Expansions of Criminal Appellate Jurisdiction under Article 134(A)

The provisions of Article 134 confer a limited criminal appellate jurisdiction on

the Supreme Court. The Supreme Court hears appeals only in exceptional
criminal cases where justice demands interference by the apex Court to cope
with them. Appeal to Supreme Court in criminal matters lie on a certificate
granted by the concerned High Court. In Baladin v. State of U.P AIR 1956
SC 181, it was stated that where the Supreme Court declines to accept the
certificate under Article 134 (1) (c), it may permit the appellant to apply under
Article 136 in proper cases.

Under Article 134 (2), Parliament is authorized to enlarge the criminal

appellate jurisdiction and as such Parliament has enacted the Supreme Court
(Enlargement of Criminal Appellate Jurisdiction) Act, 1970, further
authorizing the Supreme Court to hear appeals from a High Court in following
situations:

If the High Court has on appeal reversed an order of acquittal of an accused

and sentenced him to imprisonment for life or for a period of not less than 10
years.

(ii) The High Court has withdrawn from trial before itself any case from
subordinate Court and has sentenced accused to imprisonment for life or for a
period of not less than 10 years.

Under Art 134 (1) (c) the Supreme Court has not been made an ordinary Court
of Criminal Appeal and the High Courts should not by the certificates attempt
to create a jurisdiction which was not intended.

The High Courts should, therefore, exercise their discretion sparingly and with
care. The certificate should not be granted to afford another hearing on facts
unless there is some error of a fundamental character. The power gives a
discretion but discretion must always be exercised on judicial principles.
That test need not necessarily be applied to a criminal case but it is
clear that mere questions of fact should not be referred for
decision.

The constitution does not contemplate a criminal jurisdiction for the Supreme
Court except in those two case covered by clauses (a) and (b) which provide
appeals as of right. The High Court before it certifies the case must be satisfied
that it involves some substantial question of law or principle.

In a criminal appeal, the High Court can consider the case on law and fact and
if the High Court entertains doubt about the guilt of the accused, it can always
give the benefit to the accused there and then. It is not necessary that the High
Court should first convict him and then get him a grant of certificate so that
Supreme Court, if it thought fit, may reverse the decision. Thus, a case
involving something more than mere appreciation of evidence is contemplated
by the Constitution for the grant of a certificate. The High Court should not
overlook that there is further remedy by way of special eave which may be
invoked in cases where the certificate is refused.

In State of Jammu & Kashmir v. Ganga Singh, AIR 1960 SC 356, the
Supreme Court has commented on Article 132 as follows: "The principle
underlying the Article is that the final authority of interpreting the
Constitution must rest with the Supreme Court. With that object the Article is
freed from other limitations imposed under Articles 133 and 134 and the right
of the widest amplitude is allowed irrespective of the nature of the proceedings
in a case involving only a substantial question of law as to the interpretation of
the Constitution"
The constitutional scheme makes it clear that there is no general right to
appeal in criminal matters apart from those as laid down in Article 134(1)(a)
and (b). Article 134(c) gives the power to the High Court to certify cases which
can be appealed, which must involve a substantial question of law, and not
merely application of facts or evidence. In pursuance of the power vested
under Article 134(2) the Supreme Court (Enlargement Of Criminal Appellate
Jurisdiction) Act, 1970 was promulgated.

The Section 2 of the Act states that without prejudice to the powers conferred
on the Supreme Court by clause (1)of Article 134 of the Constitution, an appeal
lie to the Supreme Court from any judgment, final order of 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 imprisonment for life or to imprisonment for a period of not
less than ten years;

(b) Has withdrawn for trial before itself any case from any court subordinate
to its authority and has in such trial convicted the accused person and
sentenced him to imprisonment for life or to imprisonment for a period of not
less than ten years.

The Constituent Assembly Debates show that the reason for bringing death
sentence cases of concurrent conviction, under Article 136 was that, if right of
appeal is given in all death sentence cases, the Supreme Court would be
flooded with appeals and strength of judges may not be sufficient to deal with
such a situation. It may require more number of judges for which more money
was to be spent. When the Constituent Assembly enacted Article 134, Section
367(5) of the Criminal Procedure Code, 1898 required the courts to state
special reasons for avoiding death penalty. Section 367(5) of the Criminal
Procedure Code, 1898 read as follows:

In 1955, by amendment to Section 367(5), the requirement of giving reasons

for not imposing death penalty was deleted. The present state of law is
contained in Section 354(3) of the Criminal Procedure Code, 1973 which
requires the courts to adduce reasons for imposing death penalty.

The Indian Penal Code also shows trends of changes in prescribing death
sentence, that too as an alternative penalty only in a few sections.

In Mithu v. State of Punjab (1983) 2 SCC 277, a five-Judge Constitution

Bench of the Supreme Court struck down Section 303 IPC as unconstitutional
since there was no alternative penalty provided by the section.
Section 307 which provides for compulsory death sentence in certain cases,
though not struck down till now, yet it will also have the same fate like Section
303.
Thus, only seven sections in IPC provide for death sentence, that too as
alternative penalty. But much of the cases of death sentence arise only under
Section 302.
In Bachan Singh v. State of Punjab (1980) 2 SCC 684, the Supreme
Court while upholding the constitutional validity of death sentence by a
majority of 4 to 1, held that death sentence can be imposed only in rarest of
rare cases.

Justice Jagannatha Shetty in his concurring judgment

in Triveniben v. State of Gujarat (1989) 1 SCC 678, held that Bachan
,

Singh case has narrowly tailored the sentencing discretion of courts as to

death sentence and death sentence is now awarded only in miniscule number
of cases.
The principle underlying the Articles is that the final authority of interpreting
the Constitution must rest with the Supreme Court. With that object the
Article is freed from other limitations imposed under Article 133 and 134 and
the right of the widest amplitude is allowed irrespective of the nature of the
proceedings in a case involving only a substantial question of law as to
interpretation of the Constitution.

The appellate jurisdiction of the Supreme Court under the Article 133 and 134
can be invoked against only final orders, no such limitation is imposed upon
under Article 136 and may be exercised as well as the discretion of the court
even against interlocutory order. However, in the case of Engineering
Mazdoor Sabha vs Hind Cycles Ltd, AIR 1963 SC 874, it was held that
the limitation imposed on Article 136 is imposed by the court itself in its
discretion and are not prescribed by any provision. Hence the power under
Article 136 is not affected by Article 132, 133 and 134.

The whole scheme of Appellate jurisdiction of the Supreme Court clearly

indicated that questions relating to the interpretation of the Constitution are
placed in a special category irrespective of the nature of the proceedings in
which they may arise and right of appeal of the widest amplitude is allowed in
cases involving such questions.