Nihal Singh And Ors vs State Of Punjab

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 53 of 1962

Decision Date: 10 May 1963

Coram: Subba Rao J, Raghubar Dayal J, J.R. Mudholkar J

In the matter titled Nihal Singh and Others versus State of Punjab, the Supreme Court of India delivered its judgment on 10 May 1963. The bench comprised Justice Subbarao K., Justice Raghubar Dayal and Justice J. R. Mudholkar. The case is reported in 1965 AIR 26 and 1964 SCR (4) 5, with a citator reference of RF 1972 SC 622 (32). The appeal arose from a criminal trial in which the High Court had set aside an acquittal order and imposed rigorous imprisonment, and the court considered the procedure to be followed under Article 136 of the Constitution of India.

The headnote records that the appellants had formed an unlawful assembly and, in pursuance of a common object, caused the deaths of two persons. They were charged under sections 148, 149 and 302 of the Indian Penal Code. The trial court acquitted them of all charges, but on appeal the High Court, after reviewing the entire evidence, overturned the acquittal and sentenced each appellant to life imprisonment and one year of rigorous imprisonment respectively. Consequently, the matter came before this Court on a special leave petition.

Justice Subbarao and Justice Mudholkar, speaking for the Court, observed that the Supreme Court possesses full discretion to entertain an appeal under Article 136 on both factual and legal grounds. However, they emphasized that such broad jurisdiction must be guided by the Court’s practice. The Court identified two approaches for hearing an Article 136 appeal. The first approach involves a complete examination of the evidence to determine whether the High Court erred in applying the principles articulated in Sanwat Singh’s case or whether the appeal is exceptional enough to warrant interference in the interest of justice. The second, more convenient approach allows counsel to present the case in a broader manner, after which the Court reviews the lower‑court judgments and decides whether the appeal fits into one of the two categories. If the Court finds the case suitable for a full evidentiary review, it may proceed accordingly. This second method conserves time and avoids the unnecessary waste involved in treating an Article 136 appeal as a regular appeal, thereby preventing an inflexible procedural rule. The Court stressed that division benches should retain the flexibility to adopt the procedure they deem appropriate.

The Court also reiterated the authority of Sanwat Singh v. State of Rajasthan, [1961] 3 SCR 120, and State of Bombay v. Rusy Mistry, AIR 1960 SC 391, both of which were followed in reaching its conclusions. Moreover, the Court noted that the High Court had duly considered the principles laid down in Sanwat Singh’s case, examined the entire evidence carefully, and arrived at its factual findings. Accordingly, the Court held that the present case did not qualify as an exceptional situation requiring a full evidentiary review.

The Court observed that, based on the facts established, no instance of private defence could be established. It further noted that the defence of private defence had not been pleaded before either the trial court or the High Court. In the opinion authored by Justice Raghubar Dayal, the Court held that dividing the hearing of an appeal under Article 136 into two stages—first a broader review and later, if required, a detailed examination of facts—does not result in a hearing as complete as would be desirable for a proper adjudication of the appeal. The Court also expressed that it is undesirable to prescribe any limitation on the scope of its jurisdiction or on the exercise of its discretion in hearing an appeal of this nature, because the Supreme Court possesses full discretion to hear an appeal on both questions of law and questions of fact.

The matter before the Court fell within the criminal appellate jurisdiction and was designated as Criminal Appeal No 53 of 1962. The appeal was filed by special leave against the judgment and order dated 9 January 1961 of the Punjab High Court in Criminal Appeal No 1018 of 1960. Counsel for the appellants were A. Ranganadham Chetty and K. L. Arora, while counsel for the respondent were B. K. Khanna and P. D. Menon. The judgment was dated 10 May 1963. The judgment of Justices Subba Rao and Mudholkar was delivered by Justice Subba Rao, and Justice Dayal delivered a separate opinion.

Justice Subba Rao set out that the appeal by special leave was directed against the High Court of Punjab at Chandigarh’s judgment, which had set aside the order of the Second Additional Sessions Judge of Ferozepore. That Sessions Judge had acquitted the five appellants of the charges under Section 148 and Sections 302 and 149 of the Indian Penal Code, but the High Court had reversed that acquittal, convicted the appellants under the same sections, and sentenced each of them to rigorous imprisonment—life imprisonment for some and one year for others.

The prosecution case was summarized as follows: on 23 December 1959, the five appellants formed an unlawful assembly and, in pursuance of a common object, caused the deaths of Gurdit Singh and his son Pal Singh. At sunset on that day, the appellants were present in the haveli of Banta Singh, the father of Nihal Singh, appellant 1. When Tara Singh was proceeding toward his house, the five appellants, armed with deadly weapons, emerged from the haveli and chased him with the intention of assaulting him. Ranjit Singh, who was watering his cattle at a nearby well, asked the appellants not to beat Tara Singh. Tara Singh raised an alarm while being pursued. Hearing the alarm, Gurdit Singh (father of Ranjit Singh), his other son Pal Singh, and Pal Singh’s son Balbir Singh came out of their house. Pal Singh was carrying a takwa in his hand. Both Gurdit Singh and Pal Singh appealed to the assailants not to beat Tara Singh. Dalip Singh, appellant 3, seized Pal Singh from behind, and Nihal Singh, appellant 1, aimed a blow at Pal Singh’s head. Pal Singh then used his takwa in self‑defence against Darshan Singh, appellant 4, after which Harbans Singh also became involved.

In the incident, Appellant 5 struck Pal Singh with his takwa, causing Pal Singh to fall to the ground. After Pal Singh was lying there, Darshan Singh together with Pritam Singh, who is Appellant 2, attacked him repeatedly with their takwa. While lying on the ground, the takwa that Pal Singh was holding slipped from his grasp. At that moment his father, Gurdit Singh, seized the weapon that had fallen and tried to use it against the assailants. Pritam Singh then delivered a deadly blow to Gurdit Singh’s head. Harbans Singh and Darshan Singh also struck Gurdit Singh in the same manner. As a result, Gurdit Singh died immediately at the scene, and Pal Singh died a short time later. Following these events, the appellants were committed to the Sessions Court to face the charges that had arisen from the episode. All of the appellants entered a plea of “not guilty” and asserted that they had become involved because of personal enmity. The learned Additional Sessions Judge, after examining the evidence, concluded that the prosecution had not established the case against any of the accused beyond all reasonable doubt, and on that basis he acquitted every appellant. The matter was then taken on appeal to the High Court. The High Court, after reviewing the whole body of evidence, reached a contrary conclusion. It held that the Additional Sessions Judge had erred completely in discrediting the prosecution witnesses, and, on that finding, the High Court convicted the appellants and sentenced them as recorded. Consequently, an appeal was filed against the High Court’s judgment. The Supreme Court, referring to the decision in Sanwat Singh v. State of Rajasthan, outlined the principles for disposing of an appeal against an order of acquittal issued by a subordinate court. The Court observed that an appellate court possesses full authority to re‑examine the evidence that formed the basis of the acquittal, that the principles set out in the case of Sheo Swarup provide the correct guidance for the appellate court’s approach, and that the various expressions used in Supreme Court judgments—such as “substantial and compelling reasons”, “good and sufficient cogent reasons”, and “strong reasons”—are not meant to limit the appellate court’s inherent power to review the entire evidence and reach its own conclusion. In exercising that power, the appellate court must consider every item on record that bears on the factual questions, must assess the reasons given by the lower court in support of its acquittal, and must articulate in its own judgment the reasons that lead it to conclude that the acquittal was unwarranted. The Court further noted that a more challenging issue is to delineate the scope of its own jurisdiction and the limits of its discretion when entertaining an appeal under Article 136 of the Constitution against a High Court judgment that convicts an accused after overturning a subordinate court’s order of acquittal.

Article 136 of the Constitution is expressed in very broad terms, and the Supreme Court’s jurisdiction under that article is said to be limited only by the Court’s own discretion. Consequently, the Court may, at its discretion, entertain an appeal and may exercise every power that an appellate Court normally possesses with respect to judgments, decrees, determinations, sentences or any other orders that fall within the scope of the article. In effect, this means that the Supreme Court unquestionably has the authority to interfere even with the findings of fact that a High Court reaches in an appeal which sets aside the findings of a subordinate Court that had acquitted an accused, as illustrated by the authorities cited in (1) [1961] 3 S.C.R. 120, 129 and (2) [1931] L.R. 61 I.A. 398.

Although the Court enjoys this extensive jurisdiction, the exercise of that power must be guided by the Court’s own practice. A circumstance where the appellate Court, in overturning an order of acquittal, fails to follow the principles laid down by this Court in the Sanwat Singh case (1) can indeed serve as a ground for the Supreme Court to intervene in the High Court’s judgment. However, when the High Court has adhered to those principles, has carefully examined the evidence and has articulated its own factual findings, the same practice that this Court follows in regard to findings of fact in appeals under Article 136 can be appropriately applied.

The Court’s approach to the regulation of its jurisdiction under Article 136 in criminal appeals was recorded in State of Bombay v. Rusy Mistry (2). At page 395 of that judgment, the Court explained that Article 136 does not create a statutory right of appeal for any party; rather, it vests a discretionary power in the Supreme Court to interfere in suitable cases. Implicit in that discretionary power is the understanding that it cannot be exhaustively defined and that it must not be interpreted as granting a right of appeal where none exists under the law. The practice inherited from the Privy Council, the Federal Court and the Supreme Court itself is to refrain from interfering with questions of fact except in extraordinary situations—such as when a finding “shocks the conscience of the Court,” when there is a blatant disregard of legal process, a violation of natural‑justice principles, or when a substantial and grave injustice has occurred. The same restrained practice is to govern the Court’s discretion when it is called upon to consider an appeal against a judgment of an appellate Court that has set aside an order of acquittal made by a subordinate Court.

In summary, when an appeal under Article 136 comes before the Supreme Court, the Court typically addresses two principal questions. First, it examines whether the appellate Court adhered to the principles articulated in the Sanwat Singh case (1) while appreciating the evidence. Second, if those principles were followed, the Court then determines whether the case falls within the narrow class of exceptional circumstances that justify the Supreme Court’s interference. The authorities supporting this two‑fold inquiry include (1) [1961] 3 S.C.R. 120, 129 and (2) A.I.R. 1960 S.C. 391, and the Court may adopt either a full‑scale re‑appraisal of the entire evidence or a more streamlined method, depending on the circumstances of each appeal.

In dealing with an appeal that challenges an order of acquittal, the Court recognised two principal methods of approach. The first method involves a full re‑examination of the entire evidence, as is done in a regular appeal, to determine whether the High Court erred in applying the principles articulated in Sanwat Singh’s case or whether the matter presents an exceptional circumstance that warrants interference in the interest of justice. The second, more streamlined method permits counsel to set out the case in broad terms, after which the Court reviews the judgments of the lower courts and decides whether the appeal falls into either of the two categories previously described. If the Court is persuaded that the case is suitable for a comprehensive review, it may then proceed to examine the whole evidence. The Court emphasized that it cannot impose a rigid rule of practice for such appeals; the appropriate procedure must be left to the discretion of the division benches handling them. Nonetheless, the Court observed that the second, more convenient method is generally preferable because it enables the Court to administer justice where appropriate while avoiding the unnecessary consumption of time that would result from treating the appeal as a regular full‑scale rehearing. With this procedural framework in mind, the Court then turned to consider the parties’ contentions.

The prosecution narrative was presented through the testimony of three eyewitnesses—Ranjit Singh (identified as PW 2), Saudagar Singh (PW 3) and Balbir Singh (PW 4)—as well as Balwant Singh, the Sarpanch (PW 7), who claimed to have arrived at the scene immediately after the incident. The oral statements were intended to be supported by the physical production of the weapons allegedly used by the accused. The learned Additional Sessions Judge rejected this evidence on several principal grounds. First, the judge noted that the distance between the haveli of Banta Singh and the alleged site of the clash was about 17 karams, equivalent to roughly 85 feet, and the distance from the alleged site to the gate of Pal Singh’s house was about 22 karams, or approximately 110 feet. In the judge’s view, these measurements made it implausible that the impact between the assailants and the deceased could have occurred at the place described by the prosecution witnesses. Second, the judge questioned the timing of the murders, asserting that they occurred at about 9 p.m., not at sunset as claimed. This conclusion was based on medical evidence showing that the deceased, Gurdit Singh, had approximately two pounds of semi‑digested food in his stomach and twelve ounces of urine in his bladder, indicating he would have been alive after a meal and therefore unlikely to have died instantly. Additionally, the lady doctor who examined the bodies (PW 1) testified that the probable interval between the injuries inflicted on the two deceased persons and their deaths was four or five hours, a duration that contradicted the prosecution’s claim that the victims succumbed shortly after being injured.

According to the medical expert, the interval between the infliction of the injuries on the deceased persons and their deaths was approximately four to five hours, a fact that contradicts the prosecution’s claim that the victims died shortly after being wounded. The expert further explained that the village where the incident allegedly occurred was situated about sixty‑one miles from the Mallan Wala police station; consequently, the informant who filed the first information report, identified as PW 2, should have reached the police station no later than about nine o’clock in the evening. In reality, however, the report was not lodged until approximately 12 a.m. 45 minutes on 24 December 1959. Regarding the alleged use of a takka, PW 2 testified that the deceased Gurdit Singh struck Nihal Singh on the head with such a weapon, yet the post‑mortem examination disclosed no head injury on Nihal Singh; the only injury recorded was an abrasion on the back of his left thumb. Similarly, PW 3 asserted that Gurdit Singh had employed a takka against Dalip Singh, but the medical examiner admitted that he could not determine the nature of the weapon responsible for the injury found on Dalip Singh. Moreover, Dalip Singh’s body was recovered without any weapon in his possession, leading to the contention that his name had been introduced falsely by the prosecution. PW 7, when cross‑examined, stated that he could not affirm that the blood observed at two locations near the chowk was a masha or any other specific quantity, and he argued that this undermined the prosecution’s narrative of a double homicide at the alleged spot. The court also noted several minor inconsistencies in the particulars presented by different witnesses. The High Court concluded that the learned Additional Sessions Judge had placed excessive emphasis on these minor aspects while overlooking the fundamental elements of the evidence. Applying the principles articulated by this Court in the Sanvat Singh case, the High Court re‑examined the material in detail and determined that the prosecution had successfully established the guilt of the accused, resulting in their conviction and sentencing. Counsel for the appellants argued that the Additional Sessions Judge had adopted a reasonable interpretation of the evidence and that the High Court erred in rejecting that view, asserting that the facts supported a clear case of private defence. A key point raised before the Additional Sessions Judge was that, given the distances involved, the deceased could not have been murdered at the location described by the witnesses. The Court observed that such an argument, based on precise calculations of time, distance, and the movements of witnesses, is highly hypothetical and artificial, because it is unreasonable to expect any witness—especially an illiterate one—to provide scientific detail that would withstand arithmetic scrutiny. Nonetheless, this line of reasoning was the one adopted by the Additional Sessions Judge and was rightly dismissed by the High Court.

In this case the Court observed that the Additional Sessions Judge had placed great reliance on the presence of insect bites on the dead body of Pal Singh, a view that the High Court correctly rejected. During the post‑mortem examination Dr Balbir Kaur, a lady doctor, reported that both nostrils, the lower lip and the forehead of the deceased bore insect bites. The police officer Udham Singh, in his injury statement, described the marks as “the bite marks of some animal like a rat on the nose, the lower lip, the right cheek and the lid of the left eye.” The Court considered the doctor’s description to be more accurate and accepted that some insect bite was indeed present on Pal Singh’s face. The contention advanced by the appellants was that no rat or insect could have bitten a dead body while the room was illuminated, the body covered and many people present, and therefore the bite must have occurred when the deceased was sleeping around nine p.m. near a sugar‑cane crusher installed in the field. Although evidence showed that a sugar‑cane crusher had been purchased, it had not been installed and was situated in a vacant area of about five to six marlas behind Ranjit Singh’s house. From this the Court held that it would be unreasonable to infer that the witnesses were untruthful; there was no improbability that some insect or rat could have entered beneath the cloth covering the body and inflicted the bites. Another circumstance highlighted by the Additional Sessions Judge was the discovery, at post‑mortem, of not less than two pounds of semi‑digested food in the stomach and twelve ounces of urine in the bladder of the deceased Gurdit Singh. It was argued that this indicated the deceased had eaten and was asleep when murdered, for if he had been killed at 5.30 p.m. as the witnesses claimed, such quantities of food and urine would not have been present. The High Court, however, pointed out that these facts could not reliably determine the time of death because there was no record showing that the deceased had not consumed food a couple of hours before the attack. The Court explained that the time required to digest food varies with the nature of the food, the individual’s digestive capacity and health, and that without definite evidence that the deceased had not taken substantial food shortly before death, no firm conclusion could be drawn. Moreover, the capacity to retain urine longer depends on personal habits, an aspect that was not pursued in the cross‑examination of the doctor and on which no question was put to her. Consequently, the High Court correctly held that the Additional Sessions Judge had given undue importance to these circumstances. The Additional Sessions Judge also relied on Dr Kaur’s statement that the interval between the infliction of the injuries and death might be four or five hours, concluding that the witnesses were not truthful when they said the deceased died on the spot or immediately after the injuries. The doctor, however, testified that the injuries in the case of Gurdit Singh were antemortem.

In this case, the Court observed that without statistical data a court could not infer a general habit of villagers taking lunch at one p.m. and dinner at seven p.m., and that the ability to retain urine longer than usual varied according to each person’s habits. The Court noted that this issue had not been examined during the cross‑examination of the medical doctor, and no questions were put to her based on those two factors. Consequently, the Court agreed with the High Court that the Additional Sessions Judge had erred by assigning excessive weight to those circumstances. The Additional Sessions Judge had again relied on a statement made by Dr Balbir Kaur, who suggested that the interval between the infliction of the injuries on the deceased and his death might have been four or five hours, and the Judge concluded that the witnesses were not truthful when they claimed the deceased died on the spot or immediately after being wounded. In her testimony, the doctor said that, in the matter of Gurdit Singh, the injuries were ante‑mortem and that the probable time between the injuries and death was a few hours, and she made a similar observation regarding the case of Pal Singh. The Court held that this testimony was merely speculative, not intended to be precise, and not founded on any scientific data; the doctor had only meant to convey that death occurred within a few hours of the incident. Such a bare opinion could not outweigh the direct evidence presented. The parties also argued about an alleged delay in filing the first information report, contending that the delay supported a theory that the murder occurred at night. The prosecution asserted that the murder took place at five‑thirty p.m., while the first information report was lodged at twelve‑forty‑five a.m. the following day, just after midnight. They pointed out that the distance between the crime scene and the police station was approximately six and a half miles, claimed that the parties travelled on horses, and argued that the reporting delay indicated a nighttime killing. The Additional Sessions Judge accepted this line of reasoning. However, the High Court correctly observed that, given the facts, the report was neither excessively nor unnecessarily delayed. The witness Ranjit Singh testified that he did not use horses to reach the police station because the road was unsuitable for such conveyance, and other witnesses stated they sought to approach the station quietly without attracting the attention of the accused who were lingering nearby. In view of these facts, the Court concurred with the High Court that there was no improper delay in lodging the first information report.

The Court observed that the prosecution attempted to discredit the evidence by alleging that the first information report had been fabricated and that the testimony had been shaped to correspond with the version recorded in that report. The Additional Sessions Judge had also relied on the allegation that the eyewitnesses claimed the deceased had struck the head of Nihal Singh with a takwa, whereas the medical examination revealed only a minor abrasion on the deceased’s left thumb. The High Court explained that the witnesses were describing the movements of the accused with their weapons and could not be expected to specify precisely where a particular weapon struck the body, because the point of impact depends not only on how the weapon is wielded but also on the victim’s movements. A blow intended for the head may miss entirely or may strike another part of the body if the victim moves away. The Court found force in that explanation. The prosecution then contended, through some of its witnesses, that the accused had raised their weapons with the intention of using them against Tara Singh and that they had surrounded him; the prosecution argued that if this version were true, Tara Singh could not have escaped without injury, and therefore the prosecution’s own version must be false. This line of argument was based on the English term “surrounded,” translated from a Punjabi word that can also mean “pursued.” The Court held that no substantive argument could be built on this linguistic nuance, because in the factual context the witnesses were likely referring to pursuit rather than literal encirclement. After reviewing the High Court’s judgment, the Court was satisfied that the High Court had kept in mind the principles laid down by this Court in Sanwat Singh’s case, had examined the entire evidence carefully, and had arrived at its factual findings accordingly. The Court saw no extraordinary reason to depart from normal practice and re‑examine the evidence. The appellants thereafter argued that the facts established a case of private defence. The Court noted that the plea of private defence had never been raised before the Additional Sessions Judge nor before the High Court on appeal, and there was no factual basis for such a plea. The argument relied mainly on the description given by an eyewitness, P.W. 2, who recounted that while the accused were still chasing Tara Singh, his father Gurdit Singh and his brother Pal Singh emerged from their house, with Pal Singh armed with a takwa, and that upon emerging they asked the accused not to

In the incident, after the eyewitness described that Gurdit Singh and Pal Singh emerged from their house and asked the accused not to beat Tara Singh, Dalip Singh, who was one of the accused, responded to those words by seizing Pal Singh from behind. At that point Nihal Singh, another accused, struck Pal Singh on the head with a dang blow. Following this strike Pal Singh, who was armed with a takwa, struck back in self‑defence, directing the blunt side of his weapon against Darshan Singh, also an accused. Subsequently Harbans Singh, another accused, delivered a takwa blow, using the blunt side of the weapon, to Pal Singh. The prosecution argued that after Tara Singh had essentially escaped the assault, Darshan Singh merely held Pal Singh’s hand from behind, prompting Pal Singh to use his takwa, and that the accused then employed their weapons in self‑defence. This line of argument was predicated on the assumption that no takwa blow had been aimed at Pal Singh’s head and that the accused had only seized him. The argument further suggested that, if Pal Singh’s use of the takwa constituted aggression, the accused would have been justified in defending themselves. The Court observed that accepting this contention would amount to misreading the evidence. The factual record showed that Dalip Singh had grasped Pal Singh from behind, which enabled Nihal Singh to deliver the dang blow, and that this act was immediately followed by further blows from the other accused. Consequently, there was no basis for a claim of private defence; the accused were clearly the aggressors and private defence could not arise.

The appellant also contended that the prosecution had failed to prove a common intention among the accused to murder the deceased, and therefore the High Court’s conviction under sections 302 and 149 of the Indian Penal Code was erroneous. It was argued that the evidence did not indicate that the accused had lain in wait to kill Tara Singh or his rescuers, that the incident had developed suddenly, and that no common object to kill either of the two deceased existed. The Court rejected this view, noting that the evidence indisputably demonstrated that all the accused acted together to inflict serious injuries on the two victims. Specifically, the record showed that Accused‑3 grasped Pal Singh from behind, Accused‑1 gave a dang blow on his head, Accused‑5 gave a takwa blow on him, and after Pal Singh fell, Accused‑2 and Accused‑4 gave soti blows while he lay on the ground; likewise, Accused‑2 gave a dang blow on the head of Gurdit Singh, Accused‑5 gave a takwa blow to him, and after Gurdit Singh fell, Accused‑4 gave a soti blow to him. These facts indicated that all the accused were armed with deadly weapons, that they rushed at Tara Singh as soon as he appeared, and that when the deceased came to his rescue they collectively used those weapons, causing fatal injuries. The Court therefore concluded that the intent to kill the deceased was manifest on the evidence, and that the argument raised by the appellant lacked any force.

The Court dismissed the appeal, holding that it failed and consequently rejected it. Justice Raghuvar Dayal concurred with the dismissal and then set out his observations on how the Court should handle such appeals. He expressed that it was not advisable to prescribe any rigid limits on the Court’s jurisdiction or on the exercise of its discretion when hearing a special leave petition under Article 136 against a High Court judgment that had convicted an accused after overturning a lower‑court acquittal. According to him, the discretion available under Article 136 is wholly dependent on the particular bench hearing the matter, which must decide, based on the facts and the law of the case, how to conduct the hearing and reach a decision. He argued that imposing a uniform mode of hearing or a fixed point at which the Court ought to interfere with the lower court’s order would serve no useful purpose. While acknowledging that the Court’s jurisdiction is indeed wide, he noted that ordinarily one would prefer to exercise it in a consistent and definite manner, yet in practice different benches have adopted varied approaches and have shown differing objectives in dealing with such appeals. He referred to the Court’s earlier observations in Harnam Singh v. State of Punjab, which emphasized that the bench hearing a special leave petition must thoroughly examine whether the case merits a hearing in this Court, determine whether that hearing should be confined to a specific question of law or fact, and, if special leave is granted, clearly state the matters on which a hearing is considered necessary. In the absence of such clarification, he preferred that the appeal be heard on both factual and legal aspects. He observed that, although there is a general consensus that appeals should be adjudicated on points of law, there is also a common understanding that the Court should not lightly disturb the factual findings of the High Court, yet he recognised that divergent views on this point are inevitable. He stressed that it would be beneficial for counsel to know in advance the issues that will be addressed so that they can be properly prepared. He explained that, at present, counsel often appear ready only for questions of law; the appellant’s counsel tends to persuade the Court to consider factual questions, and when that succeeds the appellant is left with little to argue. Conversely, the respondent’s counsel is frequently taken by surprise, unable to meet the appellant on factual matters, and can only assist the Court to the extent possible under the circumstances. Consequently, he concluded that splitting the hearing of an Article 136 appeal into a broader initial stage followed by a separate factual stage does not achieve an ideal adjudication, and that allowing parties to know that, upon obtaining special leave without restrictions, they may argue factual issues will encourage full preparation and enable the Court to decide the appeal more effectively.

The Court cited the decision reported at Art. 136 (1) [1962] Supp. 1 S.C.R. 104 and observed that dividing the hearing of an appeal into two stages—first a broader consideration and later, if required, an examination of factual issues—does not necessarily result in a hearing that is as perfect as might be desired for a proper adjudication of the appeal. The Court explained that, if the parties understood that, upon obtaining special leave without any limitation, they would be free to argue on the facts, they would prepare thoroughly and would present their case in the best possible manner for their clients. In that situation, the Court would also be placed in a better position to reach a decision. The Court further noted that, after a full hearing of the appeal, it would be best situated to determine how to dispose of the matter. It could dispose of the appeal simply by stating that it saw no reason to deem the factual findings of the lower court incorrect, or it could examine those findings and articulate a different opinion. Nevertheless, the Court emphasized that it did not wish to prescribe any particular mode of hearing such appeals, because it was not in doubt that the Supreme Court possessed full discretion to hear an appeal on both facts and law. The Court also recalled that, for a similar purpose, it had previously held that the High Court possessed full power to review evidence when hearing an appeal against acquittal under section 423 of the Criminal Procedure Code. Accordingly, the appeal was dismissed.