134.

APPELLATE JURISDICTION OF SUPREME COURT IN REGARD TO

CRIMINAL MATTERS :

Dr.K.Sivananda Kumar

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(b) has withdrawn for trial before itself any case from any court subordinate to its authority and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

Background of Article 134

In the Draft Constitution, initially there was no specific provision conferring for criminal
appellate jurisdiction on the Supreme Court. This was pointed out and criticized by some of the
learned members of the Constituent Assembly when Draft Article 110 was discussed and
debated. Pandit Thakurdas Bhargava argued in the Constituent Assembly that those persons who
are condemned to death cannot be recalled to life if the wrong sentence is carried out. Life is
much more precious than any amount of civil rights. It was Prof. Shibbanlal Saksena, who
vehemently argued for a right of appeal in death sentence cases. Prof. Shibbanlal Saksena spoke
in the Constituent Assembly as follows:

"I am not able to find any provision which guarantees to the citizen who has been
condemned to death or whose civil liberty has been taken away that he shall have an inherent
right of going in appeal to the highest tribunal - the Supreme Court. I have seen many cases
where people were condemned to death. I had the misfortune during the 1942 movement to
live in a condemned cell for about twenty-six months and about thirty-seven men were
hanged in my presence. There were eight cells for condemned prisoners in one block and I


Asst. Professor, School of Law, Christ University, Bengaluru. E-mail : siva.faculty@gmail.com, Ph.No.
9441715270.
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 occupied one of them. So I was privileged to be with the condemned prisoners, to meet them
and to talk and to live with them. Out of the thirty-seven men, seven were acquitted, ten had
their sentences reduced to transportation for life and the rest twenty were hanged. I am sure,
Sir, that many who were acquitted were real murderers, many who were sentenced to
transportation for life were real murderers and many who were hanged were innocent. At
least I was convinced in the case of seven persons that they were perfectly innocent. Still
they were hanged. I do not say that the Supreme Court will always know by some divine
inspiration what is true. That is why I stand for our abolition of capital punishment
altogether. But, so long as we do not abolish the death penalty, I feel that the man who is
condemned to death must have the right of appeal to the highest tribunal. This must be
inherent right and not limited by any conditions. I am fully prepared to accept the advice of
Shri Alladi on other subjects. I am prepared to limit the functions of the Supreme Court in
hearing appeals in civil cases but, I do wish that the men who are condemned to death should
have the inherent right of appeal to the Supreme Court and no man should be hanged unless
the Supreme Court has confirmed their death sentence. The other day I was hearing at
another place, my learned friend Dr Bakshi Tekchand, when he told us that when he was a
Judge of the Lahore High Court, about three hundred cases of murder went to him in appeal
every year. Probably the combined Punjab was very turbulent, considering the number of
murders there, but the East Punjab and other Provinces are not so violent. I do not think that
in the whole of India that the number of murder appeals will exceed seven or eight hundred. I
do feel that the people who are condemned to death should have the inherent right of appeal
to the Supreme Court and must have the satisfaction that their cases have been heard by the
highest tribunal in the country. I have seen people who are very poor, not being able to
appeal as they cannot afford to pay the counsel. I see that Article 112 says that the Supreme
Court may grant special leave to appeal from any judgment, but it will be open to people who
are wealthy, who can move heaven and earth, but the common people who have no money
and who are poor will not be able to avail themselves of the benefits of this section.
Therefore, in the name of those persons who are condemned to death and who though
innocent were hanged in my presence, I appeal to the House that either in this article or in
any subsequent article there must be made a provision that those who are condemned to
death shall have an inherent right of appeal to the Supreme Court."

Shri Frank Anthony also supported the stand taken by Prof. Saksena and gave his views as
follows:

"I confess I cannot understand why the Law Minister and those who think like him feel
that this kind of justice must be done to the civil litigants in cases involving property of
20,000 rupees and more, while on the other hand, they say, that where a man has been
sentenced to death or has been given transportation for life, it does not involve a denial of
liberty or justice sufficient to give him an automatic right of appeal. My friends may say that
Article 112 gives a certain amount of discretion to the Supreme Court to allow any appeals in
respect of criminal matters, but it is a matter of discretion and it is also qualified by the
condition that it must involve a substantial question of law."

Shri Frank Anthony dismissed the argument of other members who opposed the idea of absolute
right of appeal in death sentence cases that, then the Supreme Court will have to have scores of
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judges. Dr P.K. Sen also supported the view to have a right of appeal to the Supreme Court in all
cases of death sentence which was also supported by Dr P.S. Deshmukh. Pandit Lakshmi Kantha
Maitra queried the Constituent Assembly that whether or not we are going to place human life
much below the value of the property. If for property you would give a constitutional right of
appeal, would you deny that in cases where death sentence is imposed?

Even the learned members who opposed the right of appeals in death sentence cases opposed it
on the view that more judges will be required which will be evident from the speech of Shri
K.M. Munshi who said that conceding a right of criminal appeal to the Supreme Court would
mean not less than 100 judges of the Supreme Court and even if it is a question of death
sentence, it would require a very large number. The same was the view taken by Shri Krishna
Chandra Sharma. Dr Ambedkar in his speech supported abolition of death sentence itself.

Thereafter, the Constituent Assembly decided to introduce a separate article providing for
criminal appellate jurisdiction to the Supreme Court and new Article 111-A with various
amendments by many members of the Constituent Assembly were introduced. The Constituent
Assembly made a compromise and provided for limited right of appeal in criminal cases only
when the High Court punishes a person with death sentence for the first time and also conferred
power on Parliament to enlarge the jurisdiction under which the Act, 1970 was passed by
Parliament. When Article 111-A was debated, Prof. Shibbanlal Saksena reiterated the stand
taken by him when Draft Article 110 was debated, Prof. Saksena spoke as follows:

"Mr President, the amendment moved by Dr Ambedkar really makes criminal appeals to
be on a par with civil appeals. I argued the other day that every man who is sentenced to
death should have the right to have his case reviewed by the Supreme Court before the
sentence is carried out. I remember the difficulties of the poor men under sentence of death. I
have lived in cells with condemned men and I know their feelings. Hardly, one among a
score of such people could afford to take their appeal to the Privy Council. It is stated here
that if the High Court certifies that the case is fit one for appeal to the Supreme Court, the
Supreme Court shall have power to hear it. It would not come to the Supreme Court
automatically. I feel that a man who is condemned to death but who may not have the means
to file an appeal or to get the necessary certificates should also have his appeal heard by the
Supreme Court as of right. Nobody should be hanged unless his case is reviewed by the
Supreme Court. According to the present amendment of Dr Ambedkar, only about 100 out of
1000 murder appeals i.e. about 10 per cent will have the right to be heard by the Supreme
Court if all the accused are able to bear the expenses thereof. So, the richest men alone will
get the right of appeal to the Supreme Court and poor men will be hanged without any
hearing by the Supreme Court. Poor men cannot thus get justice even after this amendment is
passed. I therefore think that although the amendment is a compromise, the poor condemned
prisoners will not get justice even under it."

A reading of the Constituent Assembly Debates shows that those who opposed the right of
appeal in criminal cases opposed it only on the ground of requirement of more judges which has
lost its value because of the change in the position of law as stated above. Therefore, it is
submitted that there should be a right of appeal in all cases of death sentence even from
concurrent findings.
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Criminal Appeals under Constitution

The Criminal appellate jurisdiction of the Supreme Court, generally speaking, is invoked in the
following ways:

(i) As constitutional right of appeal under Article 134(1) of the Constitution of India.
(ii) By special leave under Article 136(1) of the Constitution of India.
(iii) As statutory right of appeal under Section 2 of the Supreme Court (Enlargement of
Criminal Appellate Jurisdiction) Act, 1970 (hereinafter referred to as the Act, 1970).

Under Article 134(1) there could be an appeal to the Supreme Court from any judgment, final
order or sentence in a criminal proceeding of a High Court, if the High Court

(a) has, on appeal, reversed an order of acquittal and awarded sentence of death; or
(b) has withdrawn for trial before itself any case and has in such trial convicted and
sentenced the accused to death; or
(c) certified under Article 134(1)(a) that the case is a fit one for appeal to the Supreme
Court.

Article 134(2) of the Constitution of India reads as follows:

"134. (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."

It was in pursuance of this provision, that Parliament enacted the Supreme Court (Enlargement
of Criminal Appellate Jurisdiction) Act, 1970.

While sub-clauses (a) and (b) of Article 134(1) of the Constitution of India confer upon the
accused a right of appeal in certain circumstances, clause (c) confers upon the High Court a
discretion to grant a certificate to the accused to appeal in cases not falling under sub-clauses (a)
and (b). The certificate is granted only where there has been an infringement of the essential
principles of justice or there is a substantial question of law or principle involved. The Supreme
Court has also held that the conditions prerequisite for the exercise of the discretionary power to
grant a certificate under Article 134(1)(c) cannot be precisely formulated but it should be
exercised sparingly and not to convert the Supreme Court into an ordinary court of criminal
appeal.

It is pertinent to note that the accused may not have the right of appeal even in circumstances
mentioned in clauses (a) and (b) of Article 134(1) if the High Court sentences him to life
imprisonment or imprisonment of 10 or more years. In such case, his appeal would be admitted
in special and exceptional circumstances only either under Article 134(1)(c) or under Article 136
of the Constitution.

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The Parliament enacted the Act, 1970 and provided a right of appeal to an accused person whose
acquittal is reversed by the High Court and sentenced to 10 or more years or imprisonment for
life. Thus, it can be seen that the common thread that runs through Articles 134(1)(a) and (b) and
the Act, 1970 is that appeal in criminal cases to the Supreme Court becomes a right only if the
conviction is for the first time by the High Court. But, in view of the change in the position of
law with regard to the imposition of death sentence and enactment of Section 433-A in the
Criminal Procedure Code, it is just and proper that all cases of death sentence and all cases of life
imprisonment which fall under Section 433-A should also be provided with a right of appeal.

Supreme Court's discretionary jurisdiction in death sentence and life imprisonment cases

There is no right of appeal in criminal cases which do not fall either under Article 134(1) or
under the Act, 1970. Such cases fall under the discretionary jurisdiction of the Supreme Court
under Article 136(1) of the Constitution of India which reads as follows:

"136. Special leave to appeal by the Supreme Court—(1) Notwithstanding anything in

this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any
judgment, decree, determination, sentence or order in any cause or matter passed or made by
any court or tribunal in the territory of India." (emphasis supplied)

(a) Death sentence cases

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:

"367. (5) If the accused is convicted of an offence punishable with death, and the court
sentences him to any punishment other than death, the court shall in its judgment state the
reason why sentence of death was not passed:"

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.3

The Indian Penal Code also shows trends of changes in prescribing death sentence, that too as an
alternative penalty only in a few sections. They are Sections 120-B, 121, 132, 194, 302, 305, 307
(in certain cases) and 396. In Mithu v. State of Punjab (1983 AIR 473, 1983 SCR (2) 690) 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.
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In Bachan Singh v. State of Punjab (1982 AIR 1325, 1983 SCR (1) 145) 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 Sarkaria laid down the ratio
for the majority as follows:

"A real and abiding concern for the dignity of human life postulates resistance to taking a
life through law's instrumentality. That ought not to be done save in the rarest of rare cases
when the alternative option is unquestionably foreclosed."

Justice Jagannatha Shetty in his concurring judgment in Triveniben v. State of Gujarat (1989
AIR 1335, 1989 SCR (1) 509) 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.

Thus, there is both a legislative and judicial restriction in the imposition of the capital
punishment which was not there when Article 134 was enacted by the founding fathers. In view
of these developments, the apprehension of the founding fathers that a right of appeal in death
sentence cases may flood the Supreme Court with appeals has become infructuous. After the
watershed decision of the Supreme Court in Maneka Gandhi v.Union of India( 1978 AIR 597,
1978 SCR (2) 621) it is just and proper that there should be a right of appeal to the Supreme
Court in all cases where the soul of a human being is at stake. In Kehar Singh v. Union of India
(1989 AIR 653) Chief Justice Pathak, speaking for a unanimous Constitution Bench of the
Supreme Court while dealing with the mercy power of the President under Article 72, made the
following observations which apply on all fours to the subject under discussion:

"To any civilized society, there can be no attributes more important than the life and
personal liberty of its members. That is evident from the paramount position given by the
courts to Article 21 of the Constitution. These twin attributes enjoy a fundamental
ascendancy over all other attributes of the political and social order, and consequently, the
Legislature, the Executive, and the Judiciary are more sensitive to them than to the other
attributes of daily existence. The deprivation of personal liberty and the threat of the
deprivation of life by the action of the State is in most civilized societies regarded seriously
and, recourse, either under express constitutional provision or through legislative enactment
is provided to the judicial organ. But, the fallibility of human judgment being undeniable
even in the most trained mind, a mind resourced by a harvest of experience, it has been
considered appropriate that in the matter of life and personal liberty, the protection should be
extended by entrusting power further to some high authority to scrutinize the validity of the
threatened denial of life or the threatened or continued denial of personal liberty." (emphasis
supplied)

(b) Life imprisonment cases

The Act, 1970 was passed enlarging the jurisdiction of the Supreme Court and it provides that if
life imprisonment or sentence of 10 or more years is awarded for the first time by the High
Court, then statutory appeal lies to the Supreme Court. Here also, there is no right of appeal if the
finding is concurrent. In 1978, there was an amendment to the Criminal Procedure Code by the
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introduction of Section 433-A which makes a convict to undergo compulsory 14 years'
imprisonment in two circumstances. They are (1) when a court imposes death sentence which is
commuted to imprisonment for life, and (2) when life imprisonment is awarded for an offence
which carries death as alternative penalty. When Parliament enacted the Act, 1970, there was no
statutory restriction with regard to premature release of convicted prisoners. Due to the
enactment of Section 433-A in Cr.P.C. in 1978, the power of the Government to release a person
on premature release by remission etc., is restricted. Due to the enactment of this section, it is
just and proper that all cases of life imprisonment also should have the right of appeal to the
Supreme Court.

Conclusion:

Appeal lies as of right under Article 134(1) of the Constitution and under the Act, 1970 whereas
it is discretionary under Article 136(1) of the Constitution. The discretionary jurisdiction of the
Supreme Court under Article 136 in criminal cases extends to all matters except those which fall
either under Article 134(1) or under the Act, 1970.

***

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