134. Appellate jurisdiction of Supreme Court in regard to criminal matters.

—(1) 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;
or

(b) has withdrawn for trial before itself any case from any court subordinate to its authority and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 death; or

(c) certifies under article 134A that the case is a fit one for appeal to the Supreme Court:

Provided that an appeal under sub-clause (c) shall lie subject to such provisions as may be made
in that behalf under clause (1) of article 145 and to such conditions as the High Court may
establish or require.

(2) Parliament may by law confer on the Supreme Court any further powers to entertain and hear
appeals from any judgment, final order or sentence in a criminal proceeding of a High Court in
the territory of India subject to such conditions and limitations as may be specified in such law.

Acquittal and right to appeal

The word “acquittal” does not mean that the trial must have ended in a complete acquittal but
would also include the case where an accused has been acquitted of the charge of murder and has
been convicted of a lesser offence. In that view of the matter where the High Court, on appeal,
reverses the decision, it amounts to reversing of an order of acquittal and the accused is entitled
to a certificate under article 134(1) as of right. When trial court’s conclusion was arrived at
abjuring the unimpeachable and reliable prosecution evidence on speculative reasons and
unreasonable grounds while High Court’s conclusion was based on evolution of evidence which
was not erroneous, illegal or perverse and an independent analysis of the evidence also fully
established the prosecution case against the appellants, there is no reason, much less compelling
reason, to disagree with the High Court’s findings of guilt against the appellants in reversal of
the trial court’s conclusion.
If on the same evidence two views are reasonably possible, and the court below takes a view in
favour of the accused, the Appellate Court will not set aside the order of acquittal unless it finds
the findings to be perverse, highly unreasonable, based on no evidence on record or made in
ignorance of relevant evidence on record or for other such reasons.

High Court’s power to withdraw cases

Article 134(1)(b) cannot be construed to widen the existing restricted power of a High Court to
withdraw for trial cases from lower courts to itself.

Power to criticize lower courts

While exercising appellate powers, courts have to be very careful while making disparaging
remarks against persons or authorities not present or represented in the court to explain and
defend themselves, those against whom enough evidence is not on record or those whose
conduct need not be commented upon for deciding the case in hand. Judicial pronouncements
should be judicial in nature and should not normally depart from sobriety, moderation and
reserve.

High Court’s power to grant certificate

The High Court has no jurisdiction to grant a certificate under article 134(1)(c) in a case where
admittedly in its opinion the question involved is one of fact, in spite of a full and fair trial not
having been vouchsafed to the accused. No High Court has the jurisdiction to pass on mere
questions of fact for further consideration of the Supreme Court under the relevant articles of the
Constitution. In such cases the High Court should refuse to give a certificate under article 134(1)
(c) and leave the parties, in case it finds itself helpless to redress the grievance to approach the
Supreme Court by invoking its special jurisdiction under article 136(1). No doubt the Supreme
Court has the power to interfere in a case involving a question of fact, for instance, if there has
been a gross miscarriage of justice or a departure from legal procedure such as vitiates the whole
trial, the Supreme Court will intervene; and it will also intervene if even the findings of fact are
such as are shocking to its judicial conscience and grant in such cases special leave to appeal
under article 136(1). That is, however, a special jurisdiction which it can exercise under article
136(1), but no High Court can arrogate that function to itself and pass on a matter to it involving
purely questions of fact. And if the High Court does so, then it can be taken to have exercised its
discretion wrongly and the certificate purporting to have been granted under article 134(1)(c)
will be considered as no certificate and of no avail to the accused.

The first two sub-clauses of article 134(1) deal with special situations and provide for an appeal
as of right. The third sub-clause permits an appeal in cases which the High Court certifies as fit
for appeal. The sub-clause does not state the conditions necessary for such certification. No rules
under article 145 regulating generally the practice and procedure of 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 ‘certifies’ it is clear that such power must be exercised with
great circumspection and only in a case which is really fit for appeal. It is impossible by a
formula to indicate the precise limits of such discretion, but the question has arisen on a number
of occasions before the Supreme Court and some of the leading views may be considered: The
discretion is to be exercised on judicial principles. Before granting a certificate under sub-clause
(c), the High Court must be satisfied that it involves some substantial question of law or
principle. The certificate itself should give an indication what substantial question of law or
principle is involved in the appeal to bring it within the scope of article 134(1)(c). Where the
Supreme Court finds that the certificate is not in compliance with the requirements of article
134(1)(c), it may decline to accept the certificate. There are instances where however after
declining to accept the certificate it may allow the appellant to apply under article 136 in proper
cases.

Article 134(1)(a) and (b) lay down two conditions which confer a right of appeal to the Supreme
Court. That in itself indicates that normally there is no right of appeal in any other type of case.
The only exception is (c) where a right is conferred (“an appeal ‘shall’ lie”) if the High Court
“certifies” that the case is a fit one for appeal. The word “certifies” is a strong word. It indicates
that the High Court must bring its mind to bear on the question and as in all cases of judicial
orders, it must be apparent on the face of the order itself. The Supreme Court must be in a
position to know first that the High Court has applied its mind to the matter and not acted
mechanically and, secondly, exactly what the High Court’s difficulty is and exactly what points
of importance the High Court feels the Supreme Court ought to settle. It is not enough to say
“leave to appeal is given” and no more because an appeal is not allowed in the ordinary way
when conditions (a) and (b) are not satisfied. Accordingly merely to say that leave is given and
no more is tantamount to saying that the High Court will usurp the functions of the Constitution-
makers and allow the whole case to be opened up despite the fact that the Constitution has
specifically limited the normal right of appeal to sub-articles (a) and (b) and has left (c) to meet
extraordinary cases.

‘Case’-meaning of

“Case” as used in article 134(1)(b) and (c) means the case of each individual person. That would
be so even if the trial had been by the High Court itself but it is even more so on appeal because,
though several persons may join in presenting a common memorandum of appeal (if the Rules of
the Court in question so permit), the appeal of each forms a separate “case” for those purposes.
That is obvious from the fact that every person who is convicted need not appeal nor need
several convicts appeal at the same time under a joint memorandum; and if it were necessary to
send up the “case” as a whole, it would be necessary to join even those who were acquitted so
that the “case” (in that sense) could be reviewed in its entirety. That clearly is not the meaning of
the word “case” in the context of article 134(1).

Article 134 deals with the appellate powers of the Supreme Court in criminal cases where a
judgment, final order or sentence has been delivered by a High Court. An appeal to the Supreme
Court shall lie if the High Court: (a) has reversed an order of acquittal of an accused person and
sentenced him to death, or (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 death [Ram Kumar v. State of Madhya Pradesh, AIR 1975 SC 1026: (1975) 3 SCC 815:
(1975) 3 SCR 519; Pedda Narayana v. State of Uttar Pradesh, AIR 1975 SC 1252: (1975) 4 SCC
153: (1975) Supp SCR 840)].

Under article 134(1)(c) an appeal against a decision of a High Court can be filed before the
Supreme Court if the High Court certifies under article 134A that the case is a fit one for appeal
to the Supreme Court. But the proviso to sub-clause (c) lays down that such appeals shall be
subject to rules made by the Supreme Court and to such other conditions as the High Court may
decide. The grant of the certificate by the High Court for appeals in criminal cases to the
Supreme Court depends on an evaluation whether the case involves a substantial question of law
and its interpretation on which the Supreme Court is urgently required to pronounce its opinion
and whether it would result in grave injustice to the accused if he is denied the opportunity of an
appeal to the Supreme Court.
Clause (2) of article 134 leaves it to the Parliament to confer by law any further powers on the
Supreme Court to hear appeals in criminal cases.

Source: Subhash Kashyap: Constitutional Law of India