BABU AND 3 OTHERS versus STATE OF UTIAR PRADESH

Citation: [1965] 2 S.C.R. 771 · Decided: 19-01-1965 · Supreme Court of India · Bench: K.N. WANCHOO · Disposal: Dismissed

Cited by 3 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
c 
D 
BABU AND 3 OTHERS 
v. 
STATE OF UTIAR PRADESH 
January 19, 1965 
[K. N. WANCHOO, M. HIDAYATULLAH, J. C. SHAH, 
J. R. MUDHOLKAR AND S. M. SIKRI JJ.) 
Division Bench-Difference between two judges refe"ed to a t_hird 
Judg~Thirtl Judge how far free to come to his own conclusion-Code 
of Criminal Procedure, (Act 5 of 1898), s. 429. 
Certificate of fitness-High Court when should grant certificate in 
criminal cases-Constitution of India Art. 134(1) (c). 
The appellants were convicted by the Sessions Judge under s. 312 
Pead with s. 34 of the Indian Penal Code. Two of them were sentenced 
to death and two to imprisonment for life. Their appeal before the High 
Court was heard by a Division Bench of two judges, one of whom was 
for allowing it, the other for dismissing it. The third Judge to whom 
it was referred dismissed tho appeal. The appellants applied for a certi-
ficate of fitness to appeal to the Supreme Court. 
The certificate was 
gtanted mainly on the ground that the third Judge who heard the appeal 
hid omitted to discuss at length the question of the genuineness of the 
lint information report. 
In the Supreme Court objection was taken on behalf of the State 
that the certificate of fitness granted by the High Court was incompetent 
.E 
in view of the previous dicisions of this Court in Haripada Dey v. State 
of West Bengal & Anr. [1956] S.C.R. 639, Nar Singh & Anr. v. State of 
Uttar Pradesh, [1955] I S.C.R. 238, Sunder Singh v. State of Uttar Pra-
desh, A.I.R. (1956) S.C. 411 and Khusha!rai v. State of Bombay, [1958] 
S.C.R. 552. 
The appellants urged that these cases be reconsidered. 
A 
plea for the reduction of the death sentences was also made. 
HELD: (i) Section 429 of the Criminal Procedure Code contem· 
F 
plates that it is for the third Judge to decide on what points he shall 
bear arguments, if any, and that postulates that he is completely free in 
resolving the difference as he thinks fit. 
It was sufficient for the third 
Judge to have said on the question of the First Information Report that 
be did not consider it necessary to decide the point but if it was necessary 
he was in agreement with the Judge on the Division Bench who was for 
dismissing the appeal. 
There was therefore a proper decision by the 
third Judge and the certificate could not be based on the omission to 
G 
&scus.. the doubts about the First Information Report. [771 F-H] 
H 
(ii) The Constitution does not contemplate a criminal jurisdiction 
for this court except in these cases covered by clauses (a) and (b) of 
Ari. 134 which provide for appeals as of right. The High Court before 
it certifies the case must be satisfied that it involves some substantial 
l':tion of law or principle._ 
On!~ a case involviug something. m~ 
mere appreciation of evidence ts contemplate~ by the Constituti':"' 
for the grant of a certificate. What that may be will depend on the cir-
cumstances of the case but the High Court should be slow to certify 
CllllOS. 
The High Court. should not .overlook tha~ there _is 
a further 
remedy by way of special leave which may be mvoked 1n cases where 
772 
SUPREME COUllT REPORTS 
[1965] 2 S.C.R 
the certificate is refused. The present certificate did not comply with the 
A 
requirements of Art. J34(1)(c) as explained above. [780 C-P; 781 Al 
Case law considered. 
(iii) That whenever two Judges in appeal differ on the question of 
sentence, death sentence should not be imposed without compelling rea-
sons cannot be raised to the pedestal of a rule, for that would leave the 
sentence to the determination of one Judge to the exclusion of the other. 
Each case must be decided on its own facts and a sentence of imprison-
ment for life can only be substituted if the facts justify that the extreme 
penalty of Jaw should not be imposed. [781 E-P] 
Ka/awati and Another v. State of Himacha/ Pradesh, [1953] S.C.R. 
546 and Pandurang, Tukia and Bhillia v. State of Hyderabad, [19551 
1 S.C.R. 1083, referred to. 
CRIMINAL APPELLATE JUllISDICTION: Criminal Appeal No. 
179 of 1964. 
Appeal from the judgment and order dated August 21, 1963, 
of the Allahabad High Court in Criminal Appeals Nos. 2271 ancl 
2272of1962. 
B 
c 
Nur-ud-din Ahmad and J. P. Gayal, for the appellants. 
D 
0. P. Rana, for the respondent. 
The Judgment of the Court was delivered by 
Hidayatullah, J.-This is an appeal by certificate against the 
judgment of the High Court of Allahabad dated May 24, 1963 · 
by which the conviction of and sente

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