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PETITIONER: MUNIR SAYED IBNA HUSSAIN

       Vs.

RESPONDENT: THE STATE OF MAHARASHTRA & ANR.

DATE OF JUDGMENT12/11/1975

BENCH: BEG, M. HAMEEDULLAH BENCH: BEG, M. HAMEEDULLAH GOSWAMI, P.K.

CITATION:  1976 AIR 1992            1976 SCR  (2) 687  1976 SCC  (3) 548

ACT:      Sec 421  of Criminal  Procedure Code-Practice  of  High Court in  dismissing criminal  appeals  without  giving  any reasons  disapproved-Power   of  High  Court  to  dismiss  a Criminal appeal in limine.

HEADNOTE:      The appellant  an owner of a hotel was prosecuted along with five  others for forcibly dispossessing the complainant who  was   the  Manager   of  the   Hotel  and  further  for misappropriating certain  properties  including  some  money belonging to  the complainant.  According to  the appellant, the complainant  was merely  a  licensee.  The  Trial  Court acquitted accused  Nos. 3  to 6  and convicted accused No. 1 and 2.  The High  Court admitted the appeal of accused No. 2 and acquitted him. The appeal of the appellant accused No. 1 was, however,  rejected by  the High Court it limine without giving any reasons for the rejection.      On an appeal by Special Leave, ^      HELD: 1.  There is  a whole  catena of cases which have come up  to this  Court from  the Bombay High Court in which this Court  has consistently  disapproved  of  the  practice followed by the Bombay High Court of not giving reasons when exercising  its  power  of  summary  dismissal  of  criminal appeals which  lie both  on questions  of fact  and law.  In other High  Courts such  appeals are automatically admitted. The power  of summary  rejection under  section 421  of  the Criminal Procedure  Code should  be only  exercised when the Court is  satisfied from  a, perusal of the judgment as well as  the  record  that  there  is  absolutely  no  reasonable possibility of  its success  for reasons  to be mentioned in the order  of dismissal.  In the present case, it cannot be- said that  there are  no arguable points. It is difficult to believe that  the judgments  of this court have neither come to the  knowledge of the Bombay High Court nor were cited on behalf of’  the appellant  In any  case, the law having been declared by  this Court,  it is  the duty of the Bombay High Court  to   act  in  accordance  with  Article  141  of  the constitution and  to apply  it by  giving proper  reasons to justify whatever  be its  view. The  judgment of  the Bombay High Court  was set  aside and it was directed that the case

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should, be  treated as  admitted for  regular hearing in she Bombay High  Court and  should be  disposed of in accordance with law. [688-C, E, F, G, 689-AB] F

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 191 of 1971.      (Appeal by special leave from the judgment and order of the Bombay High Court dated 25-2-1972 in criminal appeal No. 683 of 1971.)      M/s. M. K. Ramamurthi & Co. for the appellant.      M. N. Shroff and Vineet Kumar, for the respondents.      The Judgment of the Court was delivered by      BEG, J. The allegations, on questions of fact raised in the appeal  now before  us, were quite unusual. The judgment of a  Division Bench of the High Court of Bombay in Criminal Appeal No.  683 of  1971, in  respect of  coaccused Syed Ali Naki Hade  Hasan, who  was acquitted on 25-2-1972, shows the nature of the allegations made by the prosecutor 688 in this  case. On  those allegations, it became necessary to consider whether  the accused,  who had  been put  on  trial together with  six others,  was actually  in possession of a Hotel. The  appellant claimed  to be the owner of a hotel of which Jagannath,  complainant, was  said to  be the manager. The case  of the  Manager was  that he  had been  forcefully dispossessed by  the accused  and  that  certain  properties belonging to him and others, including some money, were mis- appropriated by  the   accused. Therefore, the appellant and five others were charged under Section 395 Indian Penal Code as well  as under  Section 452  read with  Section 34 I.P.C. According to  the accused,  Shri Jagannath  and his brother, the complainant,  were only  licensees. However,  these  are questions relating  to the  merits of  a case  in which  the Trial Court  had acquitted  accused numbers  3 to  8 and the High Court  acquitted accused  No. 2. The appeal of the only remaining accused,  accused No.  1,  who  is  the  appellant before us  by special leave was, however, rejected in limine by the  High  Court  without  giving  any  reasons  for  the rejection.      There is  a whole  catena of  cases which  have come up here from  the Bombay  High Court  in which  this Court  has consistently disapproved  of the  practice followed  by  the Bombay High  Court of not giving reasons when exercising its power of  summary dismissal  of criminal s appeals which lie both on  questions of  fact and  law. In  other High Courts, such appeals  are automatically admitted. In any case, it is not  possible   for  this   Court  to  exercise  its  powers satisfactorily without  giving an appellant, who may have an arguable case,  an opportunity  of first presenting his case to the High Court and getting a decision from it.      The power  of a  summary rejection  of a  criminal  1st appeal, even  though it  is exercisable under the provisions of Section  421 Criminal  Procedure  Code,  should,  in  our opinion, be only exercised when the Court is satisfied, from a perusal  of the judgment as well as the record, that there is absolutely  no reasonable  possibility of its success for the reasons  mentioned in  the order.  In a case such as the one now  before us, it cannot be said that there are no such arguable  points   that,  after   the  High   Court  had  an opportunity of  fully considering both sides of the case, it must necessarily  dismiss the  appeal.  At  least,  in  such cases, where  there are  arguable  points,  the  High  Court

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should give  its grounds  and  reasons  in  support  of  its decision to  reject summarily  on some  absolutely clinching ground. This  Court has  laid down  the duty  upon the  High Court to  record reasons. (See: Mushtak Hussein v. The State of Bombay (13; Krishna Vithu Surosha v. State of Maharashtra (2); Mustaq  Ahmed Mohmed  Hussain &  Anr. v.  The State  of Gujarat(3);  Kapurchand   Kesrimal  Jain  v.  The  State  of Maharashtra(4) .      It is difficult to believe that judgments of this Court have neither  come to the knowledge of the Bombay High Court nor were  cited on behalf of the appellant. In any case, the law having  been declared  by this  Court, it is the duty of the Bombay High Court to act in accord      (1) [1955] SCR 809.          (2) [1974] (3) S.C.C. 404.      (3) [1973] (1) S.C.C. 702.   (4) [1973] (3) S.C.C. 299. 689 ance with Article 141 of the Constitution and to apply it by giving proper reasons to justify whatever be its view.      Accordingly, we  allow the  appeal and  set  aside  the order of  the High  Court rejecting the appeal summarily and order that  the case will be treated as admitted for regular hearing of both sides by the Bombay High Court, and disposed of in accordance with the law. ,, P.H.P.                                       Appeal allowed. 690