minal Appeal No 115 of 1960
Appeal from the judgment and order dated September 18 1959 of the Calcutta High Court in Government Appeal No 14 of 1956
48 B L Anand Ganganarayan Chandra and D N Mukherjee and P K Bose for the appellant
K B Bagchi section N Mukherjee and P K BOSE for the respondent
April 12
The Judgment of the Court was delivered by KAPUR J
This is an appeal against the judgment and order of the High Court of Calcutta in which a preliminary objection has been taken that the certificate under article 134 1 e is not a proper certificate and should therefore be cancelled
A further question would arise as to whether it is a case in which special leave to appeal should be granted under article 136 if we find that the preliminary objection is well founded
The appellant was tried for murder under section 302 of the lndian Penal Code in the court of the Additional Sessions Judge at Alipore sitting with a jury
The jury returned a verdict of not guilty and the appellant was acquitted
Against that order the State took an appeal to the High Court and the Division Bench found that there was mis direction in the charge to the jury and therefore after consideration of the evidence it set aside the verdict of the jury allowed the appeal and sentenced the appellant to imprisonment for life
The appellant then applied to the High Court for a certificate under article 134 1 c which was granted by another Division Bench of the Court which had not heard the appeal
Three points were urged before the Bench hearing the applioation for certificate 1 that there was unusual delay in delivering the judgment and the Division Bench hearing the appeal forget to consider many of the question of fact which were raised and argued before it
2 that the High Court had no power to substitute its own estimate 49 of the evidence in an appeal against the order of acquittal in a trial by jury and 3 that as a matter of fact there were no such misdirection as caused a failure of justice or a mistrial and therefore the High Court was not entitled to examine the evidence
The learned Judges were of the opinion that there was no substance in points Nos 2 and 3 but the first points did raise a question of importance
The learned Chief Justice observed The delay in delivering judgment is certainly a very unusual fact and it may lead to the result that some of the points which were argued on behalf of the petitioner before the Division Bench were lost sight of by that learned judges while delivering their judgment
As already stated these points have been summarised by the petitioner in that paragraph 18 of the petition
The points raised in that paragraph may or may not be good points but if these points were advanced on behalf of the petitioner the learned Judges of the Division Bench owed it to themselves to come to a decision on those points
In the arguments before us it is not denied on behalf of the State that the points which have been summarised in paragraph 18 of the petition were canvassed by the defence Counsel at the hearing of the appeal and having regard to that fact I am inclined to hold that the petitioner is entitled to a certificate under Article 134 1 c of the Constitution on that ground
This is the ground on which the certificate was granted
This Court has had occasion to consider the grounds on which a certificate can be granted under Art134 1 c of the Constitution
hi Haripada Dey vs The State of West Bengal1 it was held that the High Court has no jurisdiction to grant 1   641
50 a certificate under article 134 1 c on a mere question of fact and it is not justified in passing on such a question to the Supreme Court for further consideration thus converting the Supreme Court into a Court of Appeal on facts
Bbagwati J there said Whatover may have been the misgiving 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 1341 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
In a later case Sidheswar Granguly vs The State of West Bengal1 the High Court of Calcutta granted a certificate on the ground that because of the summary dismissal of the appeal the appellant did not have the satisfaction of having been fully heard and it was held by this Court that was no ground for the grant of a certificate and that no certificate should be granted on a mere question of fact
In that case Sinha J as he then was said  This Court has repeatedly called the attention of the High Courts to the legal pos ition that under article 134 1 c of the Constitution it is not a case of granting leave but of certifying that the case is a fit one for appeal to this Court
Certifying is a strong word and therefore it has been repeatedly pointed out that a High Court is in error in granting a certificate on a mere question of fact and that the High Court is not justified in passing on an appeal for determination by this Court when there are no 1  51 complexities of law involved in the case requiring the authoritative interpretation by this Court
 In the present case the High Court has granted leave on the mere ground that there was delay in delivering the judgment of the court and it may have led to the result that some of the points urged by counsel were lost sight of while delivering judgment
Those points were all questions of fact
The High Court observed that the questions which were sought to be raised in the petition might or might not be good points but if those points were advanced the judges  owed it to themselves to come to a decision on those points
After the pronouncements of this Court in two judgments it is some what surprising that the High Court should have granted a certificate on the mere ground of delay in pronouncing a judgment and the equally slender ground that some of the questions which were raised were forgotten at the time of the judgment
If the appellant did have any such real grievance it was open to him to apply to this Court under article  136 but the mere ground of delay is not a ground on which the High Court can certify a case to be fit one for appeal to this Court
In Banarsi Parshad vs Kashi Krishna Narain 1 and Radhakrishna Ayyar vs Swaminatha Ayyer2 the Privy Council in construing section 109 c of the Code of Civil Procedure pointed out that under that clause for a certificate to be granted a case had to be of great or wide public importance
A mere ground of delay in giving a judgment does not in our opinion fall within the words fit one for appeal to the Supreme Court even if it is felt by the High Court that the delay might have led to omission to consider arguments on questions of fact and law
It is not open to a High Court to give certificates of fitness under this clause merely 1 1900 LR 28 1 A 11 2 1920 LR 48 I A 31
52 because in its opinion the judgment of the court delivered by another Bench suffers from an error in regard to certain facts
In our view the certificate granted by the Calcutta High Court was not a proper certificate and must be cancelled
It was then urged that special leave should be granted under article 136 and the appeal be beard as the record had been printed and on that material if leave were to be granted the appeal could be properly argued
We have heard counsel for the appellant and we see no reason to grant special leave in this case
The appeal is therefore dismissed
Appeal dismissed


Summary:
The appellant
was tried by the Sessions judge and acquitted of the charge of murder
On appeal the High Court convicted him and sentenced him to imprisonment for life
The appellant applied for and was granted a certificate under Art 134 1 c of the Constitution for appeal to the Supreme Court on the ground that there was unusual delay in delivering the judgment of the High Court and that the judg ment failed to deal with certain questions of fact which were raised at the hearing of the appeal
Held that the certificate granted by the High Court was not a proper certificate
The mere ground of delay in giving judgment did not fall within the words fit one for appeal to the Supreme Court in article 134 1 c
The points raised in the appeal before the High Court were questions of fact and the High Court was not justified in passing such questions on to the Supreme Court for further consideration thus converting the Supreme Court into a court of appeal on facts
Haripada Dev vs State of
West Bengal  and Sidheswar Ganguly vs State of West Bengal 1958 section C R 749 followed
Banaswmi Parshed vs Kashi Krishna Narain 1900 L R 23 1
A I I and Radhakrishna Ayyar vs Swaminathna Ayyar 1920 L R 48 I A 31 referred to