He is to
draw his inspiration from consecrated principles. He is not to yield to
spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a
discretion informed by tradition, methodized by analogy, disciplined by system,
and subordinated to 'the primordial necessity of order in the social life. Wide
enough in all conscience is the field of discretion that remains." It is
manifest that Art. 136 is of composite structure, is power-cum-procedure-power
in that it vests jurisdiction in the Supreme Court, and procedure in that it
spells a mode of hearing. It obligates the exercise of judicial discretion and
the mode of hearing so characteristic of the court process. In short, there is
an in-built prescription of power and procedure in terms of Art. 136 which
meets the demand of Art.21.
We may eye the issue slightly differently. If
Art. 21 is telescoped into Art. 136, the conclusion follows that fair procedure
is imprinted on the special leave that the court may grant or refuse. When a
motion is made for leave to appeal against an acquittal, this Court appreciates
the gravity of the peril to personal liberty involved in that proceeding. It is
fair to assume that while considering the petition under Art. 136 the court
will pay attention to the question of liberty, the person who seeks such leave
from the court, his motive and his locus standi and the weighty factors which
persuade the court to grant special leave.
When this conspectus of processual
circumstances and 880 criteria play upon the jurisdiction of the court under
Art. 136, it is reasonable to conclude that the desideratum of fair procedure
implied in Art. 21 is adequately answered.
Once we hold that Art. 136 is a composite
provision which vests a wide jurisdiction and, by the very fact of entrusting
this unique jurisdiction in the Supreme Court, postulates, inarticulately
though, the methodology of exercising that power, nothing more remains in the
objection of the petitioner. It is open to the Court to grant special leave and
the subsequent process of hearing are well- established. Thus, there is an
integral provision of power- cum-procedure which answers with the desideratum
of Art. 21 justifying deprivation of life and liberty.
The wider the discretionary power the more
sparing its exercise. Times out of number this Court has stressed that though
parties promiscuously 'provoke' this jurisdiction, the Court parsimoniously invokes
the power. Moreover, the Court may not, save in special situations, grant leave
to one who is not eo nomine a party on the record. Thus, procedural limitations
exist and are governed by well-worn rules of guidance.
Sri Mridul urged that every inquisitive
benefactor or offensive adventurer cannot 'rush in' and upset a verdict of
acquittal by resort to Art. 136. This is really a matter for exercise of
judicial discretion and the Court can be trusted to bear in mind time-honoured
practices and the values of Art. 21. But no dogmatic proscription of leave
under Art.
136 to a non-party applicant can be laid down
inflexibly.
For access to justice is not a cloistered
virtue.
It is true that the strictest vigilance over
abuse of the process of the court, especially at the expensively exalted level
of the Supreme Court, should be maintained and ordinarily meddlesome bystanders
should not be granted 'visa'. It is also true that in the criminal jurisdiction
this strictness applies a fortiori since an adverse verdict from this Court may
result in irretrievable injury to life or liberty.
Having said this, we must emphasise that we
are living in times when many societal pollutants create new problems of
unredressed grievance when the State becomes the sole repository for initiation
of criminal action. Sometimes, pachydermic indifference of bureaucratic
officials, at other times politicisation of higher functionaries may result in
refusal to take a case to this Court under Art. 136 even though the justice of
the lis may well justify it. While "the criminal law should not be used as
a weapon in personal vendettas between private individuals", as Lord
Shawcross once wrote, in the absence of an indepen- 881 dent prosecution
authority easily accessible to every citizen, a wider connotation of the
expression 'standing' is necessary for Art. 136 to further its mission. There
are jurisdictions in which private individuals-not the State alone-may
institute criminal proceedings. The Law Reform Commission (Australia) in its Discussion
Paper No. 4 on "Access to Courts-I Standing: Public Interest Suits"
wrote:
The general rule, at the present time, is
that anyone may commence proceedings and prosecute in the magistrate's court.
The argument for retention of that right arises at either end of the
spectrum-the great cases and the frequent petty cases. The great cases are
those touching government itself-a Watergate or a Poulson. However independent
they may legally be any public official, police or prosecuting authority, must
be subject to some government supervision and be dependent on government funds;
its officers will inevitably have personal links with government. They will be
part of the "establishment". There may be cases where a decision not
to prosecute a case having political ramifications will be seen, rightly or
wrongly, as politically motivated. Accepting the possibility of occasional
abuse the Commission sees merit in retaining some right of a citizen to
ventilate such a matter in the courts.
Even the English System, as pointed by the
Discussion paper, permits a private citizen to file an indictment. In our view,
the narrow limits set, in vintage English law, into the concept of 'person
aggrieved' and 'standing' needs liberalisation in our democratic situation. In
Dabholkar's case this court imparted such a wider meaning. The American Supreme
Court relaxed the restrictive attitude towards 'standing' in the famous case of
Baker v. Carr. Lord Denning, in the notable case of the Attorney-General of the
Gambia v. Pierra Sarr N' Jie, spoke thus:
....the words 'person aggrieved' are of wide
import and should not be subjected to a restrictive interpretation. They do not
include, of course, a mere busybody who is interfering in things which do not
concern him;
Prof. S. A. de Smith takes the same view :
All developed legal systems have had to face
the problem of adjusting conflicts between two aspects of the public 882
interest-the desirability of encouraging individual citizens to participate
actively in the enforcement of the law, and the undesirability of encouraging
the professional litigant and the meddlesome interloper to invoke the
jurisdiction of the courts in matters that do not concern him.
Prof. H.W.R. Wade strikes a similar note :
In other words, certiorari is not confined by
a narrow conception of locus standi. It contains an element of the actio
popularis. This is because it looks beyond the personal rights of the
applicant; it is designed to keep the machinery of justice in proper working
order by preventing inferior tribunals and public authorities from abusing
their powers.
In Dabholkar's case, one of us wrote in his
separate opinion :
The possible apprehension that widening legal
standing with a public connotation may unloose a food of litigation which may
overwhelm the judges is misplaced because public resort to court to suppress
public mischief is a tribute to the justice system.
This view is echoed by the Australian Law
Reforms Commission.
The crucial significance of access
jurisprudence has been best expressed by Cappelletti:
The right of effective access to justice has
emerged with the new social rights. Indeed, it is of paramount importance among
these new rights since, clearly, the enjoyment of traditional as well as new
social rights presupposes mechanisms for their effective protection. Such
protection, moreover, is best assured by a workable remedy within the framework
of the judicial system. Effective access to justice can thus be seen as the
most basic requirement-the most basic 'human right'-of a system which purports
to guarantee legal rights.
We are thus satisfied that the bogey of
busybodies blackmailing adversaries through frivolous invocation of Art.136 is
chimerical. Access to Justice to every bona fide seeker is a democratic
dimension of remedial jurisprudence even as public interest litigation, class
action.
883 pro bono proceedings, are. We cannot
dwell in the home of processual obsolescence when our Constitution highlights
social justice as a goal. We hold that there is no merit in the contentions of
the Writ petitioner and dismiss the petition.
PATHAK, J: The High Court of Madras in its
appellate jurisdiction acquitted the petitioner, Sadhanantham, of charges under
s. 302 and s. 148, I.P.C. Arunachalam, a brother of the deceased, petitioned to
this Court under Article 136 of the Constitution for special leave to appeal
against the acquittal. The court granted special leave, and ultimately allowed
the appeal, Arunachalam v. P.S.R.
Sadhanantham, and setting aside the judgment
of the High Court restored the conviction and sentence imposed by the trial
court under s. 302, I.P.C. The petitioner has filed this writ petition
contending that the judgment and order of this Court is a nullity and should be
set aside. The principal contention is that Article 136 did not empower this
Court to grant special leave to Arunachalam (the third respondent) and the
grant of special leave by the Court and its entertaining the appeal violates
Article 21 of the Constitution.
The maintainability of the appeal on the
ground that Arunachalam was not entitled to petition under Article 136 of the
Constitution for special leave was challenged before the Bench hearing the
appeal, but the Bench over-ruled the objection holding that it had ample power
under Article 136 to entertain the special leave petition. The learned Judges
laid down that the Court had jurisdiction to entertain appeals against
judgments of acquittal by the High Court at the instance of private parties.
We have read the judgment of our learned brother
V. R. Krishna Iyer, but because of the importance of the question we consider
it necessary to set down our own view.
The expense of the appellate jurisdiction of
the Supreme Court flows from an entire code of provisions contained in the
Constitution. It includes an appeal on certificate by the High Court under
Article 132 that the case involves a substantial question of law as to the
interpretation of the Constitution in a civil, criminal or other proceeding
disposed of by a judgment, decree or final order of a High Court, and an appeal
on certificate under Article 133 that the case involves a substantial question
of law of general importance which calls for decision by the Supreme Court. In
a criminal proceeding, disposed of by a judgment or final order or sentence of
a High Court, besides cases where the High Court has convicted the accused and
sentenced him to death either on reversing in appeal an order of acquittal by
884 the trial court or on the case being withdrawn from the subordinate court to
itself for trial, an appeal lies to the Supreme Court where the High Court
"certifies that the case is fit one for appeal to the Supreme Court".
Article 135 confers jurisdiction and power on the Supreme Court with respect to
any matter to which Article 133 or Article 134 does not apply if such
jurisdiction and power were exercisable by the Federal Court immediately before
the commencement of the constitution. Article 136 declares:
"136. (1) Notwithstanding anything in
this Chapter, the Supreme Court may, in its discretion, grant special leave to
appeal from any judgment, decree, determination, sentence or order in any cause
or matter passed or made by any court or tribunal in the territory of
India." Then follow other provisions to which we need not refer.
Plainly, the jurisdiction conferred by
Article 136 seeks to confer on this Court the widest conceivable range of
judicial power, making it perhaps among the most powerful courts in the world.
The judicial power reaches out to every judgment, decree, determination,
sentence or order effecting the rights and obligations of persons in civil
matters, of life and liberty in criminal matters as well as matters touching
the Revenues of the State. It is an attempt to ensure that the foundations of
the Indian Republic, which have been laid on the bed-rock of justice, are not
undermined by injustice anywhere in the land; Bharat Bank Ltd. v. Employees of
the Bharat Bank Ltd. As the Court observed in Durga Shankar Mehta v. Thakur
Raghuraj Singh and Others. Article 136 vests in the Supreme Court a plenary
jurisdiction in the matter of entertaining and hearing appeals by grant of
special leave.
Nonetheless, there is a limitation which, in
our opinion, is of immediate relevance. It is a limitation inbuilt into the
jurisdiction of the Court and flows from the nature and character of the case
intended to be brought before the Court. It is a limitation which requires
compliance despite the apparent plenitude of power vested in the Court. When a
petition is presented to the Court under Article 136, the Court will have due
regard to the nature and character of the cause sought to be brought before it
when entertaining and disposing of the petition.
The question is: Does the brother of a
deceased person, who has been murdered, possess the right to petition under
Article 136 of the 885 Constitution for special leave to appeal against an
acquittal of the accused ? It is a question which touches directly on the
nature of a crime and of a criminal proceeding.
Several different definitions of a crime have
been attempted (and there are some jurists who say that it is impossible of
definition), but there is broad agreement on one attribute of its nature, that
it is an illegal act which amounts to a wrong against the public welfare. Mogul
Steamship Co. v. Cm Greger Gew & Co. As a concept, crime has been defined
as "any conduct which a sufficiently powerful section of any given
community feels to be destructive of its own interests, as endangering its
safety, stability or comfort," which "it usually regards as
especially heinous and seeks to repress with corresponding severity; if
possible it secured that the forces which the sovereign power in the State can
command shall be utilised to prevent the mischief or to punish anyone who is
guilty of it." Crimes were defined by Blackstone as "the breach and
violation of public rights and duties which affect the whole community." A
crime, therefore, is an act deemed by law to be harmful to society in general
even though its immediate victim is an individual. Murder injures primarily the
particular victim, but its blatant disregard of human life puts it beyond a
matter of mere compensation between the murderer and the victim's family. Those
who commit such acts are proceeded against by the State in order that, if
convicted, they may be punished. The notion of crime as a threat to the whole
community, is the material counterpart of the formal rule that the State alone
is master of a criminal prosecution. In a criminal proceeding the State stands
forward as prosecutor on public grounds. No private person has a direct
interest in a criminal proceeding, although exception may be made by the
statute in certain cases. It is common knowledge that a criminal prosecution is
not intended for the private satisfaction of a personal vendetta or revenge.
In India also, the criminal law envisages the
State as the prosecutor. Under the Code of Criminal Procedure, the machinery of
the 886 State is set in motion on information received by the police or on a
complaint filed by a private person before a Magistrate. If the case proceeds
to trial and the accused is acquitted, the right to appeal against the
acquittal is closely circumscribed. Under the Code of Criminal Procedure, 1895
the State was entitled to appeal to the High Court, and the complainant could
do so only if granted special leave to appeal by the High Court. The right of
appeal was not given to other interested persons. Under the Code of Criminal
Procedure 1973, the right of appeal vested in the State has now been made
subject to leave being granted to the State by the High Court. The complainant
continues to be subject to the pre-requisite condition that he must obtain
special leave to appeal. The fetters so imposed on the right to appeal are
prompted by the reluctance to expose a person, who has been acquitted by a
competent court of a criminal charge, to the anxiety and tension of a further
examination of the case, even though it is held by a superior court. The Law
Commission of India gave anxious thought to this matter, and while noting that
the Code recognised a few exceptions by way of permitting a person aggrieved to
initiate proceedings in certain cases and permitting the complainant to appeal
against an acquittal with special leave of the High Court, expressed itself
against the general desirability to encourage appeals against acquittal. It
referred to the common law jurisprudence obtaining in England and other
countries where a limited right of appeal against acquittal was vested in the
State and where the emphasis rested on the need to decide a point of law of
general importance in the interests of the general administration and proper
development of the criminal law.
But simultaneously the Law Commission also
noted that if the right to appeal against acquittal was retained and extended
to a complainant the law should logically cover also cases not instituted on
complaint. It observed:
"Extreme cases of manifest injustice,
where the Government fails to act, and the party aggrieved has a strong feeling
that the matter requires further consideration, should not, in our view, be
left to the mercy of the Government. To inspire and maintain confidence in the
administration of justice, that limited right of appeal with leave given to a
private party should be retained, and should embrace cases initiated on private
complaint or otherwise at the instance of an aggrieved person." 887
However, when the Criminal Procedure Code, 1973 was enacted the statute, as we
have seen, confined the right to appeal, in the case of private parties to a
complainant. This is, as it were, a material indication of the policy of the
law.
Having regard to the fundamental nature of a
criminal proceeding to which reference has been made, it is now appropriate to
examine the considerations which the Court should keep in mind when
entertaining a petition for special leave to appeal by a private party against
an order of acquittal. From what has been said, it is plain that 'access to the
jurisdiction under Article 136 cannot be permitted to a private party who seeks
to employ the judicial process for the satisfaction of private revenge or
personal vendetta.
Nor can it be permitted as an instrument of
coercion where a civil action would lie. In every case, the Court is bound to
consider what is the interest which brings the petitioner to court and whether
the interest of the public community will benefit by the grant of special
leave. 'In a jurisprudence which elevates the right to life and liberty to a
fundamental priority, it is incumbent upon the court to closely scrutinise the
motives and urges of those who seek to employ its process against the life or
liberty of another.' In this enquiry, the Court would perhaps prefer to be
satisfied whether or not the State has good reason for not coming forward
itself to petition for special leave. We think that the Court should entertain
a special leave petition filed by a private party, other than the complainant,
in those cases only where it is convinced that the public interest justifies an
appeal against the acquittal and that the State has refrained from petitioning
for special leave for reasons which do not bear on the public interest but are
prompted by private influence want of bona fide and other extraneous
considerations. We would restrict accordingly the right of a private party,
other than the complainant, to petition for special leave against an order of
acquittal. It is perhaps desirable to keep in mind that what follows from the
grant of special leave is an appeal, and the jurisdiction must, therefore, be
invoked by a petitioner possessing a locus standi recognised in law.
In regard to the question whether the
procedure followed by this Court in disposing of a petition for special leave
under Article 136 is consistent with the procedure contemplated by Article 21,
we have no hesitation in holding that the principle is inbuilt within the terms
of Article 136 itself that the Court in exercising its jurisdiction will do so
as a court of law following the well-known norms of procedure which have been
recognised for long as governing and informing the 888 proceedings of all
courts. We have no hesitation in holding that Article 21 is not violated.
The petitioner has failed to establish that
there is a case for interfering with the judgment of this Court allowing the
appeal.
The writ petition is dismissed, but in the
circumstances there is no order as to costs.
N.V.K. Petition dismissed.
Back
