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Judgment
Oral leave for getting a certificate from this Court to file an appeal before the Supreme Court is sought for by Mr. Raghunathan, the learned
counsel for the petitioner by raising a question, whether the evidence collected relating to certain incident which took place after filing of the
complaint would be admissible under sections 8 and 11 of the Evidence Act.
I have elaborately dealt with this question in the original order dated 17-9-1997 dismissing the revision filed by the petitioner holding that the
photographs taken by the complainant subsequent to the filing of the complaint would not be admissible either Sections 8 and 11 of the Evidence
Act, in the light of the facts and circumstances of the case.
However, in order to raise this question, the learned counsel for the petitioner is seeking oral leave to file an appeal before the Apex Court.
In this regard, the counsel for the petitioner and the respondent were heard at length. Both the counsel would elaborately put forth their
respective submissions by citing various authorities.
In Amal Roy v. State, 1960 Cri LJ 1666 : (AIR 1960 Tripura 44), the High Court of Tripura has observed as follows :-
The question whether permission to cross-examine a prosecution witness was rightly given to the prosecution in the exercise of discretion u/s 154,
Evidence Act at the stage of his re-examination is a very important question of law which requires an authoritive pronouncement of the Supreme
Court.
........ All things considered, I consider this a fit case for issuing the certificate asked for under Art. 134(1)(c) of the Constitution.
In Chinnamerkathian and Others Vs. Ayyavoo and Others, , a Division Bench of this Court has held as under (para 5) :-
According to this decision, if a question of law is fairly arguable, when there is room for difference of opinion on it, or when the Court though it
necessary to deal with that question at some length and discuss alternative views then the question would be a substantial question of law and that if
the question was practically covered by the decision of the highest court or the general principles to be applied in determining the question we are
well settled and the only question was of applying these principles to the particular facts of the case, it would not be a substantial question of law.
Applying this test we are of the opinion that the petitioners are entitled to a certificate under Art. 133(1)(b) and (c).
In Kannan Motor Transports (P.) Ltd. Vs. Prabhu Transports (P.) Ltd. and Others, , this Court has observed as follows :-
The learned Counsel draws our attention to the decision of the Supreme Court in Sir Chunilal V. Mehta and Sons, Ltd. Vs. The Century Spinning
and Manufacturing Co., Ltd., , where it has been held that a substantial question of law is one which is of general public importance or which
directly or substantially affects the rights of parties and which have not been finally settled by the Supreme Court, the Privy Council or the Federal
Court or which is not free from difficulty or which calls for discussion of alternative views by the Supreme Court. As already stated whether a
particular circumstance is relevant or not has to be seen with reference to each case and it is not possible to divorce the particular set of
circumstances under which the circumstance arises.
In State v. M. R. Moorthi 1974 MLW (Cri) 203 Krishnaswamy Reddy, J. (as he then was) has observed as follows :-
In the result, I am of the view that no question of law nor public importance is involved in this case. Leave refused.
In Babu and Others Vs. State of Uttar Pradesh, , the Apex Court has held thus (Para 14) :-
There is no doubt whatever that sub-clase (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 High Court before it certifies the
case must be satisfied that it involves some substantial question of law or principle. .... 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 Rimmalapudi Subba Rao Vs. Noony Veeraju and Others, , the Full Bench of this Court has observed as follows (Para 9) :-
It is neither possible nor useful to attempt to exactly define terms like ""substantial"" and ""just and enquitable"". Ultimately it resolves into itself into
their meaning that the Court considers to be substantial, reasonable or just and equitable. The use of the adjective ""substantial"" makes it clear that
any question of law as such would not justify the grant of a certificate u/s 110. It must be a substantial question; that is to say, the question must
have some substance, i.e. worth or merit. Bearing this in mind in consideration of the authorities which I have cited leads to the following general
principles. When a question of law is fairly arguable, when there is room for difference of opinion on it, then such a question would be a substantial
question of law.
In Sushil Kumar Gupta Vs. Joy Shanker Bhattacharyya, , the Supreme Court has held as under (para 9) :-
A certificate under this clause is impermissible on questions of fact and when a case does not disclose a substantial question of law or principle
then the certificate granted by the High Court is liable to be revoked by this Court, though such prima facie non-disclosure would not by itself
automatically invalidate the certificate. In the case in hand no substantial question of law principle was made out at the bar and the certificate was
clearly misconceived though it vaguely states that several questions of law are involved.
In State of Bihar Vs. Bhagirath Sharma and Another, , the Apex Court has observed as follows (at pp 2199-2200, para 4 of Cri LJ) :-
The word ""certify"" in Art. 134(1)(C), as often observed by this Court, is a strong word postulating the exercise of judicial discretion in determining
if the question requiring decision by this Court involves a matter of principle or a substantial question of law of great general importance. Such
certificate is not to be given as a matter of course on the mere ground that the impugned decision is considered to be erroneous. There must be
exceptional or special circumstances like infringement of essential principles of justice or some different questions of law of great public or private
importance. It is not to be granted so as to convert this Court into an ordinary court of further appeal.
In Baladin and Others Vs. State of Uttar Pradesh, , the Apex Court has held as follows (para 14) :-
It indicates that the High Court must bring its mind to bear on the questions and, as in all cases of judicial orders and certificates, the reasons for
the order must be apparent on the face of the order itself. The Supreme Court must be in a position to know first that the High Court has applied
its mind to the matter and not acted mechanically and, secondly, exactly what the High Court''s difficulty is and exactly question of outstanding
difficulty or importance the High Court feels this Court ought to settle.
In Sidheswar Ganguly Vs. The State of West Bengal, the Supreme Court has observed as follows (Para 3) :-
The legal position under Art. 134(1)(c) is that it is not a case of ""granting leave"" but of ""certifying"" that the case is a fit one for appeal to Supreme
Court. ""Certifying"" is a strong word and a High Court is in error in granting a certificate on a mere question of fact, and is not justified in passing on
an appeal for determination by the Supreme Court when there are no complexities of law involved in the case, requiring an authoritative
interpretation by that Court.
In Sunder Singh Vs. State of Uttar Pradesh, , the Apex Court has held as under (at p. 412) :-
It was observed by this Court that the grant of a certificate under Art. 134(1)(c) is not a matter of course but that the power has to be exercised
after considering what difficult questions of law or principle were involved in the case which should require the further consideration of this Court. If
the case as decided by the High Court on the face of it did not involve any such questions, then apparently there was no justification for the High
Court to certify that the case is a fit one for appeal to this Court.
The careful reading of the above referred decisions would reveal that if a case does not involve any question of law, that too, a substantial
question of law, which alone would justify to give a certificate to file an appeal in the Apex Court, then however difficult the question of fact may
be, that would not justify the grant of a certificate under Art. 134(1)(c) of the Constitution. As indicated by the Apex Court, the word ""certifies"" in
sub-article (1)(c) is a strong word which requires this Court to look closely into the case to see if any special consideration arises.
In the instant case, I have held in the original order that the evidence collected subsequent to the filing of the complaint in this case will not
satisfy the requirements of Sections 8 and 11 of the Evidence Act, in the light of the facts of the case.
u/s 8 of the Evidence Act, the conduct of the accused, whether it was previous or subsequent thereto, which is an offence and is the subject of
any proceeding would be relevant, only if such conduct influences or is influenced by any fact in issue or relevant fact. As I have observed, the
offence alleged in the private complaint u/s 497 or 498, I.P.C. was already complete and the subsequent incident on 14-12-1995 after filing of the
complaint may not constitute the subsequent conduct relating to the facts in issue and therefore, it cannot attract Section 8 of the Evidence Act.
Similarly, I have also held that Section 11 of the Evidence Act would not be applicable to the present facts of this case, as the section would
contain the words ""highly probable"" which indicates that the connection between the facts in issue and the collateral facts must be immediate, as to
render the co-existence of the two highly probables. I further observed that the subsequent incident cannot be said to be the highly probable taking
into consideration of the facts of the case. Therefore, in my view, there is no substantial question of law nor any question of general importance to
be decided by the Supreme Court.
As referred earlier, a number of judgments of the Supreme Court would give a mandate that the reference to the Supreme Court by giving a
certificate is not a routine one and certificate under the Art. 134(1)(c) is not permissible on questions of the fact, more particularly, when the instant
case does not disclose a substantial question of law. Therefore, the oral leave sought for is declined.
Order accordingly.