# HARIPADA DEY v. THE STATE OF WEST BENGAL AND ANOTHER

- **Citation:** [1956] 1 S.C.R. 639
- **Court:** Supreme Court of India
- **Decided:** 1956-09-05
- **Case number:** Criminal Appeal No. 86 of 1954
- **Bench:** Bhagwati, Jafer Imam, Gov1NDA MENON
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/haripada-dey-v-the-state-of-west-bengal-and-another-1252
- **Pages:** 5

## Headnote

Constitution tJf India, Art. 184(1)(c)-Jurisdiction of High
Court-Certificate on mere question of fact no certificate at allOonstitution of India, Art. 186(1)-Special Jurisdiction of the
Supreme Court to intervene on mere question of facts to be invoked
-High Oourt not to arrogate that fimction to itself-EvidenceProsecution not to be blamed for the lacuna to addiu:e evidence by
defence.
The High Court has no jurisdiction to grant cettifica.te under
Art. 134(l)(c) of the Constitution on mere question of fa.ct, e.nd is
not justified in passing on such question to the Supreme Court for
further consideration, thus converting the Supreme Court into .a.
Court of Appeal on facts.
No doubt the Supreme Court, in ce.se of gross misca.rrie.ge of
justice or departure from legal procedure such e.s vitiates the whole
trial, possesses the power a.nd ha.s special jurisdiction to intervene
under Art. 136(1) of the Constitution e.nd e.lso if the findings of fa.ct
were such e.'s were shocking to judicial conscience; but no High Court
can arrogate that function to itself because it finds itself helpless to
redress the grievance.
Certificate granted on mere question of fa.ct
would be no certificate e.t a.II; High Court should refuse sueh certificates under Art. 134(1)(c) e.nd should e.sk the parties to approach
the Supreme Court to invoke its special jurisdiction under Art.
'
136(1) of the Constitution.
The accused e.nd not the prosecution is to be blamed for the
lacuna. in the defence in not adducing evidence in support of his
contentions, which if forthcoming would he.ve demolished the ce.se
of the prosecution.
Narsingh and another v. The State of Uttar Pradesh, ([1955) 1
S.C.R. 238), Baladirz cf Others v. The State of Uttar Pradesh, (A.I.R.
1956 S.C. 181) and Sunder Singh v. The State of Uttar Pradesh,
(A.I.R. 1956 S.C. 411), referred to.

## Text

S.C.R.
SUPREME COURT REPORTS
HARIPADA DEY
v.
THE STATE OF WEST BENGAL
AND ANOTHER.
639
[BHAGWATI, JAFER IMAM and Gov1NDA MENON JJ.]
Constitution tJf India, Art. 184(1)(c)-Jurisdiction of High
Court-Certificate on mere question of fact no certificate at allOonstitution of India, Art. 186(1)-Special Jurisdiction of the
Supreme Court to intervene on mere question of facts to be invoked
-High Oourt not to arrogate that fimction to itself-EvidenceProsecution not to be blamed for the lacuna to addiu:e evidence by
defence.
The High Court has no jurisdiction to grant cettifica.te under
Art. 134(l)(c) of the Constitution on mere question of fa.ct, e.nd is
not justified in passing on such question to the Supreme Court for
further consideration, thus converting the Supreme Court into .a.
Court of Appeal on facts.
No doubt the Supreme Court, in ce.se of gross misca.rrie.ge of
justice or departure from legal procedure such e.s vitiates the whole
trial, possesses the power a.nd ha.s special jurisdiction to intervene
under Art. 136(1) of the Constitution e.nd e.lso if the findings of fa.ct
were such e.'s were shocking to judicial conscience; but no High Court
can arrogate that function to itself because it finds itself helpless to
redress the grievance.
Certificate granted on mere question of fa.ct
would be no certificate e.t a.II; High Court should refuse sueh certificates under Art. 134(1)(c) e.nd should e.sk the parties to approach
the Supreme Court to invoke its special jurisdiction under Art.
'
136(1) of the Constitution.
The accused e.nd not the prosecution is to be blamed for the
lacuna. in the defence in not adducing evidence in support of his
contentions, which if forthcoming would he.ve demolished the ce.se
of the prosecution.
Narsingh and another v. The State of Uttar Pradesh, ([1955) 1
S.C.R. 238), Baladirz cf Others v. The State of Uttar Pradesh, (A.I.R.
1956 S.C. 181) and Sunder Singh v. The State of Uttar Pradesh,
(A.I.R. 1956 S.C. 411), referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 86 of 1954.
Appeal under Article 134(l)(c) of the Constitution of India from the judgment and order dated the
27th May 1954 of the Calcutta High Court in Criminal Appeal No. 158 of 1953.
1956
September 5
1956
Haripada Dey
v.
The State of
H'e.st Btngal
u nd anotll e-r'
640
SUPREME COURT REPORTS
(1956]
Sukumar Ghose for the appellant.
D. N. Mukeijee for P. K. Bose for respondent
No. l.
K. L. Arora for respondent No. 2.
1956. September 5.
The Judgment of the Court
was delivered by
BHAGWATI J.-The Appellant was charged under
Section 411, Indian Penal Code with dishonestly
receiving or retaining in his possession one Hillman
Car number WED 4514 bearing Engine and Chassis
No. All 78482 WSO knowing or having reason to
believe the same to be stolen property. The learned
Presidency Magistrate, Calcutta, convicted him of
this offence and sentenced him to rigorous imprisonment for 2 years. The Appellant took an appeal to
the High Court at .Calcutta and a Division Bench of
the High Court constituted by Mr. Justice Jyoti
Prakash Mitter and Mr. Justice Sisir Kumar Sen dismissed the appeal confirming the conviction and
sentence passed upon him. The Appellant filed a petition for leave to appeal to this Court and that petition according to what we ara told is the practice
obtaining in the Calcutta High Court came before a
Division Bench differently constituted-a Bench constituted by the learned Chief Justice and Mr. Justice
S. C. Lahiri.
This Bench allowed the petition and
ordered that a certificate for leave to appeal under
article 134(l)(c) of the Constitution may be drawn
up. In an elaborate judgment the learned Chief
Justice observed:
"In my view a certificate of fitness ought to issue
in this case, although the question involved is one of
fact".
After discussing in detail the various circumstances
in the case which did not meet with his approval,
he wound up by saying:
"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
-
S.C.R.
SUPREME COURT REPORTS
641
his case further considered and since such further
consideration can only be given by the Supreme
Court, I would grant the certificate prayed for".
Contrary to what we had in the previous case before us, viz., Criminal Appeal No. 146 of 1956 (Orn
Prakash v. The State of Uttar Pradesh), where no reasons were given as to why the Conrt exercised its
discretion in granting the certifieate, in this judgment
we have an elaborate discussion as to why such discretion was being exercised by the Court. The reasoning, however, does not. appeal to us.
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 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( I) ( 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. We no doubt possess that power and in proper cases have exercised it
under article 136(1).
If there has been a gross miscarriage of justice or a departure from legal procedure
such as vitiates the whole trial we would certainly
intervene and we would also intervene if even the
findings of fact were such as were shocking to our
judicial conscienca and grnnt in such cases special
leave to appeal under :trticle 136(1). That is, however, a special jurisdiction which we can exercise
under article 136(1), but no High Court can arrogate
that function to itself and pass on to us a matter
which in its view is purely one involving questions of
fact, because it finds itself helpless to redress the
grievance. In surh a case, the High Court should
SS
7956
Harij>ada Dey
v.
Tl1c Stat·: of
lVest Bengal
a11d auofht'r
1956
Haripada Dey
v.
The State of
West Bengal
and another
BhagwatiJ.
642
SUPREME COURT REPORTS
[1956]
refuse to give a certificate under article 134(1)(c) and
ask the parties to approach us invoking our special
jurisdiction under article 136(1) of the Constitution.
We are, therefore, of the opinion that the discretion
that was so elaborately exercised by the Calcutta
High Court in this case was wrongly exercised. The
certificate purporting to have been granted under article 134(1)(c) was no certificate at all and it does not
avail the appellant liefore us.
Following our decisions in Narsingh and another v.
The State of Uttar Pradesh('), Baladin & Others v. The
State of Uttar Pradesh(') and Sunder Singh v. The State
of Uttar Pradesh('), Mr. Sukumar Ghose for the appellant urged that this was a fit case where we should
exercise our discretion and grant the appellant Rpecial
leave to appeal under article 136(1) of the Constitution. He pointed out that eviin though the appellant
had led no evidence in defence there were on the record of the case certain documents which if taken as
proved would have been sufficient to demolish the
prosecution case. These were commented upon by the
learned Chief Justice in the judgment which he
delivered when certificate for leave to appeal under
article 134(1)( c) was granted by him. These documents,
it was urged, went to show that sometime before the
car in question was stolen, an application had been
made by the appellant to the police authorities in
Chandarnagore for registration of Hillman Minx 1951
Model car which bore the same number on the engine,
chassis and tin-plate as the car in question and on that
application, investigation had been made by the A.S.I.
police, who made his report, the contents of which
would go to· establish the case which was put forwaro
by the appellant in his defence. It is no doubt true
that the prosecution has got to prove its case beyond
reasonable doubt and the accused need not open his
mouth nor lead any evidence. If the prosecution succeeds in establishing its case, the conviction would
follow, but if the prosecution fails to discharge the
burden which lies upon it to prove the charge which
(1) [1955) 1 S.0.R. 238.
(2) A.I.R. 1956 S.0.181.
(S) A.I.R. 1956 S.0. 411.
L
•
S.C.R.
SUPREME COURT REPORTS
643
has been framed against the accused he is entitled to
an acquittal. In this case both the Courts below held
that the prosecution had proved its case by the evidence of the witnesses who were called including the
motor expert, who on applying chemicals discovered
on the engine the very number which was the number
on the stolen car. On this state of the evidence, it
was the bounden duty of the appellant if he wanted
to prove his defence to adduce evidence in support
of his contentions and if he did not do so, he had only
to thank himself for it. The prosecution could not
be blamed for that lacuna and if both the Courts
below went on the record as it stood and came to the
conclusion, finding it as a fact, that the prosecution
had established its case, it could not be urged, as was
sought to be done in the judgment delivered by the
learned Chief Justice in the petition for leave to appeal to this Court, that that evidence, if forthcoming,
would have demolished the case of the prosecution.
If those who represented the appellant did not take
counsel within themselves and put forward the defence as they should have done, there was no blame
on the prosecution nor on. the learned Presidency
Magistrate who tried the case and came to the conclusion adverse to the appellant. Whatever sentiment
appears to have been imported in the matter has been
simply out of place and even if one may have a lurking suspicion at the back of his mind and might feel
that there has not been a full and fair trial as ought
to have been held, that is no justification for going
behind the concurrent findings of fact reached by both
the Courts below to the effect that the prosecution
had succeeded in establishing the guilt of the appellant. We see nothing in this case to warrant an interference under article 136(1) of the Constitution. This
application will, therefore, be rejected and the appeal
will stand dismissed. Bail bond cancelled and the
appellant to surrender his bail.
1956
Haripada Dey
v.
The State of
West Bengal
and another
Bhagu•ati J.