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PETITIONER: GOVINDA KADTUJI KADAM & ORS.

       Vs.

RESPONDENT: THE STATE OF MAHARASHTRA

DATE OF JUDGMENT: 09/02/1970

BENCH: DUA, I.D. BENCH: DUA, I.D. RAY, A.N.

CITATION:  1970 AIR 1033            1970 SCR  (3) 525  1970 SCC  (1) 469  CITATOR INFO :  F          1971 SC  64  (2)  R          1971 SC1606  (19)  R          1973 SC 243  (4,5)  RF         1974 SC 745  (75)  D          1974 SC1150  (2)  R          1981 SC1218  (1)  RF         1983 SC1014  (2)  R          1986 SC1070  (2)

ACT: Code  of Criminal Procedure, (5 of 1898) &  417-High  Court- Appeal-Summary  dismissal-Duty to indicate views  on  points raised.

HEADNOTE: The  four  appellants along with K, were jointly  tried  and convicted  for offences under s. 147 IPC.  They all  jointly appealed to the High Court by one memorandum of appeal.  The High Court admitted the appeal on behalf of K, and dismissed in limine the appeal on behalf of the appellants. In appeal to this Court, the appellants challenged the order dismissing  in limine the appeal on their behalf,  when  the appeal of K, co-accused, was admitted for hearing on  merits after notice to the State. HELD : When an appeal in the High Court raises a serious and substantial  point  which  is prima  facie  arguable  it  is improper  for  that court to dismiss  it  summarily  without giving  some  indication of its view on the  points  raised. The interest of justice and fairplay require the High  Court in  such  cases to give an indication of its  views  on  the points argued so that this Court, in the event of an  appeal from that order being presented here, has the benefit of the High Court’s opinion on those points. [527F] This was an eminently fit case in which, while admitting K’s appeal,  the  appeal on behalf of the  appellants  was  also admitted  so that the appeals of all the five accused  could be considered together.  If K’s defence was upheld, then the case  against  the  appellants would  also  require  serious consideration.  The evidence on the record would have to  be scrutinised at least for determining how far the case of the appellants is distinguishable from that of K. The charge  of

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rioting  under  s.  147 IPC could only be  sustained  if  an unlawful  assembly  was held to have been formed.   It  was, therefore, more appropriate to consider the case of all  the accused  together on appeal.  On this ground also the  order of the High Court. is open to objection. [528 G] Mushtak  Hussein v. The State of Bombay, [1953] S.C.R.  809; Shreekantiah  Ramayya  Munipalli  v. The  State  of  Bombay, [1955]  2  S.C.R. 1177; Chittaranjan Das v.  State  of  West Bengal,  [1964]  3  S.C.R. 237; Ncrayan Swami  v.  State  of Maharashtra, AIR 1968 SC 609; Jeewan v. State of  Rajasthan, Crl.  A. No. 274 of 1968 decided on 18-12-1968; Sakha Ram v. State  of Maharashtra, Crl.  A. No. 258 of 1968  decided  on 22-4-69, referred to.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 188 of 1969. Appeal by special leave from the order  dated  June 9,  1969 of  the Bombay High Court, Nagpur Bench in  Criminal  Appeal No. 109 of 1969. W.   S.  Barlingay, N. K. Kherdekar and A.  G.  Ratnaparkhi, for the appellants. G.   L.  Sanghi, Badri Das Sharma and S. P. Nayar,  for  the respondent. 526 The Judgment of the Court was delivered by Dua, J. The four appellants, along with Kondu son of  Anibu, were  jointly  tried  in the court  of  Additional  Sessions Judge, Akola on the following charges : "That  you all accused nos.  1 to 5 on or about 12th day  of               November, 1967 at about 5-45 a.m. near  Farshi               on  Risod  Nazampur Road, formed  an  unlawful               assembly  and  in prosecution  of  the  common               object  of  such  assembly viz.  :  to  commit               murder  of  complainant  Vithalrao   Khanderao               Deshmukh  or  in  order  to  cause  murder  of               Vithalrao  or grievous hurts to him  committed               the  offence of rioting and thereby  committed               an offence punishable under Section 147 of the               Indian Penal Code and within the cognizance of               this Court. That you all on the same date, time and place, were  members of  unlawful  assembly, in prosecution of common  object  of which  viz.  :  to commit murder of Vithalrao  or  to  cause grievous  hurt to him, one or all you caused grievous  hurts to  him which offence you knew to be likely to be  committed in prosecution of the common object of the said assembly you are  thereby  under  section 149 of the  Indian  Penal  Code guilty  of  causing  of the said  offence  punishable  under Section  307  of  the  Indian  Penal  Code  and  within  the cognizance of this Court. That  you all on the same date, time and place attempted  to cause murder of Vithalrao Deshmukh, in furtherance of common intention and thereby committed an offence punishable  under Section  307 read with Section 34 of the Indian  Penal  Code and within the cognizance of this Court." The  order of the trial court convicting them all  concludes thus: "All  the  five  accused are convicted for  the  offence  of rioting punishable under Section 147, Indian Penal Code  and each is sentenced to rigorous imprisonment for the period of six  months and to a fine of Rs. 501-, in default,  rigorous imprisonment for two weeks for that offence.

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accused shall surrender to their bail." They all jointly appealed to the High Court of Bombay by one memorandum  of appeal.  Chandurkar, J., admitted the  appeal only  on behalf of Kondu and dismissed in limine the  appeal on 527 behalf  of the four -appellants before us.  The  only  point which  concerns this Court in the present appeal by  special leave relates to the correctness of the order dismissing  in limine the appeal on behalf of the four appellants, when the appeal  on  behalf  of Kondu, co-accused  was  admitted  for hearing on the merits after notice to, the State. We  may at the outset point out that though on appeal  under 410,  Cr.P.C.  by a person convicted at a trial  held  by  a Sessions judge or an Additional Sessions Judge the appellant is  entitled  under  s. 418 of the  Code  to  challenge  the conclusions  both  on  facts and of law and  to  ask  for  a reappraisal  of  the  evidence,  the  appellate  court   has nevertheless full power under s. 421, Cr.P.C. to dismiss the appeal in limine even without sending for the records, of on perusal of the impugned order and the petition of appeal  it is  satisfied  with the correctness of  the  order  appealed against.   This  power,  it may be  emphasised,  has  to  be exercised after perusing the petition of appeal and the copy of  the  order appealed against and after affording  to  the appellant or his pleader a reasonable, opportunity of  being heard  in  support of the appeal.  The summary  decision  is accordingly  a judicial decision which vitally affects  the, convicted  appellant  and in a fit case it is also  open  to challenge  on  appeal  in this Court.   An  order  summarily dismissing an appeal by the word "rejected", as is the  case before us, though not violative of -any statutory  provision removes nearly every opportunity for detection of errors  in the order.  Such an order does not speak and is  inscrutable giving no indication of the reasoning underlying it. It  may at  times  embarrass  this Court  when  the  order  appealed against prima facie gives rise to arguable points which this Court is required to consider without having the benefit  of the  views  of  the  High Court on  those  points.   In  our opinion, therefore, when an appeal in the High Court  raises a  serious  and  substantial  point  which  is  prima  facie arguable  it  is  improper for that  Court  to,  dismiss  it summarily without giving some indication of its view on  the points raised.  The interest of justice and fairplay require the,  High Court in such cases to give an indication of  its views on the points argued so that this Court, in the  event of  an appeal from that order being presented here, has  the benefit of the High Court’s opinion on those points. The  question of summary dismissal of criminal  appeals  has come  up  for  consideration before this  Court  on  several occasions  and broad principles have been stated  more  than once.   In  Mushtak  Hussein  v.  The  State  of  Bombay(1), Mahajan, J., (as he then was) speaking for the Court said at p. 820 : "With great respect we are, however, constrained to  observe that it was not right for the High Court to have (1)  [1953] S.C.R. 809. 528 dismissed  the  appeal preferred by the  appellant  to  that court  summarily,  -as  it certainly  raised  some  arguable points  which  required  consideration though  we  have  not thought  it  fit to deal with all of them.  In  cases  which prima  facie  raise  no arguable issue that  course  is,  of course, justified, but this court would appreciate it if  in arguable  cases  the  summary  rejection  order  gives  some

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indication  of  the views of the High Court  on  the  points raised.   Without  the  opinion of the High  Court  on  such points  in  special leave petitions under Art.  136  of  the Constitution  this Court sometimes feels embarrassed  if  it has  to deal with those matters without the benefit of  that opinion." In Shreekantiah Ramayya Munipalli v. The State of  Bombay(1) and  in  Chittaranjan Das v. State of West Bengal  (2)  this Court, approved the remarks made in Mushtak Hussein’s case ( 3 ) . Again. in Narayan Swami v. State of Maharashtra ( 4  ) this  Court, after referring to the earlier three  decisions of  this  Court, emphasised that the High Court  should  not summarily reject criminal appeals if-they raise arguable and substantial points.  Still more recently in Jeewan v.  State of  Rajasthan (5) this Court disapproved summary  -rejection of the appeal by the High Court and in Sakha Ram v. State of Maharashtra(6)  this  Court reiterated the view that  it  is desirable for the High Courts when dismissing the appeals in limine to deal with each point urged before them for holding that  it  is not -necessary to send for the records  and  to give  notice to the State for finally hearing and  disposing of the appeal. In  the  present case the defence of Kondu accused  is  that Vithalrao,  the injured person, has sustained the injury  by falling  on a stone while chasing him (Kondu) and his  other companions.  If that defence is upheld then the case against the  four  appellants in this Court would, in  our  opinion, also  require  serious consideration.  The evidence  on  the record would have to be scrutinised at least for determining how  far the case of the present appellants is  distinguish- able  from  that of Kondu, accused.  It was,  therefore,  an eminently fit case in which, while admitting Kondu’s appeal, the  appeal  on behalf of the present  appellants  was  also admitted  so that the appeals of all the five accused  could be considered together.  It may be recalled that the  charge of  rioting under s. 147, I.P.C. could only be sustained  if an  unlawful assembly is held to have been formed.  It  was, therefore, more appropriate to consider the case of all  the accused together on appeal.  On this ground also the (1)[1955]  2  S.C.R. 1177. (2) [1964] 3 S. C.  R.  237. (3)  [1953] S.C.R. 809. (4) A. 1. R. 1968 S.C. 609. (5)  Cr. A. No. 274 of 1968 decided on 18.12.68. (6)  Cr. A. No- 258 of 1968 decided on 22.4.69. 529 order  of  the High Court is open to  objection.   Even  the counsel for the State before us after making a faint attempt to  justify  the  impugned  order had, it  may  be  said  in fairness  to him, to concede that the order of dismissal  in limine of the appeal on behalf of the four appellants is, in the circumstances, insupportable. The appeal is allowed and the order dismissing in limine the appeal of the four appellants before us is set aside and the case is sent back to the High Court for hearing their appeal with the record after giving notice to the State, along with the  appeal  of  Kondu,  accused.   We  would  perhaps  have persuaded  ourselves  to go into the merits of the  case  as this  Court has sometimes done, but since Kondu’s appeal  is pending  in  the  High  Court it seems  to  us  to  be  more appropriate and just that the entire appeal is heard by that Court  on the merits.  As the sentences imposed  -are  short the  High Court, we have no doubt, would try to  dispose  of the appeal as speedily as possible.  It may be observed that the  counsel for the appellants in this Court made  an  oral

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prayer for their release on bail.  But as the case is  being remitted to the High Court for considering the appeal of all the  five accused persons on merits it would be open to  the appellants-if so advised-to apply to the High Court for bail which prayer would be considered according to law. Y.P. Sup.Cl/70--4 Appeal allowed.. 530