Appellate jurisdiction of Supreme Court in regard to criminal matters

Article 134, Constitution of India 1950

(1) An appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India if the High Court—

(a) 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(b) has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to death; or

(c) certifies that the case is a fit one for appeal to the Supreme Court:

⁠Provided that an appeal under sub-clause (c) shall lie subject to such provisions as may be made in that behalf under clause (1) of article 145 and to such conditions as the High Court may establish or require.

⁠(2) Parliament may by law confer on the Supreme Court any further powers to entertain and hear appeals from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India subject to such conditions and limitations as may be specified in such law.

Draft Article 111A (Article 134) was not included in the Draft Constitution of India 1948. A member moved the following amendment:

‘That after clause (2) of article 111, the following new clause be inserted:-

(3) An appeal shall lie to the Supreme Court against the judgments of the High Courts in the territory of India in the exercise of its criminal jurisdiction in the following cases:-

(a) convicting accused persons as a result of acceptance of appeals against their acquittal.

(b) sentencing to or confirming the sentence of death or transportation for life.

(c) in respect of other matter when the High Court grants a certificate that the case is a fit one for appeal to the Supreme Court.’

This amendment was debated as Draft Article 111A on 13 and 14 June 1949. It conferred the power to hear criminal appeals on the Supreme Court.

A number of amendments were proposed to the Draft Article, which ranged from providing appeals only where the sentence of imprisonment exceeded five years to only permitting appeals after the High Court certified that the case was fit for appeal.

One member argued that appeal should exist in three cases: when certified by the High Court, when a High Court sentences a person to death, and where Parliament provides for appeal by law. Most members agreed with the requirement of High Court certification, with one member stating that Draft Article 112 (Article 136) ‘committed us to the acceptance of the principle that appeals must lie also on a certificate by the High Court concerned in criminal cases’. Other members disagreed with the latter provision, arguing that it left the judiciary vulnerable to parliamentary interference.

Another member proposed that appeals should also lie where an acquittal by a Sessions Court has been overturned by a High Court, and in any case involving ‘an important question of law’. Some members supported this proposition; they referred to the situations in which social discrimination had resulted in a guilty verdict, and argued that if appeals were not permitted in that situation, innocent men would be hanged.

After hearing these arguments, the Chairman of the Drafting Committee proposed an amendment to wholly replace the Draft Article as follows:

‘111-A. The Supreme Court shall have power to entertain and hear appeals from any judgment, final Appellate jurisdiction of Supreme Court with regard to criminal matters order or sentence in a criminal proceeding of a High Court in the territory of India-
(a) if the High Court has on appeal reversed the order of acquittal of an accused person and sentenced him to death; or

(b) if the High Court 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 death; or

(c) if the High Court certifies that the case is a fit one for appeal to the Supreme Court :

Provided that an appeal under sub-clause (c) of this clause shall lie subject to such rules as may from time to time be made by the Supreme Court and to such conditions as the High Court may establish or require.

(2) Parliament may by law confer on the Supreme Court any further powers to entertain and hear appeals from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India subject to such conditions and limitations as may be specified in such law.’

One member argued that this amendment went ‘against the very grain’ of the Objectives Resolution and the fundamental rights since it did not provide a right to appeal for convicted persons not sentenced to death. He was particularly against the proviso to clause (c) since it imposed more restrictions on criminal appeals than civil.

A member of the Drafting Committee questioned the necessity of the Draft Article, since it appeared that the Supreme Court already had the power to hear a criminal appeal under Draft Article 112 (Article 136). Another member responded that Draft Article 112 gave the Supreme Court a discretionary power to hear an appeal, whereas the present Draft Article gave convicted persons the right to have their appeal heard by the court in certain circumstances.

The Chairman of the Drafting Committee stated that the amendment took into account the main concerns expressed by the majority of the Assembly since it provided a right to appeal to persons sentenced to death, while requiring the certification of the High Court in other cases to ensure that the Supreme Court was not overburdened with cases. Moreover, if a lacunae in the law was identified in the future, Parliament had the freedom to expand the right to criminal appeals through legislation.

All the proposed amendments were withdrawn or negatived, with the exception of the amendment proposed by the Chairman of the Drafting Committee. The amended Draft Article was adopted on 14 June 1949.