SABASTIAO FRANCISCO XAVIER DOS REMEDIOS MENTEIRO BARDEZ-GOA Vs. STATE

JUDGEMENT

(1.) The petitioner-Father Sebastiao Francisco Xavier dos Remedios Monteiro - was convicted by the learned Judicial Magistrate, Mapusa, for having contravened the order made by the Lt. Governor dated 19th June, 1965, under S. 3 (2) (c) of the Foreigners Act, 1946 . This order required the petitioner to leave India after a certain period. The petitioner refused to leave India, and, therefore, he was tried and sentenced to undergo simple imprisonment for 30 days and to pay a fine of Rs. 50/-, and, in default of payment of fine, to undergo, in addition, simple imprisonment for 5 days. The petitioner lodged an appeal in the Court of Session. This appeal was dismissed by the learned Sessions Judge on 2nd February, 1966. The petitioner then moved this Court in revision. This petition was also dismissed by an order of this Court dated 7th August, 1967. The petitioner thereafter moved this Court under Article 134 (1) (c) of the Constitution. The material facts are stated at length in this order. I shall therefore refer only to such facts as are necessary for disposing of the present petition under this Article.

(2.) The 'Geneva Convention Relative To The Protection of Civilian Persons In Time of War of August 12th, 1949', was ratified by the President on the 16th October, 1950, and came into force in India on the 9th May 1951. The Geneva Conventions Act, 1960 (Act VI of 1960), was enacted by Parliament to give legislative effect to this Convention, which is set out in the Fourth Schedule appended to the Act. The Act also gives legislative effect to three other Conventions set out in the First, Second and Third Schedules with which we are not concerned in this case. The main findings recorded by this Court in revision were (1) that the Convention set out in the Fourth Schedule ceased to apply to the territories of Goa, Daman and Diu with effect from 27th March, 1962, when they became integrally and constitutionally a part of India by virtue of the Constitution (Twelfth Amendment), 1962, enacted on that day. India then ceased to be an "Occupying Power" and the said territories ceased to be an "Occupied Territory" for the purpose of Convention; (2) that the petitioner was a protected person for the purposes of rights and duties under the Convention but this protection he lost after the Convention ceased to apply; (3) that the Convention does not create permanent rights in favour of protected persons; and (4) that the Convention being inapplicable, a Sovereign State - like India- can expel the petitioner who is a foreigner.

(3.) Article 134(1)(c) of the Constitution provides that an appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court if the High Court certifies that the case is a fit one for appeal to the Supreme Court. This Article confers a right on the party aggrieved to apply for a certificate and it is for the High Court to consider whether it should be granted. It is necessary to refer to certain decisions on the scope of this Article before considering the arguments at the Bar. It is well settled that the Supreme Court is not an ordinary Court of Criminal Appeal. The discretion under this Article is a judicial discretion to be exercised sparingly and with care. This discretion has to be exercised after considering what difficult or substantial questions of law or principle are involved which require an authoritative interpretation by the Supreme Court. The Article does not confer an unlimited jurisdiction on the High Courts. It applies in an extraordinary case. The High Courts should not overlook that there is a further remedy by way of special leave which may be invoked when the certificate is refused. 'Nar Singh V/s. State of U.P., 1954 AIR(SC) 457: 'Sunder Singh V/s. State of U.P., 1956 AIR(SC) 411; 'Baladin V/s. State of U.P., 1956 AIR(SC) 181,'Khushal Rao V/s. State of Bombay, 1958 AIR(SC) 22; and 'Babu V/s. State of U.P., 1965 AIR(SC) 1467. It is also well settled that the practice of the Supreme Court is not to interfere with the concurrent findings of fact except under exceptional circumstances. 'Major E. G. Barsay V/s. State of Bombay, 1961 AIR(SC) 1762). The Constitution intends that the High Courts should normally and ordinarily be a final Court of appeal. The mere fact that the petitioner raises a point which may be a point of law does not Justify his claim for a certificate. ('W. H. King V/s. Emperor, 1950 AIR(Bom) 380).