SIDHESWAR GANGULY Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This appeal on a certificate granted by the High Court at Calcutta, under art. 134 (1) (c) of the Constitution, is directed against the order of a Division Bench of that Court, dated February 15, 1955, summarily dismissing an appeal from the judgment and order dated January 22, 1955, passed by the learned Second Additional Sessions Judge of Alipore, accepting the unanimous verdict of guilty returned by the jury, holding the appellant guilty under S. 376 of the Indian Penal Code, for having committed rape on a young girl, named Sudharani Roy, said to be about 14-15 years of age. The learned trial Judge, accepting the unanimous verdict of the jury and agreeing with it, imposed a "deterrent punishment" of rigorous imprisonment for 5 years, in view of the fact that he was in loco parentis to the large number of girls who were the inmates of the Nari Kalyan Ashram of which the appellant had been the secretary for a pretty long time.

(2.) The learned counsel for the State of West Bengal raised a preliminary objection that the certificate granted by the Bench of the Calcutta High Court Presided over by the learned Chief Justice, was bad on the face of the judgment given by him while granting the certificate. We have, therefore, first to examine whether the preliminary objection is sound. As already stated, the Division Bench before which the appeal came up for admission, summarily dismissed it without giving any reasons. Apparently the Bench was not satisfied that there was any error or law or mis-direction in the learned Sessions Judge charge to the jury which had returned a unanimous verdict of guilty against the appellant. On March 7, 1955, the Bench consisting of Chakravartty, C. J., and S. C. Lahiri J., passed the order to the effect that having heard the argument on behalf of the applicant for the certificate of fitness for the proposed appeal to this Court on March 4, they had the opportunity of reading through the charge delivered by the learned trial judge, and that they had "come to feel that before the application is disposed of, we should see the depositions in full." According, they directed the records of the original trial to be called for and placed before them. The case, therefore, stood adjourned till the arrival of the records. The matter was heard again on March 17, and on March 18, the learned Chief Justice delivered a judgment which appears at pages 220 to 231 of the record. It is a full judgment giving the facts and history of the case and the evidence adduced on behalf of the prosecution. The learned Chief Justice, in the course of his very elaborate judgment, observed that the "learned Judge delivered an exhaustive charge to the jury from which he does not appear to have omitted any part of the evidence which was of any materiality whatsoever. The jury appear to have applied their minds critically . . . ." Having examined the grounds taken in the appeal as presented to the High Court, he made the following observations:

(3.) This Court has repeatedly called the attention of the High Courts to the legal position that under Art. 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 complexities of law involved in the case, requiring an authoritative interpretation by this Court. On the face of the judgment of the learned Chief Justice, the leave granted cannot be sustained, vide the case of Haripada Dey vs. State of West Bengal, (1956) SCR 639 (A), and a number of decisions of this Court referred to therein. In view of the those authorities of this Court, it is clear that the certificate granted by the High Court is not a proper one. The preliminary objection is, therefore, upheld. But the appeal having been placed before this Court, we have to satisfy ourselves whether there are any grounds on which this Court would have granted special leave to appeal under Art. 136 of the Constitution.