JONATHAN SAMUEL SOLOMON Vs. STATE OF MAHARASHTRA
HIGH COURT OF BOMBAY
JONATHAN SAMUEL SOLOMON
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(1.) WHEN the judgment in Criminal Appeal No. 1303 of 1970 was pronounced by me on 13th September, 1972 : " (Reported in 1973 Cri LJ 1848), Mr. Andhyarujina, the learned Counsel appearing for the respondent-complainant made an oral application immediately thereafter for certificate granting leave to appeal to the Supreme Court against the said judgment under Article 134 (1) (c) of the Constitution certifying that the case was a fit one for appeal to the Supreme Court. Mr. P. S. Nadkarni, learned advocate appearing for the appellant raised a preliminary, objection on that day against such entertainment of such application as, according to him, such applications can be entertained only by the Division Bench and as such I had no jurisdiction to entertain the same. Though the practice followed so far supported Mr. Nadkarni's contention, the point raised was found to be not free from doubt. The hearing of his oral application was, therefore, adjourned by me till today to enable the learned advocates to look into the matter and assist me in disposing of the said objection. The point has been now argued today threadbare.
(2.) NOW, right of appeal to the Supreme Court from any judgment, final order or sentence in criminal proceedings of a High Court is conferred on a litigant by Article 134 of the Constitution. This right of appeal, however, is not available as a matter of course. It can be availed of by any litigant only if any one of the conditions enumerated in Clauses (a) to (c) of Article 134 (1) is satisfied. The case of the respondent is admittedly not covered by Clause (a) or (b ). He. therefore, prayed for certificate under Clause (c) of the said sub-article There is however, no specific provision in the Constitution, requiring such leave petitions to be heard by the same Judge or Judges, though as a matter of practice, ordinarily such leave petitions are placed before the same Bench or a Bench of Judges one of whom was party to the impugned Judgment. This Article, however, refers to the judgment or order of the High Court and does not make any distinction between judgments delivered by a Division Bench or a Single Bench.
(3.) THE proviso to Sub-Article (1) of Article 134, of course, subjects such right of appeal to such provisions as may be made under Clause (1) of Article 145. The said Article 145 empowers the Supreme Court to frame Rules in this behalf, which has no relevance to the applications for certificate made before the High Court.;
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