9911796707
|
Home
Issues Involved:
1. Whether a party can file a written application for a certificate for appeal to the Supreme Court after failing to make an oral application immediately after the judgment, decree, final order, or sentence. Detailed Analysis: 1. Background and Referral: The Division Bench referred the question to the Full Bench regarding whether a party who fails to make an oral application immediately after the judgment, decree, final order, or sentence, could file a written application for a certificate for appeal to the Supreme Court at any later time. The referral was necessitated by the introduction of Article 134A through the Constitution (Forty-Fourth Amendment) Act, 1979, which came into force on 1-8-1979, and the corresponding amendment of Rule 3 of Chapter XIX of the Karnataka High Court Rules. 2. Historical Context and Article 134A: Before the Forty-Fourth Amendment, the procedure for granting certificates by the High Court under Articles 132, 133, and 134 was regulated by High Court rules, some allowing written applications and others permitting oral applications immediately after judgment. Article 134A, introduced by the amendment, prescribes the procedure for granting certificates for appeals to the Supreme Court, either by the High Court's suo motu action or on an oral application made immediately after the judgment. 3. Contentions of the Petitioners: The petitioners argued that since Article 134A does not explicitly bar written applications and given that Article 132 of the Limitation Act, 1963, prescribes a 60-day limitation for such applications, an aggrieved party should be allowed to file a written application for a certificate. 4. Constitutional Provision and Implied Bar: The Full Bench emphasized that Article 134A now regulates the procedure for granting certificates, which was previously managed by High Court rules. Citing the Supreme Court's decision in Indira Nehru Gandhi v. Raj Narain, the Bench held that if the Constitution specifies a procedure, performing the act in any other manner is impliedly barred. Therefore, since Article 134A provides for oral applications immediately after judgment, written applications are impliedly barred. 5. Objective of Article 134A: Article 134A aims to avoid delay by requiring immediate oral applications, allowing judges to decide on the certificate while the case facts are fresh. The legislative intent, as stated in the Objects and Reasons of the Forty-Fifth Amendment Bill, 1978, and the speech by Shri Shanti Bhushan, was to eliminate delays and ensure prompt access to the Supreme Court. 6. Conflict with Limitation Act: While Article 132 of the Limitation Act prescribes a 60-day period for written applications, the constitutional provision prevails in case of conflict. The Government indicated steps to delete Article 132 of the Limitation Act, reinforcing that Article 134A does not contemplate written applications. Aggrieved parties can still seek special leave to appeal under Article 136 of the Constitution if they miss the oral application opportunity. 7. Interpretation of "Immediately": The term "immediately" in Article 134A implies urgency, meaning as soon as circumstances permit. The Bench referred to various judicial interpretations, concluding that "immediately" means without unreasonable delay, allowing the application to be made then and there after judgment. 8. Timing of Determination: Article 134A requires the determination regarding the grant of a certificate to be made "as soon as may be" after judgment, indicating urgency but not as stringent as "immediately." The determination should ideally be concluded immediately after the oral application or within the shortest possible time to avoid unnecessary delays and arguments. Conclusion: The Full Bench answered that a party who fails to make an oral application immediately after the judgment, decree, final order, or sentence cannot file a written application for a certificate for appeal to the Supreme Court at a subsequent stage. The reference was answered accordingly.
|
