http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: RAJPUT RUDA MAHA AND ORS.

       Vs.

RESPONDENT: STATE OF GUJARAT

DATE OF JUDGMENT05/12/1979

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA KAILASAM, P.S. KOSHAL, A.D.

CITATION:  1980 AIR 1707            1980 SCR  (2) 353  1980 SCC  (1) 377  CITATOR INFO :  R          1989 SC2105  (8)  F          1990 SC 781  (34)  RF         1992 SC 891  (23)

ACT:      Supreme  Court   (Enlargement  of   Criminal  Appellate Jurisdiction) Act, 1970-S.2(a)-Scope-Supreme Court, if could summarily dismiss an appeal under section 384 Cr. P.C.

HEADNOTE:      The appellants  who were  charged with  the offence  of committing murder were acquitted by the Sessions Judge.  But on appeal  by  the  State,  the  High  Court  convicted  and sentenced them.   In  their appeal under section 2(a) of the Supreme   Court    (Enlargement   of    Criminal   Appellate Jurisdiction)  Act,  1970,  this  court,  after  a  detailed analysis of  the High Court’s  judgment and the evidence led in the case summarily dismissed the appeal under section 384 of the Code of Criminal Procedure, 1973.      After the  pronouncement of  the judgment but before it was signed,  the attention  of the  court was  drawn to  the judgment in  Sita Ram  v. State of U.P. [1979] 2 S.C.R. 1085 which, according to them, held that the Supreme Court had no power to  summarily dismiss an appeal under section 384, Cr. P.C. in  an appeal  under section  2(a)  of  the  1970  Act. Dismissing the appeal. ^      HELD: The  decision in  Sita Ram v. State of U.P. is no authority regarding  the power  of the  court  to  summarily dismiss  an   appeal  under  section  384  of  the  Criminal Procedure Code.  In that case neither in the application for adducing additional  grounds nor  in the  order of the Court directing the  matter to  be placed  before the constitution bench was there any reference to the validity of section 384 nor was  it pleaded  that the  section was  ultra-vires  the Constitution. [356 E]      Therefore the  observation of  the Court  that  it  has "pondered over  the issue in depth" would not be a precedent binding on  the court.  The decision is an authority for the proposition that  rule 15(1)(c)  of order XXI of the Supreme Court Rules  should  be  read  down  as  indicated  in  that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

decision. [356F]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 718 of 1979      From the  Judgment and  Order dated  11-10-1979 of  the Gujarat High Court in Criminal Appeal No. 110/77.      A.K. Trivedi and S.S. Khanduja for the Appellant.      The Judgment of the Court was delivered by      FAZAL ALI,  J. This  appeal is  preferred by  the three accused in  Sessions Case  No.  46  of  1976  against  their conviction and sentence 354 imposed upon  them by the High Court under the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970.      The three  appellants were  tried by the Sessions Judge for  commit  ting  offences  punishable  under  s.  302/120- B/323/324 read  with s.  34 and 109 of the Indian Penal Code for committing  the murder  of one Karsan Kala on 19-1-1976. The  learned   Sessions  Judge   acquitted  all   the  three appellants of  the charges  levelled against them. The State of Gujarat  filed an  appeal against  the order  of Sessions Judge acquitting  them, to  the High  Court  of  Gujarat.  A division Bench  of the  High Court  in Criminal  Appeal  No. 110/77 allowed  the appeal  of the  State and  reversed  the order  of  acquittal  by  the  Learned  Sessions  Judge  and convicted  them   for  offences   under  s.  302/120--B  and sentenced them  to imprisonment  for life.  They  were  also convicted tor lesser offences and sentenced to varying terms of imprisonment      The prosecution  strongly relied  on  the  evidence  of three eye  witnesses Rata  Mala, Ganesh  and Ruda. Rata Mala was an  injured eye-witness  having receives several incised injuries. The evidence of Ruda not accepted. The complainant Savai Kala,  the brother of the deceased saw the latter part of the  occurrence when  the deceased was being carried away by the  accused. When  Savai Kala  questioned,  the  accused attacked him  and he  was also  injured The High Court in an elaborate  judgment   after  thoroughly   scrutinising   the evidence of  the eye  witnesses accepted their testimony. It observed that the evidence of the eye-witnesses Rata Mala is most reliable  and trustworthy  and so  also the evidence of Ganesh. The  High Court  has referred  to  the  circumstance under which  the order  of acquittal  could be interfered 1, with in  the light  of the  various decisions of this Court. The High  Court taking  into consideration the reasons given by the Sessions Judge for not accepting the testimony of the eye-witnesses found them to be totally unacceptable. We have been taken  through the  evidence of the material witnesses. We have  no  hesitation  in  agreeing  with  the  conclusion arrived at by the High Court that the reasons given by the l rial  Court   for  acquitting   the  accused   are   totally unacceptable.  After   hearing  the   learned  counsel   and examining the petition of appeal and after going through the relevant parts  of the  judgment of  the High  Court and the Sessions Court. we find that there are no sufficient grounds of interference.  The appeal  is summarily dismissed under S 384 of the Code of Criminal Procedure.      After we  pronounced our judgment dismissing the appeal summarily under  S. 384  of the  Code of Criminal Procedure, but before signing 355 the judgment,  a decision  of this  Court-Sita Ram & Ors. v.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

State of U.P. was brought to our notice wherein the scope of the power of the Courts to dismiss an appeal summarily under S. 384  of the Code of Criminal Procedure has been referred. In that  case an appeal was preferred to this Court under S. 379 of  the Code  of Criminal  Procedure, 1973  read with S. 2(a) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction)  Act,   1970.    The  appeal  was  listed  for preliminary hearing  under Rule  15(1) (c)  of O.XXI  of the Supreme  Court   Rules  1966.   The  Appellants   filed   an application for adducing additional grounds, namely, (1) the provisions under cl. (c) of sub-rule (1) of Rule 15 of Order XXI of  the Supreme  Court Rules  empowering  the  Court  to dismiss  the   appeal  summarily   is  ultra   vires   being inconsistent  with  the  provisions  of  the  Supreme  Court (Enlargement of  Criminal Appellate Jurisdiction) Act, 1970; (2) the power of the Supreme Court to frame rules under Art. 145 of  the Constitution  cannot be  extended to  annul  the rights conferred  under an  Act of  Parliament  and  (3)  an appeal under  the Supreme  Court  (Enlargement  of  Criminal Appellate  Jurisdiction)   Act,  1970  cannot  be  dismissed summarily without calling for the records ordering notice to the State  and without giving reasons.  When the petition fr leave to adduce additional grounds came up before the Court, this Court ordered :-           "The appellants have challenged the constitutional      validity of cl. (c) of sub-rule (1) of rule 15 of O.XXI      of the  Supreme Court Rules, which enables an appeal of      the kind  with which we are concerned, to be placed for      hearing ex  parte before  the Court  for admission.  In      that view  of the  matter, we  think  that  unless  the      question of  the constitutional validity of the rule is      decided, we cannot have a preliminary hearing.. Of this      appeal for  admission. Let  the records,  therefore, be      placed before  the Hon’ble the Chief Justice for giving      such direction as he may deem fit and proper."      The matter  was placed before a Bench of five Judges by the Hon’ble the Chief Justice as the constitutional validity of cl.  (c) of  rule 15(1)  of O.XXI of Supreme Court Rules, was challenged.   Alongwith  the question  of constitutional validity, two  other grounds  referred to  earlier were also raised.   The contention of the Learned Counsel that a right of appeal cast an obligation on the Court to 356 send for  records of  the case, to hear both the parties and to make  reasoned judgment, was not accepted by the judgment of the Court. Reasons given by the Court are as follows:-           "Counsel  for   the  appellant  insisted  that  an      absolute right  of appeal  as he described it, casts an      inflexible obligation  on the  court to  send  for  the      record of the case, to hear both parties, and to make a      reasoned Judgment.  Therefore, to scuttle the appeal by      a summary  hearing  on  a  preliminary  posting  absent      record, ex parte and absolved from giving reasons is to      be absolutist-a  position absonent  with the mandate of      the Enlargement Act Act, indeed, of the Constitution in      Article 134(1).  Counsel’s ipsi  dixit did not convince      us but  we have pondered over the issue in depth, being      disinclined summarily to dismiss." Regarding the  power of  the Court  to summarily dismiss the appeal under  S. 384  of the Code of Criminal Procedure, the submission of the Learned Counsel was that the provisions of the Code  of Criminal  Procedure are  not applicable  to the Supreme Court  which contention  was  not  accepted  by  the Court.      Neither in  the  application  for  adducing  additional

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

grounds or in the order of the Court directing the matter to be placed  before the  Constitution  Bench,  there  was  any reference to  The validity  of S.  384  -  of  the  Code  of Criminal  Procedure.  Neither  was  it  pleaded  during  the arguments that  S. 384  of the Code of Criminal Procedure is ultra vires of the Constitution. As the question of validity of S. 384 the Code of Criminal Procedure was neither- raised nor argued,  a discussion by the Court after "pondering over the issue  in depth’ would not be a precedent binding on the Courts. The  decision is  an authority  for the  proposition that Rule  ]5(1)(c) of  O.XXI of  the  Supreme  Court  Rules should be read down as indicated in the decision.      We are  satisfied for the reasons stated above that the decision is  no authority  regarding the  scope of S. 384 of the Code  of Criminal  Procedure. The  order cf dismissal of the appeal summarily will stand, P.B.R.    Appeal dismissed. 357