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PETITIONER: MUSTAQ AHMED MOHED HUSSAIN MUKHTAR HUSSAIN ALI HUSSAIN

       Vs.

RESPONDENT: THE STATE OF GUJARAT

DATE OF JUDGMENT13/03/1973

BENCH: DUA, I.D. BENCH: DUA, I.D. ALAGIRISWAMI, A. VAIDYIALINGAM, C.A.

CITATION:  1973 AIR 1222            1973 SCR  (3) 670  1973 SCC  (1) 702  CITATOR INFO :  R          1973 SC2187  (8)  R          1973 SC2288  (6)  RF         1976 SC1992  (3)  F          1983 SC1014  (2)  R          1986 SC1070  (2)

ACT: Code  of  Criminal Procedure s. 421-Power of High  Court  to dismiss  appeal in limine-When may be exercised--High  Court must  record  reasons  and  it  is  not  sufficient  to  say ’dismissed’.

HEADNOTE: In this appeal by special leave the short question requiring determination  was  whether the High Court  of  Gujarat  was justified in dismissing in limine with one word  ’dismissed’ the  appellants’  appeal  against their  conviction  by  the Sessions Judge, Jamnagar for offences under s. 420 read with ss.  511  and 34, I.P.C. and under s. 474 read with  s.  34, Indian Penal Code. Allowing the appeal, HELD:Section  421  Cr.P.C. no doubt empowers  the  appellate court to dismiss the appeal summarily but before doing so it is  bound to peruse with care and attention the petition  of appeal  and  the  copy of the  judgment  or  order  appealed against.  The order of summary dismissal can be passed  only if  the court considers that there is no  sufficient  ground for  interference.   This conclusion has to  be  arrived  at judicially after a proper scrutiny of the petition of appeal and the impugned judgment or order. [673G] The  power  of  dismissing  appeals  in  limine  should   be exercised sparing and with judicious caution so that no case raising arguable points, whether of law or of fact requiring re-appraisal. of evidence, goes without requisite  scrutiny. The requirement of recording reasons for summary  dismissal, however concise, serves lo ensure proper functioning of  the judicial   process.   Reasons  are,   therefore.   advisedly required  by  the decisions of this Court to  be  given  for rejecting an appeal summarily under s. 421 Cr.  P. C. [674D] The  contention  that when the trial court  records  a  well reasoned judgment, then, even though arguable points on  the

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question of the credibility of witnesses are raised, it is unnecessary  for the court of appeal to deal with all  these points  and  record Its own reasons for  agreeing  with  the conclusions  of the trial court, was  unacceptable.   Unless the challenge can be held to be prima facie unimpressive and unarguable  the High Court would be well-advised to go  into the points canvassed and record its reasons.  Such a  course would  be in accord with the statutory intendment, and  also of  assistance to this Court in more satisfactorily  dealing with appeals under Art. 136 of the Constitution. [677D] In  the  present case the trial court’s  judgment  mentioned several  discrepancies  in the  prosecution  evidence.   The appellants  were  not unjustified in claiming to  ;have  the evidence  on  the record re-examined by the High  Court  for coming  to  its own conclusions.  The points raised  in  the petition  of  appeal  could  by  no  means  be  said  to  be unarguable. 671 Without expressing any opinion on the merits of the case the Court  sent  the  case back to the High Court  for  a  fresh decision in the light of this Court’s observation. U.  J.  S.  Chopra  v. State  of  Bombay,  [1955]  2  S.C.R. 94,Queen  Empress v. Ram Narain & anr., I.L.R. 8  All.  514, Mohammad  Ayub Abbas Raut v. The State of Maharashtra,  Crl. A.  No.  145  of 1961 decided on  March  25,  1963,  Mushtak Hussain  v.  The State of Bombay [1953] S.C.R.  809,  Bhagat Singh  v.  State  of, Rajasthan, Crl.  A.  No.  38  of  1969 decided  on September 17, 1969, Shankar Beldar v. The  State of Maharashtra, Crl.  A. No. 95 of 1969 decided on September 18,  1969,  K. K. Jain v. State of Maharashtra  A.I.R.  1973 S.C. 243, Jiwan Prakash v. State of Maharashtra, A.I.R. 1973 S.C. 278, Shaikh Mohd.  Ali v. State of Maharashtra,  [1972] 2  S.C.C. 784 and Rajendrapaul Ramasaran Dass Sharma v.  The State  of Maharashtra, Crl.  Appeal No. 264 of 1972  decided on February 23, 1973, referred to.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION : Criminal ’Appeal No.9  of 1973. Appeal  by special leave from the judgment and  order  dated July  31, 1972 of the Gujarat High Court in Cr.  Appeal  No. 596, of 1972. K. K. Sinha and S. K. Sinha, for the appellants. Urmila  Kapoor, B. D. Sharma and S. P. Nayar, for  the  res- pondent. The Judgment of the Court was delivered by DUA,  J.-In this appeal by special leave the short  question requiring determination is whether the High Court of Gujarat was  justified  in  dismissing  in  limine  with  one   word "dismissed" the appellants’ appeal against their  conviction by  the Sessions Judge, Jamnagar for offences under  s.  420 read with ss. 511 and 34, I.P.C. and under s. 474 read  with s. 34, Indian Penal Code. Both the appellants were charged on five counts in the court of  the Sessions Judge relating to offences, inter  alia  of forging railway receipts purporting to be valuable security, being  in possession of forged receipts knowing them  to  be forged  and of dishonestly or fraudulently using the  forged receipts   as  genuine  knowing  them  to  be   forged,   in furtherance  of the common intention of cheating the  Indian Railways or attempting to cheat them. The points which arose for determination in the trial  court as stated in its judgment were :

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             " (1) Whether the prosecution has proved  that               on  or about 7-8-71 at Jamnagar accused no.  1               Mustaq Ahmed Mohmed Hussein and accused no.  2               Mukhtar   Hussein   Ali   Hussein   Sayed   in               furtherance  of  common intention of  both  to               cheat the Indian Railway ’by using forged 672 railway receipts actually forged three railway receipts mark 6/A,  6/B  and 6/C purporting to be  valuable  security  and thereby  committed an offence punishable under  section  467 read with section 34, I.P. Code ? (2)  Whether  the prosecution has proved that on  or  before 7-8-71  said  accused nos.  1 and 2 in  furtherance  of  the common  intention-of  both to cheat  Indian  Railway  forged railway  receipts mark 6/A, 6/B and 6/C intending that  they shall  be  used  for the purpose of  cheating  they  thereby committed the offence punishable under section 468 read with section 34 of the Indian Penal Code ? (3)  Whether  the prosecution has proved that  said  accused nos.   1 and 2 on or about 7-8-71 in furtherance  of  common intention  of both to cheat Indian Railway  fraudulently  or dishonestly  used  as  genuine ’he  three  railway  receipts marked  6/A,  6/B and 6/C which they knew or had  reason  to believe  at  the  time  they used  them  to  be  the  forged documents  and thereby committed the offence  under  section 471 read with section 34, I.P. Code ? (4)  Whether  the prosecution has proved that on  or  about 7-8-71  both  the  said  accused  nos.   1  and  2  were  in possession  of the forged railway receipts purporting to  be valuable  security  knowing  the  same  to  be  forged   and intending  that  the  same shall  be  fraudulently  used  as genuine   documents   and  thereby  committed   an   offence punishable under s. 474 read with section 34, I.P. Code ? (5) Whether the prosecution has proved that on or about 7-8- 71 accused nos. 1 and 2 were at Jamnagar and in  furtherance of common intention of both of them to cheat Indian  Railway attempted  to cheat Western Railway by dishonestly  inducing the  railway  employees, i.e., the goods clerk  at  Jamnagar railway station to deliver them Coal Wagons in question  and thereby  committed the offence punishable under section  420 read with section 34 and S. 511 of the Indian Penal Code ?" On points nos.  1 to 3 the decision of the trial court  went in favour of the appellants and against the Prosecution  but on  points nos. 4 and 5 the appellants were held guilty  and convicted.   They were sentenced under s. 420 read with  ss. 51 1 and 34, I P.C. to rigorous imprisonment for three years and a fine of Rs. 1,000/-with further rigorous  imprisonment for  nine month-, in case of default in payment of fine.   A similar  sentence  was imposed on each one of them  for  the offence under ss. 474/34, I.P.C. Both 673 the sentences were ordered to run concurrently.  It  appears from  the  judgment of the trial court  which  covers  about forty  pages of exhaustive discussion on the  points  raised hat  a large number of witnesses were examined at the  trial and the court entertained considerable doubt with respect to the  prosecution  story on several aspects  of  the  various charges framed against the appellants. On  appeal in the High Court the appellants  challenged  all the  adverse  findings  of the trial  court,  as  they  were entitled to do under s. 410 read with s. 418, Cr.  P.C., and assailed the appraisal and evaluation of the evidence of the prosecution  witnesses by that court.  More than 20  grounds were  taken  in  the  memorandum  of  appeal  in  which he testimony  of the various eye-witnesses was  criticised  and

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the  approach of the learned Sessions Judge in this  respect assailed.  As already pointed out, the High Court  dismissed the  appeal  in  limine with one word  "di  missed"  without indicating  whether it also endorsed the line  of  reasoning and approach of the trial court in evaluating the  testimony of the various witnesses and its manner of dealing with  the arguments advanced by the prosecution and the defence. In  this Court it was seriously contended on behalf  of  the appellants  that  the  High  Court  had  gravely  erred   in summarily dismissing the appeal in limine without disclosing even  broadly its reasons for rejecting the various  grounds of attack against the appraisal of the prosecution  evidence by  the  trial  court.  This, according  to  the  appellants learned counsel, is against the consistent and uniform  view expressed  by  this Court that in arguable  cases  the  High Court,  while  dismissing the appeal, broadly  indicate  its reasons in support of its conclusions.  The judgment of  the High Court has, in this case, resulted in failure of justice to the appellants’ prejudice, said the counsel. In our view, the appellants’ grievance is well-founded.  The right  of appeal conferred by s. 410 read with s.  418,  Cr. P.C. entitled the appellants to question the conclusions  of the  trial court both on matters of fact and of  law.   They had  a right to ask for a review of the entire evidence  and to  challenge  the appraisal of the evidence  by  the  trial court and its conclusions based on such appraisal.   Section 421,  Cr.   P.C. no doubt empowers the  appellate  court  to dismiss the appeal summarily but before doing so it is bound to peruse with care and attention the petition of appeal and the  copy  of the judgment or order appealed  against.   The order  of summary dismissal can be passed only if the  court considers   that   there  is  no   sufficient   ground   for interference.    This  conclusion  has  to  be  arrived   at judicially  after a prover scrutiny of the petition  of  the appeal  and  the  impugned  judgment or  order.   In  U.  J. S.Chopra v. State of Bombay(1) Bhagwati J., speaking (1) [1955] 2 S.C.R. 94. 674 for  the majority expressed the view that the hearing  under s. 421 is intended for the purpose of determining whether  a prima  facie case for the appellate court’s interference  is made out.  The whole purpose of the hearing accorded to  the appellant or his counsel, even after calling for the  record of  the  case, under this section, is to  determine  whether there  is  a  prima facie case  for  the  appellate  court’s interference  and it is not within that court’s province  at that stage to fully consider the evidence on the record  and hear  arguments  with  a  view  to  determine  whether   the conviction  could be sustained or the sentence passed  could be reduced.  No doubt the question directly arising in  that case  was  somewhat  different  but  the  observations  with respect  to  the purpose of the hearing under  S.  421,  Cr. P.C. would be equally applicable to the consideration of the present controversy.  If such be the real purpose of hearing contemplated  by  S.  421, then,  the  power  of  dismissing appeals  in  limine  should,  in  our  view,  be   exercised sparingly and with judicious caution so that no case raising arguable  points,  whether of law or of fact  requiring  re- appraisal of evidence, goes without requisite scrutiny. The requirement  of  recording reasons  for  summary  dismissal, however concise, serves to ensure proper functioning of  the judicial   process.   Reasons  are,   therefore,   advisedly required  by  the decisions of this Court to  be  given  for rejecting  an  appeal  summarily under  S.  421,  Cr.   P.C. Similar  view was taken by the Allahabad High Court  Is  far

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back  as  1886  in Queen Empress v. Ram  Narain  &  Anr.(1). Although  that  was  a case in which  the  appeal  had  been dismissed   by  the  Sessions  Judge,   the   considerations prevailing  in such a case may equally well apply  to  cases where  the High Court dismisses an appeal in limine for  the reason,  inter alia, that this Court may, when  approach  by the aggrieved party to exercise its power under Art. 136  of the Constitution, have the benefit of the views of the  High Court.   With  speaking orders justice is also  seen  to  be done. Turning now to the decisions directly dealing with the point raised  by the appellant , this Court has  consistently  and uniformly  held  that in cases raising arguable  points  the High  Courts would be well-advised to make  speaking  orders indicating their reasons, however concise, inducing them  to dismiss  the  appeals  in limine.  The  learned  counsel  on behalf  of the State, Mrs. Urmila Kapur,  without  disputing that where arguable and substantial questions of fact or law are  raised  on appeal the High Court is, according  to  the decisions of this Court, expected to write a speaking  order however  brief,  dealing with and disposing  of  the  points canvassed before it submitted that in the present case there were  no  arguable  or  substantial  points  involved   and, therefore,  the High Court was ,justified in dismissing  the appeal In limine without indicating its (1) I.L.R. 8 All. 514. 675 reasons therefor.  She, however, referred us specifically to an unreported decision of this Court in Mohammad Ayub  Abbas Raut  v.  The State of Maharashtra(’,).   According  to  the learned counsel, this decision has not been noticed by  this Court  in its later decisions disapproving the dismissal  in limine  by  the  High Courts of appeals  from  judgments  of learned   Sessions   Judges.   This   argument,   on   first impression,  appeared to suggest that the,  learned  counsel wanted us to re-examine the numerous decisions of this Court uniformly disapproving the practice, prevailing in some High Courts,  of too readily dismissing in limine, with one  word "dismissed",  appeals  from the Sessions Courts  even  where arguable  points of fact or law are apparent on the face  of the  impugned judgment or order.  Mrs. Kapur, however,  soon clarified her position by submitting that she only wanted to contend  that  in  the present case this  Court  should  not interfere  with the High Court’s judgment as there  were  no arguable  or substantial points involved in the  appeal  and Mohd.  Ayub (supra) was only cited as a precedent to support this contention.  According to her the judgment of the trial court is detailed and well-considered, sound reasons  having been   given  in  support  of  its  conclusions  :  it   was accordingly  unnecessary for the High Court to  specifically deal  with  the  various points raised in  the  petition  of appeal  and  to  record its reasons  for  rejecting  various grounds of challenge canvassed before it. In our view, Mohd.  Ayub Abbas Raut (supra) does not in  any way  cast  a doubt on the soundness of the  various  reasons which  have  consistently prevailed with this  Court  firmly disapproving  dismissal in limine with one word  "dismissed" of  appeals  before the High Courts from  the  judgments  of Sessions Courts which raised arguable points of fact or law. The  view expressed in earlier decisions was  not  dissented from.   Indeed  no  reference  was made  to  them.   On  the contrary  it was observed that on the findings of the  trial court not considered erroneous by the High Court the  latter was  justified in dismissing the appeal in limine as it  had full  power to do so in exercise of its discretion under  s.

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421,  Cr.  P.C. That the High Court has power to dismiss  in limine  has always been accepted by this Court.   What  this Court has consistently and uniformly laid down is that where arguable  points  of fact or law are raised  then  the  High Court  would  be well-advised to indicate  its  reasons  for dismissing  the appeal in limine.  This view is  now  firmly established and there has never been any dissent.  No doubt, even now we come across stray cases from some High Courts in which,  either  in ignorance of the  legal  position  firmly settled  by  this  Court  in a  string  of  authorities,  or erroneously thinking that there is no arguable point of fact or (1) Crl.  A. No. 145 of 1961 decided on March 25. 1963. 676 law  involved in an appeal under S. 410, Cr.  P.C. from  the judgment of Sessions Court, actually and prima facie raising arguable points on the question of appreciation of evidence, appeals  are dismissed in limine with one  word  "dismissed" without indicating its reasons.  It is because of such cases that we consider it necessary once again to refer to some of the decisions of this Court in which the legal position  has been declared and re-stated. in Mushtak Hussein v. The State of Bombay(1) Mahajan J., (as he then was) observed :               "With great respect we are however constrained               to observe that it was not right for the  High               Court  to have 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 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 article 136  of               the  Constitution this Court  sometimes  feels               embarrassed  if  it  has to  deal  with  those               matters without the benefit of that opinion." In  Bhagat  Singh v. State of Rajasthan (2  )  Bhargava  and Hegde JJ., sent the case back for re-decision as the  appeal had been dismissed summarily.  The same Bench in  Vishwanath Shankar  Beldar v. The State of Maharashtra (3 )  adopted  a similar  course.   The  view expressed  in  Mushtak  Hussein (supra)   was  reiterated  in  K.  K.  fain  v.   State   of Maharashtra(4).  In Jiwan Prakash v. State of Maharashtra(3) this Court had drawn the attention of the High Courts to  as many  as 13 cases in which this Court had consistently  sent the matters back fore-hearing. In Shaikh Mohd.  Ali v. State of  Maharashtra(6) Shelat J., sneaking for the  Court  again emphasised  that  a  High Court would not  be  justified  in dismissing summarily and without a speaking order an  appeal raising  arguable  questions either factual or  legal.   Re- ference in this decision was made to Mushtak Hussein (supra) and Jiwan Prakash (supra).  Since then on several  occasions again this Court has reaffirmed this view.  The most  recent decision in which this Court felt constrained to remand  the case to the High Court for a fresh decision is  Rajendrapaul Ramasaran (1) [1953] S.C.R. 809.. (2) Crl.  A. No. 38 of 1969 decided on September 17, 1069. (3) Crl.  A.No 95 of 1960 decided on September 18, 1969.

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(4) A.I.R. 1973 S.C. 243. (6) (1972) 2 S.C.C. 784. (5) A.I.R. 1973 S.C 278. 677 Dass  Sharma  v.  The  State  of  Maharashtra(1).   In  that decision  various  aspects  have again  been  considered  to impress upon the High Court the inexpediency and impropriety of disposing of with one word "dismissed" the appeals before it which raise arguable points. The  contention that, when the trial court records  a  well- reasoned judgment, then, even though arguable points on  the question  of  credibility  of witnesses are  raised,  it  is unnecessary  for the Court of appeal to deal with all  these points  and  record its own reasons for  agreeing  with  the conclusions of the trial court, is unacceptable.  The- right of appeal conferred on a convicted person gives him a  right to challenge, the reasoning and finding on the appraisal  of evidence  both oral and documentary by the trial  court  and unless  the  challenge  can  be  held  to  be  prima   facie unimpressive  and unarguable the High Court would  be  well- advised  to  go  into the points canvassed  and  record  its reasons.   Such  a  course  would  be  in  accord  with  the statutory  intendment, and also of assistance to this  Court in  more satisfactorily dealing with appeals under Art.  136 of the Constitution. The judgment of the trial court in the present case  clearly shows  that  in  order to arrive at a  safe  conclusion  the entire evidence on the record has to be closely scrutinised. The  trial  court devoted several pages for the  purpose  of proper  appraisal  of the evidence, discarding some  of  the contentions of the prosecuting counsel, as unsupportable  on the  material on the record.  That court also  noticed  some discrepancies  in the evidence of some of the witnesses  for the   prosecution,  considered  them  to  the   minor   and, therefore, immaterial.  Further found defects in the working of the Railways as regards the movement of goods wagons and, according  to,  the  trial court, had there  been  a  proper system  of  checking and tallying at  the  relevant  railway stations,  what  has unfortunately happened in  the  present case  would perhaps have been avoided.  On appraisal of  the evidence,  the offences under ss. 467 and 468,  I.P.C.  were held  not proved, there being no reliable evidence on  those points.  Again, on the actual fraudulent or dishonest use of forged  documents  also  the  trial  court  felt  that   the prosecution evidence fell short of the main ingredients  and only an attempt had been made by the accused persons to  use the  forged  documents  with  the  result  that  they   were acquitted of the charge under s. 471, I.P.C. The trial court also seems to have taken into account the suspicious conduct of  the appellants in coming to the conclusion  about  their guilt under s. 420, I.P.C. read with ss. 415 and 34,  T.P.C. and under ss. 474/34, I.P.C. This. discussion clearly  shows that the appellants were not unjustified in claiming to have the evidence on the record re-examined by the High Court (1)  Crl.   Appeal No. 264 of 1972 decided on  February  23. 1973. 678 for  coming  to  its  own  conclusions,  of  course,   after considering  the  views of the trial court  and  giving  due weight to that court’s reasoning and conclusion.   Recording of  reasons by the High Court for its conclusion on all  the relevant  aspects was thus necessary because even the  trial court  had  not  completely and  unreservedly  accepted  the evidence  led  by the prosecution and  the  charges  pressed against  the appellants.  The points raised as disclosed  in

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the  petition  of  appeal could by no means be  said  to  be unarguable.  Without expressing any opinion on the merits of the  case, we are constrained to allow this appeal and  send the case back to the High Court for a fresh decision in  the light  of the observations made above.  Had the  High  Court recorded its reasons in support of the order dismissing  the appeal  perhaps this remand could have been avoided and  the appellants saved the further delay in the final disposal  of their  appeal by the High Court.  The appeal is  accordingly allowed and the case sent back for a fresh decision. G.C.                            Appeal allowed. 679