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TMI Blog1980 (2) TMI 271X X X X Extracts X X X X X X X X Extracts X X X X ..... a murder charge by the High Court in appeal but the brother of the deceased-not the State nor even the first informant-moved this Court under Article 136, got leave and had his appeal heard which resulted in the petitioner (accused) being convicted and sentenced to the life term under Section 302 I.P.C. The present contention urged to upset that conviction, is that the leave to appeal and the subsequent proceedings were unconstitutional as violative of Article 21 the procedural magna carta protective of life and liberty-and, therefore, the sentence must fail. This plea, faintly presented before this Court when the appeal was heard, was briefly considered and rightly rejected. This second battle, doomed to fail like the first, demands of us a condensed ratiocination in negation of the contention hopefully urged by Sri Mridul, counsel for the petitioner. 2. Two inter-laced issues arise and they turn on (a) the content and character of Article 136 vis-a-vis Article 21, and (b) the locus standi of a Good Samaritan, if we may use that expression to refer to a public-spirited citizen seeking to trigger the legal process to see that justice is done to his neighbour. 3. Article 21, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of a stranger enabling him to challenge an acquittal by the High Court. The Criminal Procedure Code does not create such a right pi appeal and, speaking generally, a right of appeal is the creature of statute. So it is submitted that before the court may grant special leave under Article 136 there must be an antecedent right of appeal, absent which the question of leave by the court does not arise. The argument is ingenious but inference is fallacious. 5. An insightful understanding of the sweep, scope and character of Article 136 will easily dispel the dichotomy between an antecedent right of appeal and a subsequent grant of leave, which is the cornerstone of the contention of the petitioner. 6. The jural reach and plural range of the judicial process to remove injustice in a given society is a sure index of the versatile genius of law-in-action as a delivery system of social justice. By this standard, our constitutional order vests in the summit court a jurisdiction to do justice, at once omnipresent and omnipotent but controlled and guided by that refined yet flexible censor called judicial discretion. This nidus of power and process, which master-minds the broad observa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of discretion that remains. 8. It is manifest that Article 136 is of composite structure, is power-cum-procedure-power in that it vests jurisdiction in the Supreme Court, and procedure in that it spells a mode of hearing. It obligates the exercise of judicial discretion and the mode of hearing so characteristic of the court process. In short, there is an inbuilt prescription of power and procedure in terms of Article 136 which meets the demand of Article 21. 9. We may eye the issue slightly differently. If Article 21 is telescoped into Article 136, the conclusion follows that fair procedure is imprinted on the special leave that the court may grant or refuse. When a motion is made for leave to appeal against an acquittal, this Court appreciates the gravity of the peril to personal liberty involved in that proceeding. It is fair to assume that while considering the petition under Article 136 the court will pay attention to the question of liberty, the person who seeks such leave from the court, his motive and his locus standi and the weighty factors which persuade the court to grant special leave. When this conspectus of processual circumstances and criteria play upon the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gher functionaries may result in refusal to take a case to this Court under Article 136 even though the justice of the lis may well justify it. While the criminal law should not be used as a weapon in personal vendettas between private individuals , as Lord Shawcross once wrote, in the absence of an independent prosecution authority easily accessible to every citizen, a wider connotation of the expression 'standing' is necessary for Article 136 to further its mission. There are jurisdictions in which private individuals-not the State alone-may institute criminal proceedings. The Law Reform Commission (Australia) in its Discussion Paper No. 4 on Access to Courts-I Standing: Public Interest Suits wrote: The general rule, at the present time, is that anyone may commence proceedings and prosecute in the magistrate's court. The argument for retention of that right arises at either end of the spectrum-the great cases and the frequent petty cases. The great cases are those touching government itself-a Watergate or a Poulson. However independent they may legally be any public official, police or prosecuting authority, must be subject to some government supervision and be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th a public connotation may unloose a flood of litigation which may overwhelm the judges is misplaced because public resort to court to suppress public mischief is a tribute to the justice system. This view is echoed by the Australian Law Reforms Commission. The crucial significance of access jurisprudence has been best expressed by Cappelletti: The right of effective access to justice has emerged with the new social rights. Indeed, it is of paramount importance among these new rights since, clearly, the enjoyment of traditional as well as new social rights presupposes mechanisms for their effective protection. Such protection, moreover, is best assured by a workable remedy within the framework of the judicial system. Effective access to justice can thus be seen as the most basic requirement-the most basic 'human right'-of a system which purports to guarantee legal rights. 15. We are thus satisfied that the bogey of busybodies blackmailing adversaries through frivolous invocation of Article 136 is chimerical. Access to Justice to every bona fide seeker is a democratic dimension of remedial jurisprudence even as public interest litigation, class action. pro bono ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neral importance which calls for decision by the Supreme Court. In a criminal proceeding, disposed of by a judgment or final order or sentence of a High Court, besides cases where the High Court has convicted the accused and sentenced him to death either on reversing in appeal an order of acquittal by the trial court or on the case being withdrawn from the subordinate court to itself for trial, an appeal lies to the Supreme Court where the High Court certifies that the case is fit one for appeal to the Supreme Court . Article 135 confers jurisdiction and power on the Supreme Court with respect to any matter to which Article 133 or Article 134 does not apply if such jurisdiction and power were exercisable by the Federal Court immediately before the commencement of the constitution. Article 136 declares: 136. (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. Then follow other provisions to which we need not refer. 20. Plainly, the jurisdiction conferred by Art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity; if possible it secured that the forces which the sovereign power in the State can command shall be utilised to prevent the mischief or to punish anyone who is guilty of it. Crimes were defined by Black-stone as the breach and violation of public rights and duties which affect the whole community. A crime, therefore, is an act deemed by law to be harmful to society in general even though its immediate victim is an individual. Murder injures primarily the particular victim, but its blatant disregard of human life puts it beyond a matter of mere compensation between the murderer and the victim's family. Those who commit such acts are proceeded against by the State in order that, if convicted, they may be punished. The notion of crime as a threat to the whole community, is the material counterpart of the formal rule that the State alone is master of a criminal prosecution. In a criminal proceeding the State stands forward as prosecutor on public grounds. No private person has a direct interest in a criminal proceeding, although exception may be made by the statute in certain cases. It is common knowledge that a criminal prosecution is not intended for the private satisfacti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justice, where the Government fails to act, and the party aggrieved has a strong feeling that the matter requires further consideration, should not, in our view, be left to the mercy of the Government. To inspire and maintain confidence in the administration of justice, that limited right of appeal with leave given to a private party should be retained, and should embrace cases initiated on private complaint or otherwise at the instance of an aggrieved person. However, when the Criminal Procedure Code, 1973 was enacted the statute, as we have seen, confined the right to appeal, in the case of private parties to a complainant. This is, as it were, a material indication of the policy of the law. 25. Having regard to the fundamental nature of a criminal proceeding to which reference has been made, it is now appropriate to examine the considerations which the Court should keep in mind when entertaining a petition for special leave to appeal by a private party against an order of acquittal. From what has been said, it is plain that 'access to the jurisdiction under Article 136 cannot be permitted to a private party who seeks to employ the judicial process for the satisfaction of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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