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PETITIONER: KRISHNA VITHU SUROSHE

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT30/08/1973

BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ ALAGIRISWAMI, A.

CITATION:  1974 AIR  274            1974 SCR  (1) 567  1974 SCC  (3) 404  CITATOR INFO :  R          1976 SC1992  (3)  F          1983 SC1014  (2)  R          1986 SC1070  (2)

ACT: Code  of Criminal Procedure 1898, s. 421-High Court’s  power to dismiss appeal in limine.

HEADNOTE: The  appellant was convicted of murder by the  Trial  Court. He  appealed to the High Court contending, inter alia,  that he had not been mentioned as an offender by. two of the eye- witnesses  of the occurrence.  The High Court dismissed  the appeal in limine. Allowing the appeal to this Court, HELD  :  It  is  true that under s.  421  Code  of  Criminal Procedure  Code  the  High Court can dismiss  an  appeal  in limine  if, on a perusal of the petition of appeal  and  the judgment appealed from, it were to form the view that  there was no sufficient,reason for its interference.  At the  same time,  it is now settled law, repeatedly laid down  by  this Court  in a series of decisions, that the High  Court  would not  be  justified  in dismissing summarily  and  without  a speaking  order  an appeal which raises  arguable  questions either an points of law or on points of fact. [569A] In  the present case the appellant had an arguable case  and the High Court was not justified in dismissing summarily the appeal of the appellant. Shaikh Mohd.  Ali v. State of Maharashtra, A.I.R. 1973  S.C. 43  and  Kapurchand Kesrimal Jain v. State  of  Maharashtrq, A.I.R. 1973 S.C. 243, applied. Chittaranjan  Das v. State of West Bengal, [1964]  3  S.C.R. 237, hold inapplicable.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 96 of 1973. Appeal  by special leave from the judgment and, order  dated 4th  December,  1972 of the Bombay High Court at  Bombay  in Criminal Appeal No. 1439 of 1972.

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Y.   S.  Chitle  Y.  N. Ganpule and P.  C.  Kapur,  for  the appellant, H. R. Khanna and M. N. Shroff, for the  respondent The Judgment of the Court was delivered by KHANNA,  J.  Janardhan  Narayan Suroshe  and  Krishna  Vithu Suroshe  were convicted, by, the Additional  Sessions  Judge Thana under section 302 Indian Penal Code on the  allegation that  they had caused the death of Bhaskar Narayan  Suroshe. Each of them was sentenced to undergo imprisonment for life. Krishna  Vithu Suroshe filed an appeal against the  judgment of  the trial court but the same was dismissed summarily  by the  Bombay  High Court.  Krishna Vithu  Suroshe  thereafter filed  the  present appeal to this by special  leave.At  the time  the leave was granted it was directed that the  appeal would  be  limited only to the ground wherein  it  had  been stated  that  the High Court should not have  dismissed  the appeal in limine. 568 Bhaskar Narayan Suroshe was the brother of Janardhan Narayan Suroshe accused.  The houses of Bhaskar Narayan Suroshe  and Janardhan Narayan Suroshe are situated in village Raite  and there  intervenes a small lane between the two  houses.   On March  24,  1972  at about 9 p.m., it  is  stated,  the  two accused started abusing Bhaskardeceased.  Bhaskar then  came to the kitchen of his house and standing in the door of  the kitchen he also abused the accused.  The exchange of  abuses went  on  for  about  10-15  minutes.   Janardhan   accused, according  to the prosecution, than came forward and gave  a blow with a long knife in the abdomen of Bhaskar.  Janardhan also tried to pull Bhaskar.  Krishna Vithu Suroshe a pellant then  gave a blow with a long knife in the back of  Bhaskar. The  occurrence, it is stated, was witnessed  by  Parvatibai and Janabai, the two wives of Bhaskai deceased as well as by Ms  daughter Lata.  Pandurang, servant of Bhaskar, was  also attracted   to  the  place  of  occurrence.    Bhaskar   was thereafter taken in a cart to Govili dispensary.  The doctor incharge  of the dispensary advised that Bhaskar  should  be removed to the hospital.  Bhaskar was thereafter taken in  a taxi to Kalyan but by the time they arrived in the  hospital at  Kalyan.  Bhaskar was declared to be dead.  Report  about the  occurrence  was lodged by Parvatibai at  Kalyan  police station at 11.45 p.m. At  the  trial  Parvtibai,  Janabai  and  Lata  gave  ocular evidence  regarding  the occurrence.  The appellant  in  his statement  under  section  342 Code  of  Criminal  Procedure denied  his  presence  at the scene of  occurrence  and  his participation in the assault on Bhaskar deceased.  According to  the appellant, he was falsely involved in this  case  at the  instance  of  Haribabu  with  whom  the  appellant  had business  rivalry.  Haribabu is another brother  of  Bhaskar deceased. The  trial  court accepted the prosecution  allegations  and convicted and sentenced the accused as mentioned earlier. Mr.  Chitale on behalf of the appellant has urged before  us that the appeal filed by the appellant before the High Court raised  arguable and substantial points and the  High  Court *as  not justified in dismissing the appeal in limine.   The learned counsel in this connection has invited our attention to that part of the judgment of the trial court which  deals with the evidence of Janabai and Lata PWs.  It would  appear from  the judgment of the trial court that Janabai and  Lata only  saw  the  infliction of the blow on  the  deceased  by Janardhan  accused.   Janabai and Lata did not  see  Krishna Vithu  Suroshe appellant at the time of the occurrence  much less did they see the appellant inflicting knife blow on the

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back of Bhaskar deceased.  The evidence of Janabai and Lata, it  is  urged,  creates  considerable  doubt  regarding  the correctness of the statement of Parvatibai in so far as  she has stated that the appellant too was present at the time of the  occurrence  and  he gave a knife blow in  the  back  of Bhaskar deceased.  It is also pointed out that the injury on the back of the deceased could also be caused with the  same weapon with which Janardhan gave the blow in the abdomen  of the deceased. 569 In  our opinion the appellant had an arguable case  and  the High  Court  was not justified in dismissing  summarily  the appeal of the appellant.  It is that under section 421  Code of  Criminal Procedure the High Court can dismiss an  appeal in limine if on a perusal of the petition of appeal and  the judgment  appealed from it were to form the view that  there was no sufficient reason for its interference.  At the  same time,  it is now settled law, repeatedly laid down  by  this Court  in a series of decisions, that the High  Court  would not  be  justified in dismissing. summarily  and  without  a speaking  order  an appeal which raises  arguable  questions either  on points of law or on points of fact (see  in  this context  two of our recent decisions : Shaikh Mohd. ‘Ali  v. State  of  Maharashtra(1) and Kapurchand  Kesrimal  Jain  v. State of MaharaShtra(2). Mr. Khanna on behalf of the State has invited our  attention to  the decision of this Court in Chittaranjan Das v.  State of West Bengal(3).  There is nothing in this judgment  which runs counter to the view expressed by this Court in the  two cases  mentioned  earlier  by us.  What  was  laid  down  in Chittaranjan  Das’s  case  was that the High  Court  is  not justified in granting a certificate of fitness for appeal on the  ground  that the, criminal appeal  had  been  dismissed summarily. We, therefore, accept the appeal, set aside the order of the High  Court dismissing the appeal in limine and direct  that the appeal be disposed of in due course according to law. G.C. Appeal allowed. (1) A. T. R. 1973 S. C. 43.  (2) A. T. R. 1973 S. C. 243.  (3) [1964] 3 S.C.R. 237. 570