GOPINATHAN NAIR Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS is a petition under Art. 134 (1) (e) of the constitution for a certificate that the case is a fit one for appeal to the supreme Court. We may straightaway observe that this is not a fit case for appeal under Art. 134 (1) (e ).

(2.) BUT, when the petition came up for hearing on a previous occasion, we felt that the case might come within the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, Central Act 28 of 1970. And the petition was adjourned at the request of the counsel of the petitioners; and it has come up now for further consideration. Article 134 (1) (a) reads: "an appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India if the High Court (a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death. " And S. 2 (a) of Act 28 of 1970 reads:

(3.) IN this connection, our attention has been drawn to the decision of the Supreme Court in Tarachand Damu Sutar v. The State of maharashtra (AIR. 1962 S. C. 130) dealing with Art. 134 (1) (a) of the constitution, which, as already pointed out, is in the same language as S. 2 (a)of Act 28 of 1970. The five learned judges who constituted the Bench have agreed (though there has been a divergence of opinion on the merits of the case) that the word "acquittal" in Art. 134 (1) (a) does not mean that the trial must have ended in a complete acquittal but would also include the case where an accused person has been acquitted of the charge of murder and has been convicted of a lesser offence. During the course of the discussion, we find the supreme Court referring to the decision of the Privy Council in Kishan Singh v. Emperor (AIR. 1928 PC. 254), where Their Lordships of the Privy Council have considered S. 439 (4) of the Code of Criminal Procedure, After referring to this decision, the Supreme Court has applied the same principle to Art. 134 (1) (a)of the Constitution, which interpretation must apply equally to S. 2 (a) of Act 28 of 1970. Therefore, the first petitioner is entitled to appeal, as of right, to the Supreme Court.