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PETITIONER: NARAYAN SWAMI

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT: 26/10/1967

BENCH: VAIDYIALINGAM, C.A. BENCH: VAIDYIALINGAM, C.A. BHARGAVA, VISHISHTHA

CITATION:  1968 AIR  609            1968 SCR  (2)  88  CITATOR INFO :  E          1970 SC 997  (8)  R          1970 SC1033  (3)  F          1973 SC 278  (3)  R          1973 SC2187  (8)

ACT: Practice--High Court Criminal appeal raising substantial and important  questions-Summary  dismissal by High  Court  --If justified.

HEADNOTE:  During  the  trial  for an offence of dacoity  one  of  the witnesses  gave  false  evidence,  and  stated,  on  further examination,  that  he did so at the instance  of  the  Sub- inspector who investigated the case.  The Court gave  notice to  the Sub-inspector to show cause why a  complaint  should not be laid against him for offences under ss. 195, 196  and 205  I.P.C.  and he appeared and showed  cause.   After  the trial, and at the time of delivering judgment in the dacoity case  the  Court found that the  witness  had  intentionally given   false  evidence  and  that  the  Sub-inspcctor   had intentionally  fabricated  false  evidence,  and  thereafter filed a complaint against them before the Joint  Magistrate. They  were  committed to the Sessions Court  to  take  their trial for offences under ss. 195, 196 and 34 I.P.C. as first and  second accused respectively.  The Sessions Judge  found them guilty.  The Sub-inspector (second accused) appealed to the  High Court and contended that : (1) the Sessions  Judge had  committed a gross illegality in relying as against  the second accused, upon the evidence of the first accused as  a witness  in the earlier dacoity case, and the  statement  of the first accused under s. 342 Cr.  P.C. before the Sessions Judge; and (2) the show cause notice was not sufficient com- pliance  with  the provisions of s. 479A, Cr.  P.C.  as  the notice  should  have been given after the  judgment  in  the dacoity case.  The High Court dismissed the appeal summarily in one word ’dismissed’, without discussing the questions of law  and without considering whether there was  ,.sufficient other evidence to convict the appellant. In appeal by the Sub-inspector to this Court, HELD  :  The appeal before the High Court, was  an  arguable one, and it also raised substantial and important  questions

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for  consideration  by the High Court.  The High  Court  was therefore not justified in dismissing the appeal  summarily. [94C] Mushtak  Hussein  v.  State of  Bombay.  [1953]  S.C.R.  809 Shreekantiah Ramyayya Munipalli v. state of Bombay [1955]  1 S.C.R.  1177  and Chittaranjan Das v. State of  West  Bengal [1964] 3 S.C.R. 237 followed.

JUDGMENT: CRIMINAL AAPPELLATE JURISDICTION: Criminal Appeal No.165  of 1967. Appeal by special leave from the order dated April 27,  1967 of  the Bombay High Court, Nagpur Bench in  Criminal  Appeal No. 74 of 1967. W.   S. Barlingay and A. G. Ranaparkhi, for the appellant. H.   R. Khanna and S. P. Nayar, for the respondent. 89 The Judgment of the Court was delivered by Vaidialingam, J. The appellant, who was the second  accused, in  Sessions  Case No. 9 of 1967, and accused  No.  1,  were found  guilty,  under  s. 195 and s. 196 read  with  S.  34, I.P.C. and each of them has been convicted and sentenced  to undergo  three  years’  rigorous  imprisonment,  for   these offences  and  the  sentences  have  been  directed  to  run concurrently.  The case of the first accused, is not  before us, in these proceedings. The appellant challenged his conviction and sentence, passed against  him, before the High Court of Bombay,  in  Criminal Appeal  No. 74 of 1967.  A Division Bench of the High  Court has, by its order dated April 27, 1967, summarily  dismissed the appeal, in one word ’dismissed’.  The appellant has come up, to this Court, by special leave.  But this Court, by its order  dated September 7, 1967, has granted  special  leave, limited  to  the question as,to whether the High  Court  was justified in dismissing the appeal, summarily.  That is  the only point, that arises for consideration, in this appeal. It is necessary, to set out briefly, the circumstances under which the appellant, who was, a police Sub-Inspector,  along with one Dilawar, who was accused No. 1, came to be charged- sheeted  and  tried,  in Sessions Case No. 9  of  1967.   In connection  with a dacoity, which is alleged to  have  taken place,  on  July 18, 1965, when the Bombay-Howrah  Mail  was stopped, at the outer signal of Nagpur Railway Station,  one Ambadas  and  Deorao, and certain  others,  were  prosecuted before  the Additional Sessions Judge, Nagpur,  in  Sessions Case  No. 8 of 1966.  In that trial, the prosecution had  to prove certain recoveries made, on the basis of three  memos, which  have been marked, in the present Sessions  Trial,  as Exhibits 7, 8 and 14.  Those memos had been attested by  two Panch  witnesses, Pochanna and Abdul Gani.  Pochanna  turned hostile  and, therefore, the prosecution tried to  establish the  recoveries made, under these memos, by the other  Panch witness.   Abdul  Gani.  The first accused, in  the  present Sessions trial, gave evidence, on June 10, 1966, in Sessions Case  No. 8 of 1966, that he is Abdul Gani and that  he  has attested the recovery memos.  The appellant, before us,  was examined in that trial, on June 11, 1966, and he has  stated that the witness, who has spoken to the recovery memos,  was Abdul Gani and that he has attested the recovery memos; but, later  on, the accused in the dacoity case, appear  to  have entertained  a  suspicion that the first accused,  in  these proceedings, who claim to be Abdul Gani and spoke to  having attested the recovery memos, is not the real Abdul Gani, but

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Dilawar.   This suspicion was brought to the notice  of  the Sessions  Judge, trying the dacoity case, on June 14,  1966. The  Sessions  Judge, Sri Waikar, caused the  present  first accused, to be L10Sup.CI/68-7 90 brought  before  him and further examined him,  in  Sessions Case No. 8 of 1966.  The witness appears to have stated that he  was not Abdul Gani, but really Dilwar, and that  he  had come to the Court, on June 10, 1966, and given evidence,  as Abdul  Gani,  on the compulsion and threat  of  the  present appellant. On  the same day, i.e., June 14, 1966, Mr. Waikar  issued  a notice  to  the  appellant, to show cause  why  a  complain+ should not be laid against him, for offences under ss.  195, 196,  and 205, I.P.C. By the said notice, the appellant  was directed to appear before the Court, on June 16, 1966.   The appellant  appeared and pleaded, on June 16, 1966,  that  he had not committed any offence and that he bona fide believed that the present 1st accused was Abdul Gani, and that he had never  compelled one Dilawar to appear before the Court  and give  evidence,  as Abdul Gani The,- appellant  was  further examined, in the dacoity case, on Juno 17, 1966, and he  was also cross-examined, by the accused, in the dacoity case, on  June  22, 1966, the teamed Sessions Judge,  Nagpur,  ac- quitted  all the accused, in the dacoity case.  In the  said judgment,  the  learned Sessions Judge has stated  that  the present  accused No. 1, intentionally gave  false  evidence, and  the appellant intentionally fabricated  false  evidence with the intent to procure conviction of the accused, in the dacoity  case,  and  that it was highly  expedient,  in  the interest  of justice and in the interest of  eradication  of the  evil of perjury and the fabrication of false  evidence, that  both  of them should be  prosecuted.   Thereupon,  the learned  Sessions  Judge filed the  complaint,  against  the appellant and Dilawar, on July 8, 19669 in the, Court of the Joint Magistrate, First Class, IV Court, Nagpur. The Joint Magistrate, by  his order dated January 27,  1967, held  that  a prima facie case, against  both  the  accused, under ss. 195 and 196 read with s. 34, I.P.C., has been made out;  and, accordingly, after framing charges, he  committed them  to  the Sessions Court, to face  trial.   The  learned Sessions  Judge,  Nagpur, by his judgment, dated  March  31, 1967, has found each of the accused, guilty under S. 195 and s.  196  read  with s. 34, I.P.C., and  sentenced  them,  as mentioned earlier. In view of the, fact that special leave has been limited  to the question, as to, whether the, High Court was  justified, in  dismissing  the  appeal,  summarily,  and,  as  we   are satisfied,  after  hearing  arguments,  on  behalf  of   the appellant,  and the State, that the appeal will have  to  be remanded, for fresh consideration, by the High Court, we  do not  propose to deal with the matter very  elaborately.   We will only advert to some of the material circumstances, that have been placed, before us, by the learned counsel, 91 for  the  appellant, to hold that this was certainly  not  a case  in which the, High Court was justified  in  dismissing the appeal, summarily. On behalf of the appellant, learned counsel, Dr.  Barlingay. raised two contentions: (i) that the learned Sessions Judge, in  convicting  the appellant, has relied,  mainly,  on  the evidence,  given by Dilawar, on June 14, 1966,  in  Sessions Trial No. 8 of 1966, and on the statements, made by Dilawar, as  first  accused,  when he was  examined,  under  s.  342,

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Cr.P.C.,  in the present Sessions Trial; and (ii)  that  the provisions of s. 479A, Cr.P.C., have not been complied with, when  Mr.  Waikar  filed  the  complaint,  as  against   the appellant, on July 8, 1966. Mr.  H. R. Khanna, learned counsel, appearing for the  State of  Maharashtra,  on  the other  hand,  submitted  that  the learned  Sessions Judge has considered the question of  non- compliance  with the provisions of s. 479A, Cr.P.C., and  he has  rejected  the appellant’s contention, in  that  regard. Counsel  also pointed out that, apart from the  evidence  of Dilawar,  in Sessions Case No. 8 of 1966, and  his  answers, given as co-accused, in the present Sessions Case, there is, on  record, other evidence, which have also been taken  into account,  by the learned Sessions Judge, for convicting  the appellant.  When the High Court dismissed the appeal, though summarily,  it  must  be presumed that the  High  Court  has agreed  with  the views, expressed by the  learned  Sessions Judge,  in the present judgment.  Therefore,  we  understood counsel to urge that the High Court was perfectly justified, in dismissing the appeal, summarily. There  is no controversy, that the appellant, who  has  been convicted,  on trial, by the Sessions Judge, had a right  of appeal,  to  the  High  Court, under  s.  410,  Cr-P.C.  The appellant  was  also  entitled, under  s.  418  Cr.P.C.,  to agitate,  in his appeal, before the High Court, findings  of fact,  recorded  against  him, as  also  questions  of  law, available  to  him.   No doubt, under S.  421  Cr.P.C.,  the Appellate  Court may dismiss an appeal, summarily, if, on  a perusal  of the petition of appeal, and a copy of the  judg- ment appealed from, it considers that there is no sufficient ground  for  interference.  This section, has  come  up  for consideration, before this Court, in Mushtak Hussein v.  The State of Bombay(1).  This Court has held, therein, that in a case,  which,  prima  facie, raises  no  arguable  issue,  a summary  dismissal of the appeal, may be justified, but,  in arguable  cases,  a summary rejection order must  give  some indication  of the views of the High Court, on  the  point,, raised.   Again, in a case, where the High  Court  summarily dismissed an appeal, in one word ’dismissed’, this Court, in Shreekantiah Ramayya Munipalli V.  The State of Bombay(1) (1)  [1953] S.C. R. 8 19. (2) [1955] 1 S. C.  R. 1177. 92 again   reiterated  the  views  expressed  in  the   earlier decision,  referred  to  above,  and  stated  that   summary rejection  of appeals, which raise issues of  substance  and importance,  was not justified.  After adverting to the  two decisions,  noted above, this Court, again  in  Chittaranjan Das  v. State of West, Bengal(1), laid down that there  ,can be  no  doubt,  whatever,  that  in  dealing  with  criminal appeals,  brought  before them, the High Courts  should  not summarily   reject   them,  if  they  raise   arguable   and substantial  points.  Bearing these principles in view,  the question naturally arises as to whether the appeal filed, by the  appellant, before the High Court of Bombay, raised  any arguable  point,  or  whether  the  questioned  raised  were substantial and important. In  support of the first contention, Dr. Barlingay drew  our -attention  to the discussion, contained in the judgment  of the  learned  Sessions Judge, wherein he has  placed  strong reliance,  upon the evidence, given by Dilawar, in  Sessions Case  No. 8 of 1966.  He has also. drawn our  attention,  to the reliance, placed by the learned Sessions Judge, upon the answers  given  by  Dilawar, -as  co-accused,  when  he  was examined,  under  S.  342  Cr.P.C.  The  evidence  given  by

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Dilawar,  in  the  dacoity  case,  counsel  points  out,  is inadmissible,  in these proceedings.  The answers giver.  by him,  as  co-accused, when examined, under S.  342  Cr.P.C., cannot  be  taken into account, as  against  the  appellant, whatever the position may be, so far as Dilawar himself,  is concerned.  There is no other evidence, counsel points  out, on record, which has been taken into account, by the learned Sessions  Judge.   In  any  ;event,  counsel  urged,   after eliminating  the evidence, given by Dilawar in  the  dacoity case, and the answers given by him, in this trial, the  High Court had to consider whether there was any other  evidence, on  record, which would justify the Sessions  Court  finding the appellant guilty.  By the dismissal of the appeal,  sum- marily,  counsel points out, the High Court has  omitted  to consider  the serious illegality, contained in the  judgment of  the  Sessions Judge, in relying upon  the  evidence  and statement of Dilawar. The  contention  of  the  learned  counsel,  that  a   gross illegality has been committed, by the learned Sessions Judge in  relying  upon  the evidence, given by  Dilawar,  in  the dacoity  case,  and  using the answers given by  him,  as  a accused,  against  the appellant, in our opinion,  is  well- founded.   In  paragraph 5 of its  judgment,  the  Session’s Court has referred to the fact that Dilawar, accused No.  1, admits  all the facts alleged, by the prosecution, and  that he has explained that he gave evidence as Abdul Gani at  the instance  of  the  appellant.  In  considering,  again,  the question  as to whether the appellant knew accused No. 1  as Dilawar or Abdul Gani, the learned Sessions Judge, in (1)  [1964] 3 S.C.R. 237.  93 paragraph  20, refers to the statement of  Dilawar,  wherein he.  refers to the circumstances, under which the  appellant compelled  him  to come to, the Court and  pose  himself  as Abdul  Gani.   The learned Sessions Judge  also  refers,  in paragraph  21 of his judgment, that Dilawar has made a  very clean  breast of the whole matter, when he, was examined  by Mr.  Waikar,  on June 14, 1966, in the  dacoity  case.   The learned Sessions Judge also refers to the fact that  Dilawar has  given a consistent version throughout, inculpating  the appellant,  both in his evidence in Sessions Case No,. 8  of 1966,  as  well as in his statement given,  in  the  present Sessions  Trial.  We are not referring to the various  other points, adverted to, by the learned Sessions Judge.  We have adverted to the above circumstances, only for the purpose of holding  that the learned Sessions Judge, in coming  to  the conclusion   that  the  appellant  is  guilty,  has   placed considerable  reliance on the evidence of Dilawar, given  in the  dacoity case and to his statements, made: under S.  342 Cr.P.C.,  as  co-accused, in the present trial.   The  legal position is quite clear, viz., that the evidence,, given  by Dilawar,  in  the dacoity case, cannot be used  as  evidence against  the  appellant, who, had no opportunity  to  cross- examining  Dilawar, in the said case; and the statements  of Dilawar,  as co-accused, made under S. 342 Cr.P.C.,  in  the present trial, cannot be used against the appellant.  We are not  certainly  inclined  to accept the  contention  of  the learned  counsel,  for the State, that  these  very  serious illegalities, committed by the learned Sessions Judge,  must be considered to have been, approved, by the learned  Judges of   the  High  Court,  when  they  dismissed  the   appeal, summarily.   In  fact, we are inclined to  think,  that,  by dismissing  the appeal summarily, the learned Judges of  the High Court have omitted to note these serious  illegalities, contained in the judgment of the learned Sessions Judge.  As

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to  whether there is other evidence, on record, which  would justify  the conclusion that the appellant has been  rightly convicted, is not a, matter on which it is necessary for  us to  embark upon, in this,, appeal.  That is essentially  for the  High Court, as a Court of appeal, to  investigate,  and come to a conclusion, one way or the other. The second contention, urged by the learned counsel, for the appellant, is also, in our opinion, a very substantial  one. According  to  the learned counsel, after the  judgment  was delivered, in the dacoity case, on June 22, 1966, and before the  complaint  was filed, by Mr. Waikar, on July  8,  1966, against  the  appellant,  the appellant  was  not  given  an opportunity  of being heard, as required under S. 479A,  Cr. P.C.  This  contention  has been raised,,  even  before  the Committing  Magistrate,  as a perusal of the order  of  that Magistrate,  will  show.  This objection, was  again  taken. before  the. learned Sessions Judge.  The  learned  Sessions Judge 94 has  taken the view that the show cause notice,  issued.  by Mr.  Waikar,  to  the  appellant, on June  14,  1966,  is  a sufficient  compliance with the provisions of that  section. The  learned Sessions Judge is also of the view that,  under s.  479A,  Cr.P.C., it does not matter whether a  notice  is given  before  the finding is recorded in the  judgment,  or whether the notice is given, after the findings are recorded in the judgment.  The question, as to whether the  appellant has  been  given an opportunity, of being  heard,  under  s. 479A, is again, not only in our opinion, an arguable  point, but also a substantial and important one. The discussion, contained above, will clearly show that  the appeal,  filed  by the appellant, before the High  Court  of Bombay  was an arguable one, and it also raised  substantial and  important questions, for consideration at the hands  of the  High Court.  We are therefore satisfied that  the  High Court was not justified, in dismissing the appeal, filed  by the appellant, summarily. In  view  of this conclusion, the order of the  High  Court, dated  April  27, 1967, dismissing Crl.  Appeal  No.  74  of 1967,  is set aside, and the said appeal is remanded to  the High  Court,  for  fresh  disposal,  in  the  light  of  the observations,  contained in this judgment.  This  appeal  is allowed, accordingly. V.P.S.                        Appeal allowed and remanded.