1975 PLP 346 (SCMR)

The State, feeling aggrieved by the above interpretation seeks leave to appeal. Here it is important to point out that by the impugned order only the abstract question of law has been answered and there is no operative order yet by the High Court actually suspending the operation of the sentence in either case. Section 7 of the Act reads

7. Appeals fro‑n sentences imposed by Special Court etc.‑(1) A person sentenced by a Special Court shall have a right of appeal to the High Court within who3e jurisdiction the sentence has been passed, but save as aforesaid and notwithstanding the provisions of the Code or of any other law for the time being in force or of anything having the force of law by whatsoever authority made or done, no Court shall have authority to revise such sentence, or to transfer any case from a Special Court or to make any order under section 426 or section 492 or section 498 of the Code, or have any jurisdiction of any kind in respect of any proceedings of a Special Court. (2) An appeal under subsection (1) shall be preferred to the High Court within thirty days of the passing of the sentence and shall 3e heard and decided by a Beach of not less than two Judges of the High Court. (3) Chapter XXIX of the Code shall apply to the suspension, remission and commutation of sentences passed by a Special Court." The learned Judges on an analysis of the section came to the conclusion that the expression "no Court" in the second part of subsection (1) of the section refers to Courts other than the High Court which is specifically referred to in the earlier part of the subsection, as having the exclusive jurisdiction to entertain appeal against the judgment of the Special Court constituted under the Act. Relying also on a recent judgment of this Court in Sind Employees' Social Security Institution and another v. Adamjee Cotton Mills (P L D 1975 S C 32) the learned Judges accepted the argument that the power to suspend the operation of an order against which appeal is pending is ancillary or incidental to the exercise of the main appellate jurisdiction expressly conferred by the Statute. The learned Additional Advocate‑General virtually repeated the argument canvassed before but rejected by the High Court and submitted that the view taken by the High Court was erroneous. While it may be, that question of law in these petitions is of some nicety and is also of first impression. However, maintainability of the two petitions is open to a serious objection namely whether in the face of the fact that there is no operative order in the case, the State can properly seek leave to appeal against what it considers as mere erroneous interpretation of the Statute, on a matter which collaterally arose in the two cases? This by itself is a question of fundamental importance which cannot possibly be brushed aside. Learned Additional Advocate‑General being conscious of his difficulty relied upon Clause (3) of Article 185 of the Constitution, which according to him was wide enough to make appeal by special leave of this Court competent even in interlocutory matters. Article 185 of the Constitution which is declaratory of the limits of the entire appellate jurisdiction of this Court reads "(1) Subject to this Article, the Supreme Court shall have jurisdiction to hear and determine appeals from judgments, decrees, final orders or sentences of a High Court. (2) An appeal shall lie to the Supreme Court from any judgment, decree, final order or sentence of a High Court‑ (a) if the High Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death or to transportation for life or imprisonment for life ; or, on revision, has enhanced a sentence to a sentence as aforesaid , or (b) if the High Court has withdrawn for trial before itself any case from any Court subordinate to it and has in such trial convicted the accused person and sentenced him as aforesaid 1 or (c) ‑if the High Court has imposed any punishment on any person for contempt of the High Court ; or (d) if the amount or value of the subject‑matter of the dispute in the Court of first instance was, and also in dispute in appeal is, not less than fifty thousand rupees or such other sum as may be specified in that behalf by Act of Parliament and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below or (e) if the judgment, decree or final order involves directly or indirectly some claim or' question respecting property of the like amount or value and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below ; or (f) if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution. (3) An appeal to the Supreme Court from a judgment, decree, order or sentence of a High Court in a case to which clause (2) does not apply shall lie only if the Supreme Court grants leave to appeal." Clause (i) plainly envisages appeals whether as of right or by leave "from judgments, decrees, final orders or sentences of a High Court". It will be noticed that the expression "order" is pre-fixed by tae qualifying word "final" And. this is a sharp departure from the provisions of the earlier Constitutions which did not contain any such limitation. Learned Additional Advocate General on the other hand would read Clause (3) wherein the expression "order" is not qualified by the word "final" and therefore can appropria tely be invoked in the cases of all sort or orders whether or otherwise. This question has already arisen though in a less acute form, for in those cases, unlike the instant two cases, there were operative orders, which immediately affected the parties concerned. That is a larger question which can more appropriately be left to be determined by a larger Bench. In the instant case the objection can be sustained quite apart from the visions of Article L85 of the Constitution. As pointed out in the ginning there is no operative order by the High Court suspending the sentence of the respondent in either case. The impugned order is on matter which collaterally arose in the case. The prayer for the suspension of the sentences of the two respondents is yet to be determined by the High Court. On being questioned, the learned Additional Advocate General could not preclude the possibility that even in spite of the impugned order, the High Court might decline to suspend operation of the respondent's sentences. This amply demonstrates the futility of these petitions. Therefore, quite apart from the provisions of Article 185 of the Constitution, to allow leave in these circumstances is likely to produce deleterious effect for it will only encourage piecemeal decisions resulting in multiplicity of proceedings and waste of public time and money, which must be avoided in larger public interests. For the foregoing reasons we dismiss both the petitions. Petitions dismissed.