Sarwan Singh vs The State

Chopra, J.—This is an application under Article 134(1)(c), Constitution of India, by Sarwan Singh whose conviction by the Ses. J., Barnala u/s 302 read with Sections 149 & 148, I.P.C. was uphold & the sentence of transportation for life affirmed by this Court for a certificate that the case is fit one for appeal to the Supreme Court.

Out of the eight persons alleged to be involved in the murder of one Mukhtiar Singh, six were put up for trial & the rest two were shown as absconders. All the six were found guilty & convicted by the trial Judge under Sections 302/149 & 148, I.P.C. and sentenced to transportation for life & one year''s R.I. each on the two counts. On their appeal this Bench arrived at the conclusion that the case against five of them was not free from reasonable doubt & giving them the benefit accepted their appeal & acquitted them of the charges. As against Sarwan Singh, it was found that his participation in the murder was beyond doubt established & it was further found to be proved that the participants in the crime, including the Petitioner, were five or more than five & they formed an unlawful assembly in the prosecution of the common object of which Mukhtar Singh was murdered. In the concluding portion of the judgment it was observed that the Petitioner himself fired the shot that hit the deceased, for at least was a member of the unlawful assembly, a member or members of which fired at the deceased resulting in his death. On these findings while acquitting the rest of the Appellants, the conviction & sentences of the Petitioner were maintained.

Shri Jagan Nath the learned Counsel for the Petitioner contends that since a question of law whether on the acquittal of five of the culprits the conviction of only one, by the application of Section 149, I.P.C., was justified was involved, it was fit case to be taken in appeal. It is stressed that the finding that five of the culprits were entitled to the benefit of doubt which resulted in their acquittal amounted to a finding that they were never there & did not form members of the alleged unlawful assembly. If this view be accepted, it is argued, the number of persons who took part in the assault would be reduced to less than five & therefore, the conviction of the Petitioner under Sections 148 & 302/149, I.P.C. was illegal & unsustainable. The point having not been urged when the appeal was argued was not specifically discussed in the judgment, but on the findings arrived at by us, I do not think it was in any way illegal to convict the Petitioner for the charges, notwithstanding the fact that the participation of the other five who were acquitted was not found to be proved to our satisfaction, On the appreciation of the evidence in the case it was definitely held that the assailants of whom the Petitioner was one, were five or more & they formed an unlawful assembly. This amounted to saying that it was possible that some one or more of the persons acquitted might not have been there & it was difficult to find out which of them might have been falsely implicated, but it was clear that the assailants including the Petitioner were of the requisite number & they constituted an unlawful assembly. I do not agree with the learned Counsel that in every case where the names of all the persons who are alleged to have formed an unlawful assembly & to have participated in a crime are specifically given, the acquittal of some of them reducing the number of the rest to less than five must necessarily result in the acquittal of all. There may be a case in which some of the accused are falsely included in place of the real culprits who in fact had not been identified. The Court while acquitting them who in its opinion appear to have been so implicated may yet convict one or more with respect to whose participation there could not possibly be any doubt if further it be of the definite opinion that the number of the participant s could not be less than five & they formed an unlawful assembly. In the present case all that we found was that on account of paucity of evidence it was not proved to our satisfaction that all the five persona who were acquitted were present & took part in the murder, this does not amount to a finding to the effect that it was proved that all of thorn were not there. Certain observations made in the two cases cited at the bar, to which our attention has been driven, have not made me change the view that I take. In Mustqim Jugga v. Emperor A.I.R.1939 Lah. 416 , the observation was more of an obiter dicta after it had been found that the accused had in fact acted in the exercise of the right of private defence of person, & in thin view of the case it had been held that they could not be said to have formed into an unlawful assembly. Moreover, in that case it was doubtful whether the number of persons who had committed the offence amounted to five & the trial Judge also was not very clear oh the point. In Ram Rup and Another Vs. Emperor, a distinction was drawn between cases whore the evidence discloses that in addition to the men who were actually put upon trial there were others, known or unknown, who were not before the Court, & those where the prosecution had named all the accused some of whom were given the benefit of doubt lowing the number of the rest to loss than five. In the first set of cases it was observed the conviction of persons who may be less than five was legal & illegal in the second. To me the distinction does not appear to be very much material & I do not think the principle laid down would apply to every case. In either of the two categories of the cases, it is not a matter of importance as to who the other associates of the accused found to be guilty were, so long as the Court is definitely of the opinion that the culprits who actually took part were of the requisite number. Supposing there is a case in which the prosecution definitely names five persons as the culprits but the Court comes to the conclusion that though the number was five the participation of one of them was not free from doubt & possibly ho might have been substituted for another, how can it be said that on this finding the four whose participation is established beyond doubt cannot be convicted for having formed an unlawful assembly? It would not, therefore, be correct to say that in all cases where particular parsons are named as participants in a crime & to have formed an unlawful assembly, it would be illegal to convict any number less than five, if the identify of some is not proved beyond doubt & if the Court finds that the number was not less than five. In Rahman v. Emperor A.I.R 1926 Lah. 521, five persons were charged for forming an unlawful assembly & four of them were acquitted as their presence at the place of offence was not satisfactorily proved & it was held that the conviction of only one u/s 147, Penal Code was not illegal. In Sadho v. Emperor 152 I.C. 108, 12 persons were implicated by name to have taken part in a riot & it was not the case of anybody that there were more persons who were not recognised or identified, only three out of them were convicted u/s 147, Penal Code by the trial Judge & the conviction was upheld by the Court because it had been found that more than five persona were members of the unlawful assembly. Mangal Singh Pratap Singh v. Emperor A.I.R.1946 Lah. 309, is another case in which a Division Bench of the Lahore High Court appears to have taken a similar view though the facts were slightly different.

For all these reasons I still hold that the conviction of the Petitioner alone under the circumstances of the case was not illegal.

The next question that comes up for decision is as to whether it is a fit case in which the required certificate should be given because of the point of law involved. The learned Advocate General has urged that the Supreme Court is not an ordinary Court of criminal appeal & does not generally allow facts to be reopened after they have been considered by the High Court & that the appreciation of evidence is the exclusive function of this Court. It is argued that on the evidence in the case it having been found, that the assailants of whom the Petitioner was one, were five or more than five no substantial & grave injustice had been done nor any special or exceptional circumstances exist which might warrant a review of the decision by the Supreme Court. Reliance in support of the contention is placed on Pritam Singh Vs. The State, in which their Lordships after examining all the relevant provisions of the Constitution & taking into consideration the principles followed by the Privy Council made the following observations:

Generally speaking this Court will not grant special leave unless it is shown that exceptional & special circumstances exist, that substantial & grave injustice has been done & that the case in question presents features of sufficient gravity to warrant a review of the decision appealed against.

It was further laid down that the Court would interfere only on points which were fit to be urged at the preliminary stage when the leave to appeal was prayed for.

It is correct that the question which the Petitioner proposes to raise in his appeal before the Supreme Court is a question of law, but I do not think that in every case where a point of law is raised the matter should be certified as a fit one for appeal. Before the Constitution of India came into force it was a well settled practice of the Privy Council that in order to invoke their jurisdiction in criminal matters it was necessary to show that by a disregard of the form of legal process or by some violation of the principles of natural justice or otherwise substantial or grave injustice had been done. In other words, it had to be shown that something irregular or so outrageous had happened as to shake the very basis of justice. The Federal Court, which took the place of the Privy Council for some time, also acted on the same principles. If these principles still apply for an appeal to the Supreme Court, it is clear that this case cannot be treated as lit to go in appeal. It is suggested that by Article 134 of the Constitution of India the Supreme Court has been constituted into a regular Court of Appeal in criminal cases as well, which neither the Privy Council nor the Federal Court was, & therefore, the principles laid down by the Privy Council or the Federal Court would have no application to a case that falls for decision under the Constitution. It is no doubt true that in regard to cases that fall under Sub-clauses (a) & (b) of Clause (1) of Article 134 the Supreme Court has been constituted as a Court of Criminal appeal, but different considerations would prevail when a certificate is to be granted in a case falling under Sub-clause (c) of Article 134(1). On a detailed consideration of the relevant provisions under the Constitution for appeal both in civil as well as in criminal cases a Division Bench of the Bombay High Court in W.H. King Vs. Emperor, expressed the view that except in cases falling under Sub-clause (a) & (b) of Article 134(1) in all other criminal matters the Constitution of India intended the High Courts in the respective States in the territory of India to be normally & ordinarily final Courts of appeal. It was further observed that before a certificate is granted under Clause (c) of the Article the High Court must be satisfied that at least a substantial question of law is involved, & that it would be against the spirit & the letter of the provisions of this sub clause to take the view that in very case where a point of law is raised the matter should be certified as a fit one for appeal to the Supreme Court. This is the view that has now been adopted by their Lordships of the Supreme Court in the subsequently decided case referred by me in an earlier part of this order Pritam Singh Vs. The State, where in addition to the observations reproduced above it was laid down that:

Though the Supreme Court is not bound to follow the decisions of the Privy Council too rigidly since the reasons constitutional & administrative, which sometimes weighted with the Privy Council need not weigh with the Supreme Court yet some of those principles are useful as furnishing in many cases a sound basis for invoking the discretion of the Court in granting special leave.

I do not feel any doubt on the point of law proposed to be taken for the first time in appeal, & do not think that any of the conditions necessary for considering the case to be fit for appeal to the Supreme Court has been made out. The petition is, consequently dismissed.

Teja Singh, C.J.

I entirely agree.