CHIDDU Vs. STATE

JUDGEMENT

(1.) THIS is an application under Article 134 (o) of the Constitution of India for a certificate that my decision in Cri. Revn. No. 172 of 1950, The State v. Madan is a fib one for appeal to the Supreme Court.

(2.) THE facts of the case are stated in my order dated 8-3-1961 disposing of the Criminal Revision. I do not propose to repeat them here. By that order I reversed the decision of the Sessions Judge Gwalior and restored the order of the City Magistrate Lashkar directing that certain ornaments seized by the Police from the applicant and suspected to have been stolen shall be held at the disposal of the Government. As the person entitled to the property was not known, the Magistrate issued a proclamation, under Section 523 (2), Criminal P. C. No person came forward to establish his claim to the property within six months from the date of the proclamation. The Magistrate, therefore, proceeded under Section 521 and on the evidence produced by the applicant and the State, came to the conclusion that the petitioner Madan had failed to show that the ornaments were legally acquired by him. He, therefore, ordered that the property should be held at the disposal of the Government. In appeal the learned Sessions Judge directed the return of the ornaments to Madan. He held that the police had no evidence which really connected Madan with any theft; that the property was not claimed by any one even after the issue of proclamation under Section 523 of the Code and that as the property was found in possession of Madan it must be presumed under Section 110, Evidence Act that he was the owner of the property. I agreed with the finding of the City Magistrate that the petitioner had failed to show that the property was legally acquired by him and took the view that as the petitioner's possession was not shown to be lawful no presumption could be drawn in his favour under Section 110, Evidence Act.

(3.) THE present application is not the first of its kind to be made to this Court. A division Bench of this Court has recently disposed of an application for a certificate under Article 134 (C ). In the matter of State v. Rajkumar Singh, (Cri. Misc. No. 159 of 1951 Indore Bench) it has been pointed out by the Division Bench that except in cases falling under Sub-clauses (a) and (b) of Art, 134 (1) in all other criminal matters the Constitution of India intends that the High Courts in the respective States in the territory of India should normally and ordinarily be the final Courts of appeal and that in determining the question whether a case is a fit one for appeal the principles and conditions which the Supreme Court would itself follow in exercising its discretion in granting special leave under Article 136 should be borne in mind. It was also suggested therein that in the construction of Article 134 (c) guidance may be taken from the authoritative judicial interpretation put on the expression "provided the said High Court declares that the case is a fit one for such appeal' used in Clause 41 of the Letters Patent of Caloutta. Bombay and Madras High Courts. The learned Chief Justice observed in that case The High Court when considering an application for the grant of a certificate under Article 134 (1), (c), does not Bit in judgment upon its decision. It has however been authorised to grant a certificate of fitness to appeal to the Supreme Court in any case that it might consider appropriate. I am clear that it would not be proper for any Judge to attempt to define in what oases or Classen of cases a certificate of fitness should be granted and thus to restrict the wide generality of the language advisable used by the Cramer of the Constitution. He went on to say that a Court would not be justified in granting a certificate of fitness for appeal even if its decision involved a substantial question of law unless it was satisfied that it had resulted in grave and substantial injustice.