Author Name:   krishnaa

It is a case study on criminal appellate jurisdiction of the Supreme Court in reference to Kailas & Ors. v/s State of Maharashtra and Taluka P.S...

Appellate Jurisdiction of Supreme Court Of India:
The appellate jurisdiction of the Supreme Court can be invoked by a certificate granted by the High Court concerned under Article 132(1), 133(1) or 134 of the Constitution in respect of any judgement, decree or final order of a High Court in both civil and criminal cases, involving substantial questions of law as to the interpretation of the Constitution.

Appeals also lie to the Supreme Court in civil matters if the High Court concerned certifies: (a) that the case involves a substantial question of law of general importance, and

(b) that, in the opinion of the High Court, the said question needs to be decided by the Supreme Court. In criminal cases, an appeal lies to the Supreme Court if the High Court (a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death or to imprisonment for life or for a period of not less than 10 years, or (b) has withdrawn for trial before itself any case from any Court subordinate to its authority and has in such trial convicted the accused and sentenced him to death or to imprisonment for life or for a period of not less than 10 years, or (c) certified that the case is a fit one for appeal to the Supreme Court. Parliament is authorised to confer on the Supreme Court any further powers to entertain and hear appeals from any judgement, final order or sentence in a criminal proceeding of a High Court.

The Supreme Court has also a very wide appellate jurisdiction over all Courts and Tribunals in India in as much as it may, in its discretion, grant special leave to appeal under Article 136 of the Constitution 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.

Appeals permitted under the Constitution
§ Article 132 of the Constitution of India, 1950 provides for an appeal to the Supreme Court from any judgment, decree or final order of a High Court, whether in civil, criminal or other proceedings, if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution.

§ Article 133 of the Constitution of India, 1950 provides for an appeal to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court if the High Court certifies that the case involves a substantial question of law of general importance and in its opinion the said question needs to be decided by the Supreme Court.

§ Article 134 of the Constitution of India, 1950 provides for an appeal to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court if (a) it 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 it and has in such trial convicted the accused and sentenced him to death or (c) it certifies that the case is a fit one for appeal to the Supreme Court.

Appeal by Special Leave
§ Article 136 of the Constitution of India, 1950 provides that the Supreme Court may in its discretion grant special leave to appeal from any judgment, decree, determination, sentence or order in any case or matter passed or made by any Court or tribunal in the territory of India except the Court or tribunal constituted by or under any law relating to armed forces.

Statutory Appeals
§ Section 379 of the Code of Criminal Procedure, 1973 read with Section 2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970, as amended by the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Amendment Act, 1972, provides for an appeal to the Supreme Court from any judgment, final order or sentence in a criminal proceedings of a High Court, if the High Court (a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death or to imprisonment for life or to imprisonment for a period of not less than ten years; (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 imprisonment for life or to imprisonment for a period of not less than ten years.

§ Section 130E of the Customs Act, 1962 provides for an appeal to the Supreme Court from any judgment of the High Court on a reference made under Section 130, in any case which the High Court certifies to be a fit one for appeal to the Supreme Court, or any order passed by the Appellate Tribunal relating, amongst other things, to the determination of any question having relation to the rate of custom duty or the value of goods for the purpose of assessment.

§ Section 35L of the Central Excise and Salt Act, 1944 provides for an appeal to the Supreme Court from any judgment of the High Court delivered on a reference made under Section 35G, in any case which the High Court certifies to be a fit one for appeal to the Supreme Court, or any order passed by the Appellate Tribunal relating, amongst other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purpose of assessment.

§ Section 23 of the Consumer Protection Act, 1986 provides for an appeal to the Supreme Court from an order made by the National Commission, entertaining complaints where the value of the goods or services and compensation, if any, claimed exceeds Rupees One Crore.

§ Section 19(1)(b) of the Contempt of Courts Act, 1971 provides for an appeal to the Supreme Court, as of right, from any order or decision of Division Bench of a High Court in exercise of its jurisdiction to punish for contempt.

§ Section 38 of the Advocates Act, 1961 provides for an appeal to the Supreme Court from an order made by the Disciplinary Committee of the Bar Council of India under Section 36 or 37 of the said Act.

§ Section 116-A of the Representation of People Act, 1951 provides for an appeal to the Supreme Court on any question, whether of law or fact, from every order passed by a High Court under Section 98 or Section 99 of the said Act.

§ Section 10 of the Special Court (Trial of offences relating to Transactions in Securities) Act, 1992 provides for an appeal to the Supreme Court from any judgment, sentence or order not being interlocutory order, of the special court, both on fact and on law.

§ Section 55 of the Monopolies and Restrictive Trade Practices Act, 1969 provides for an appeal to the Supreme Court from certain orders passed by the Central Government or by MRTP Commission.

§ Section 18 of the Telecom Regulatory Authority of India Act, 1997 provides for an appeal to the Supreme Court against any order not being an interlocutory order, of the Appellate Tribunal, on one or more of the grounds specified in Section 100 of Code of Civil Procedure.

§ Section 15(z) of the Securities and Exchange Board of India Act, 1992, provides that any person aggrieved by any decision or order of the Securities Appellate Tribunal may file an appeal to the Supreme Court on any question of law arising out of such order.

§ Section 261 of the Income-Tax Act, 1961 provides for an appeal to the Supreme Court from any judgment of the High Court (delivered on a reference made under Section 256 against an order made under Section 254 before 1st October, 1998 or on appeal made to the High Court in respect of an order passed under section 254 on or after that date), in any case which the High Court certifies to be a fit one for appeal to the Supreme Court.

§ Section 19 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 provides for an appeal to the Supreme Court from any judgment, sentence or order not being an interlocutory order, of a Designated Court, both on facts and on law. The Act has since been repealed.

§ Section 53T of the Competition Act, 2002, provides for an appeal to the Supreme Court against any decision or order of the Appellate Tribunal.

Review Of Literature:
· The reference has been taken from “The Constitutional Law of India” by Prof. M.P. Jain, a book which is very renowned as far as the study of Constitutional Law is concerned in India. The book contains a lucid commentary on the Constitutional Law.

· The book on Constitutional Law by J. N. Pandey is a brief note to get the idea of what Constitution is and how it functions in a country like India. The book contains various case laws and short commentaries on various Articles of the Indian Constitution.

· The “Commentaries on Constitutional Law of India” by a renowned advocate Mr. Subhash C. Kashyap, is the another book which was reviewed by me in the completion of this research project. The book provides for a broad understanding of the Constitutional Law and its provisions as mentioned in the Constitution of India.

Statement Of Problem:
The study is conducted in order to understand how appellate jurisdiction of Hon’ble Supreme Court of India helps in maintaining the spirit of justice. This is a criminal appeal matter which was brought to the Supreme Court of India after the judgment delivered by Hon’ble High Court of Bombay. Basically, it won’t be an in – depth study on the topic of appellate jurisdiction but a summarised case study conducted in order to understand the nature of appeals in criminal matters and when can the Supreme Court entertain them.

Research Questions:
· Whether the appellate jurisdiction of Supreme Court ensures justice by over-ruling the High Court judgment.
· Whether criminal appeals of all sorts can be entertained in the Supreme court of India..

Nature And Scope Of The Study
The nature of my study is doctrinal, i.e. along with references from books my study involves internet articles and comments. The project work limits to the understanding of the constitutional framework of Appellate jurisdiction of the Supreme Court of India. Also, the research is mainly a case study which is limited to Criminal Appeal matter in the case of Kailas & Ors. v/s State of Maharashtra and Taluka P.S. The facts and judgement of this will be studied in order to get the clear understanding of criminal appeal matter. This case study is done in order to understand appeals and appellate jurisdiction is justifying its stand in the protection of justice.

Objectives Of The Study
· To understand the concept of appellate jurisdiction of the Supreme Court.
· To examine in brief the nature of criminal appeals made in the Hon’ble Supreme Court of India.

Brief Facts Of The Case
(Kailas & Ors. v/s State of Maharashtra and Taluka P.S.)
[This appeal had been filed against the final judgment and order dated 10.03.2010 in Criminal Appeal No. 62 of 1998 passed by the Aurangabad Bench of Bombay High Court. This appeal furnished a typical instance of how many of our people in India had been treating the tribal people (Scheduled Tribes or Adivasis), who were probably the descendants of the original inhabitants of India, but now constitute only about 8% of our total population, and as a group are one of the most marginalized and vulnerable communities in India characterized by high level of poverty, illiteracy, unemployment, disease, and landlessness.]

“The victim in the present case was a young woman Nandabai 25 years of age belonging to the Bhil tribe which is a Scheduled Tribe (ST) in Maharashtra, who was beaten with fists and kicks and stripped naked by the accused persons after tearing her blouse and brassieres and then got paraded in naked condition on the road of a village while being beaten and abused by the accused herein.”

[The four accused were convicted by the Additional Sessions Judge, Ahmednagar on 05.02.1998 under Sections 452, 354, 323, 506(2) read with Section 34 IPC and sentenced to suffer RI for six months and to pay a fine of Rs. 100/-. They were also sentenced to suffer RI for one year and to pay a fine of Rs. 100/- for the offence punishable under Sections 354/34 IPC. They were also sentenced under Section 323/34 IPC and sentenced to three months RI and to pay a fine of Rs. 100/-. The appellants were further convicted under Section 3 of the Scheduled Cases and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentenced to suffer RI for one year and to pay a fine of Rs. 100/-.]

[ In appeal before the High Court the appellants were acquitted of the offence under Section 3 of the SC/ST Act, but the conviction under the provisions of the IPC were confirmed. However, that part of the order regarding fine was set aside and each of the appellant was directed to pay a fine of Rs. 5000/- only to the victim Nandabai. The prosecution case was that the victim Nandabai who belonged to the Bhil community was residing with her father, handicapped brother, and lunatic sister. She had illicit relations with PW9 Vikram and had given birth to his daughter and was also pregnant through him for a second time. Vikram belongs to a higher caste and his marriage was being arranged by his family with a woman of his own caste. On 13.5.1994 at about 5.00 P.M. when the victim Nandabai was at her house the four accused went to her house and asked why she had illicit relations with Vikram and started beating her with fists and kicks. At that time the accused Kailas and Balu held her hands while accused Subabai aka Subhadra removed her sari. The accused Subhash then removed her petticoat and accused Subabai tore the blouse and brassiere of the victim Nandabai. Thereafter the accused Subabai and Balu paraded the victim Nandabai on the road of the village and at that time the four accused herein were beating and abusing the victim Nandabai. At about 8.40 p.m. an FIR was lodged at Taluka Police Station and after investigation a charge-sheet was filed. After taking evidence the learned Additional Sessions Judge convicted the accused.]

As already mentioned above, the conviction under the provisions of the IPC had been upheld but that under the Scheduled Cases and Scheduled Tribes (Prevention of Atrocities) Act, 1989 had been set aside.

Arguments And Judgment
The conviction of the accused under the Scheduled Cases and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was set aside on hyper technical grounds that the Caste Certificate was not produced and investigation by a Police Officer of the rank of Deputy Superintendent of Police was not done. These appeared to be only technicalities and hardly a ground for acquittal. However, there was no reason to interfere with the judgment of the High court convicting the appellants under various provisions of the IPC and imposing fine on them. In fact, we feel that the sentence was too light considering the gravity of the offence.

[There was the evidence of the victim Nandabai PW4 herself and there was no reason to disbelieve the same. Although many of the witnesses had turned hostile, there was no reason to disbelieve the statement of the victim Nandabai. In fact, Vikram supported the prosecution case to some extent. He had accepted his illicit relations with victim Nandabai and admitted that he had a daughter from her and she was pregnant for a second time through him. Even though he did not support the actual incident, it was to bet opined that Vikram’s evidence at least on the points admitted by him corroborated the evidence of victim Nandabai. PW2 Narendra Kalamkar had proved the spot panchanama Exh. 12. He stated that the panchanama was drawn in front of the house of PW4, the victim Nandabai. At the time of the panchanama, Nandabai was accompanied by the police and she had shown the entire area from her house to the place in front of the shop of PW3 Shankar Pawar. The police seized the clothes in torn condition, produced by PW4 Nandabai. There were pieces of bangles lying in front of the house. Hence there was no reason to disbelieve PW2 Narendra Kalamkar. It appeared that the accused were powerful persons in the village inasmuch as that all the eye-witnesses had turned hostile out of fear or some inducement. However, PW8 Dr. Ashok Ingale proved the medical certificate Exh. 26 and stated that there were two contusions on the person of the victim.]

The parade of a tribal woman on the village road in broad day light is shameful, shocking and outrageous. The dishonour of the victim Nandabai called for harsher punishment, and the surprising thing was that the State Government did not file any appeal for enhancement of the punishment awarded by the Additional Sessions Judge.

It was alleged by the appellants that the people belonging to the Bhil community live in torn clothes as they do not have proper clothes to wear. This itself showed the mentality of the accused who regard tribal people as inferior or sub-humans. This is totally unacceptable in modern India.

[The Bhils are probably the descendants of some of the original inhabitants of India living in various parts of the country particularly southern Rajasthan, Maharashtra, Madhya Pradesh etc. They are mostly tribal people and have managed to preserve many of their tribal customs despite many oppressions and atrocities from other communities.]

[It is stated in the Article ‘World Directory of Minorities and Indigenous Peoples – India: Advasis’, that in Maharashtra Bhils were mercilessly persecuted in the 17th century. If a criminal was caught and found to be a Bhil, he or she was often killed on the spot. Historical accounts tell us of entire Bhil communities being killed and wiped out. Hence, Bhils retreated to the strongholds of the hills and forests.]

Thus, Bhils are probably the descendants of some of the original inhabitants of India known as the ‘aborigines’ or Scheduled Tribes (Adivasis), who presently comprise of only about 8% of the population of India. The rest 92 % of the population of India consists of descendants of immigrants. Thus India is broadly a country of immigrants like North America. We may consider this in some detail. India is broadly a country of immigrants. While North America (USA and Canada) is a country of new immigrants, who came mainly from Europe over the last four or five centuries, India is a country of old immigrants in which people have been coming in over the last ten thousand years or so. Probably about 92% people living in India today are descendants of immigrants, who came mainly from the North-West, and to a lesser extent from the North-East. Since this is a point of great importance for the understanding of our country, it is necessary to go into it in some detail.

People migrate from uncomfortable areas to comfortable areas. This is natural because everyone wants to live in comfort. Before the coming of modern industry there were agricultural societies everywhere, and India was a paradise for these because agriculture requires level land, fertile soil, plenty of water for irrigation etc. which was in abundance in India. Why should anybody living in India migrate to, say, Afghanistan which has a harsh terrain, rocky and mountainous and covered with snow for several months in a year when one cannot grow any crop? Hence, almost all immigrations and invasions came from outside into India (except those Indians who were sent out during British rule as indentured labour, and the recent migration of a few million Indians to the developed countries for job opportunities). There is perhaps not a single instance of an invasion from India to outside India. India was a veritable paradise for pastoral and agricultural societies because it has level & fertile land, hundreds of rivers, forests etc. and is rich in natural resources. Hence for thousands of years people kept pouring into India because they found a comfortable life here in a country which was gifted by nature.

At one time, it was believed that the Dravidians were the original inhabitants. However, this view has been considerably modified subsequently, and now the generally accepted belief is that the original inhabitants of India were the pre- Dravidian aborigines i.e. the ancestors of the present tribals or advasis (Scheduled Tribes).

On the other hand, as stated above, India has tremendous diversity and this is due to the large scale migrations and invasions into India over thousands of years. The various immigrants/invaders who came into India brought with them their different cultures, languages, religions, etc. which accounts for the tremendous diversity in India.

Since India is a country of great diversity, it is absolutely essential if we wish to keep our country united to have tolerance and equal respect for all communities and sects. It was due to the wisdom of our founding fathers that we have a Constitution which is secular in character, and which caters to the tremendous diversity in our country.

Thus it is the Constitution of India which is keeping us together despite all our tremendous diversity, because the Constitution gives equal respect to all communities, sects, lingual and ethnic groups, etc. in the country. The Constitution guarantees to all citizens freedom of speech (Article 19), freedom of religion (Article 25), equality (Articles 14 to 17) liberty (Article 21), etc.

[ However, giving formal equality to all groups or communities in India would not result in genuine equality. The historically disadvantaged groups must be given special protection and help so that they can be uplifted from their poverty and low social status. It is for this reason that special provisions have been made in our Constitution in Articles 15(4), 15(5), 16(4), 16(4A), 46, etc. for the upliftment of these groups. Among these disadvantaged groups, the most disadvantaged and marginalized in India are the Adivasis (STs), who, as already mentioned, are the descendants of the original inhabitants of India, and are the most marginalized and living in terrible poverty with high rates of illiteracy, disease, early mortality etc. Their plight has been described by this Court in Samatha vs. State of Andhra Pradesh and Ors.Hence, it is the duty of all people who love our country to see that no harm is done to the Scheduled Tribes and that they are given all help to bring them up in their economic and social status, since they have been victimized for thousands of years by terrible oppression and atrocities. The mentality of our countrymen towards these tribals must change, and they must be given the respect they deserve as the original inhabitants of India. The bravery of the Bhils was accepted by that great Indian warrior Rana Pratap, who held a high opinion of Bhils as part of his army.]

The injustice done to the tribal people of India is a shameful chapter in our country’s history. The tribals were called ‘rakshas’ (demons), ‘asuras’, and what not. They were slaughtered in large numbers, and the survivors and their descendants were degraded, humiliated, and all kinds of atrocities inflicted on them for centuries. They were deprived of their lands, and pushed into forests and hills where they eke out a miserable existence of poverty, illiteracy, disease, etc. And now efforts are being made by some people to deprive them even of their forest and hill land where they are living, and the forest produce on which they survive.

[The well known example of the injustice to the tribals is the story of Eklavya in the Adiparva of the Mahabharat. Eklavya wanted to learn archery, but Dronacharya refused to teach him, regarding him as low born. Eklavya then built a statue of Dronacharya and practiced archery before the statue. He would have perhaps become a better archer than Arjun, but since Arjun was Dronacharya’s favourite pupil Dronacharya told Eklavya to cut off his right thumb and give it to him as ‘guru dakshina’ (gift to the teacher given traditionally by the student after his study is complete). In his simplicity Eklavya did what he was told.]

[This was a shameful act on the part of Dronacharya. He had not even taught Eklavya, so what right had he to demand ‘guru dakshina’, and that too of the right thumb of Eklavya so that the latter may not become a better archer than his favourite pupil Arjun? ] Despite this horrible oppression on them, the tribals of India have generally (though not invariably) retained a higher level of ethics than the non-tribals in our country. They normally do not cheat, tell lies, and do other misdeeds which many non-tribals do. They are generally superior in character to the non-tribals. It is time now to undo the historical injustice to them. Instances like the one with which we are concerned in this case deserve total condemnation and harsh punishment. With these observations the appeal was dismissed by the Hon’ble Supreme Court of India.

Conclusion
As per the Article 136 of the Constitution of India, the criminal appeal can be maintained in the Supreme Court of India under the appellate jurisdiction of Supreme Court of India. Under this jurisdiction, the Constitution grants power to any person to approach the Hon’ble apex court in case he/she is not satisfied with the decision of any lower court. Even, high court enjoys the powers of Appellate jurisdiction under Article 226 of the Constitution of India.

References:
Books:
· Constitutional Law, by Prof. M. P. Jain
· Constitutional Law of India, by Mr. J. N. Pande
· Commentry on constitutional Law of India, by Subhash C. Kashyap

# “Constitutional Law of India” , by M P Jain
# http://supremecourtofindia.nic.in/handbook3rdedition.pdf
# People of India Maharshtra Volume XXX Part One edited by B.V Bhanu, B.R Bhatnagar, D.K Bose, V.S Kulkarni and J Sreenath pages 280–286
# AIR 1997 SC 3297
# Commentary on Constitutional Law, by Subhash C. Kashyap
# Tribal.nic.in ( http://tribal.nic.in/index2.asp?sublinkid=522&langid=1)

The  author can be reached at: krishnaa@legalserviceindia.com

Follow the Procedure Below To Submit Your Articles

Submit your Article by using our online form Click here
Note* we only accept Original Articles, we will not accept Articles Already Published in other websites.
For Further Details Contact: editor@legalserviceindia.com

File Your Copyright - Right Now!