ASHWIN CHANDULAL SHAH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) TWO of my learned colleagues have differed on the question as to whether or not a certificate of fitness under Article 134(1) (c) of the Constitution of India should issue in the present case. S. H. Sheth J. was of the view that four substantial questions of law were involved in the case which were required to be decided by the Supreme Court and that therefore a certificate of fitness was requi- red to be issued. A. N. Surti J. was of the view that there was no substance in this petition and that the case was not a fit one to be certified. It is for the resolution of this difference that the matter has been placed before me. ... ... ... .. . ... ...

(2.) Before I enter upon the consideration of the case on merits it would be convenient to refer to the well-settled legal position as regards the scope and ambit of the High Courts jurisdiction for certifying a case as a fit one for appeal to the Supreme Court under Article 134(1)(c). The provisions of the said sub-article fell for interpretation before a Bench of five learned Judges of the Supreme Court in BABU V. STATE OF U. P. A. I. R. 1965 S. C. 1947. Hidayatullah J. as he then was speaking for the Court observed that the said sub-clause permits an appeal in cases which the High Court certifies as fit for appeal. It does not however prescribe the conditions necessary for such certification and no rules under Article 145 regulating generally the practice and procedure of the Supreme Court for the grant of certificate by the High Court have been framed. The power which is granted is no doubt discretionary but in view of the word certifles it is clear that such power must he exercised with great circumspection and only in a case which is really fit for appeal although it is impossible by a formula to indicate the precise limits of such discretion. Reference was then made to the previous decisions of the Supreme Court bearing on the said question and in particular to the decision in HARIPADA DEV V. STATE OF WEST BENGAL A. 1. R. 1956 S. C. 757 wherein it was observed as under :

(3.) The aforesaid observations in this leading decision clearly define the limits of the jurisdiction of the High Court on a petition under Article 134(J)(c). They lay down in unmistakable terms that under Article 134 the Supreme Court has not been made an ordinary Court of criminal appeal and that it is not open to the High Courts by issuing certificates to attempt to create a jurisdiction which was not intended. The discretionary powers conferred on the High Courts under the said sub-article have to be exercised sparingly and with care. Those powers are not unlimited and they are required to be exercised on sound judicial principles. Broadly speaking there are two classes of cases in which a certificate might issue. First where the High Court is satisfied that the case involves some substantial question of law or principle; such question however need not necessarily be of general public importance. Secondly where another hearing on facts is necessary because there is some error - S of a fundamental character. However in no case the High Court should certify a case which involves mere questions of fact and nothing more than mere appreciation of evidence. There is always a further remedy by way of special leave in such cases which may be invoked even if the certificate is refused.