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PETITIONER: SIDDANNA APPARAO PATIL

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT: 06/03/1970

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

CITATION:  1970 AIR  977            1970 SCR  (3) 909  1970 SCC  (1) 547  CITATOR INFO :  RF         1970 SC 979  (9)  F          1971 SC  64  (2)  R          1972 SC 505  (6)  RF         1973 SC 243  (4)  D          1974 SC1150  (4)  F          1983 SC1014  (2)  R          1986 SC1070  (2)

ACT: Code  of  Criminal Procedure (5 of 1898), s.  410-Appeal  to High  Court  involving substantial and  arguable  questions- Appeal dismissed in in limine summarily-Propriety.

HEADNOTE: The  appellant  and another were charged under s.  302  read with s. 34, I.P.C. The second accused was acquitted but  the appellant  was convicted and sentenced to  imprisonment  for life  by the Sessions Court.  In appeal to the  High  Court, the  appellant  raised  various  arguable  and   substantial questions of law and fact, but the High Court dismissed  the appeal in limine summarily-Propriety. I appeal to this Court by special leave, HELD  : The order of dismissal of the appeal should  be  set aside  and the matter remitted to the High Court  for  fresh consideration. [912 D] The  High  Court  has  undoubtedly  the  power  to   dismiss summarily  an appeal under s. 410 Cr.  P.C., but, it  should not  do  so if the appeal raises  arguable  and  substantial points.   Further,  in such appeals, the High  Court  should give reasons for the rejection of the appeal. 1910 E; 912 Cl Mushtak  Hussain  V.  State of Bombay,  [1953]  S.C.R.  809, Govinda Kadtuji Kadam & Ors. v. Spate of Maharashtra, [1970] 3  S.C.R. 525 and Chittaranian Das v. State of  West  Bengal [1964] 3 S.C.R 237, followed. 237. followed.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 180 of 1967. Appeal  by special leave, from the order dated  December  5,

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1966 of the Bombay High Court in Criminal Appeal No. 1444 of 1966. The appellant did not appear. M. S. K. Sastri and S. P. Nayar, for the respondent. The Judgment of the Court was delivered by Ray, J. This is an appeal by special leave against the judg- ment  of  the High Court of Bombay dated  5  December,  1966 dismissing  in  limine  the  appeal  preferred  against  the judgment  and  order  dated 16 August, 1966  passed  by  the Sessions Judge, Sholapur.  The High Court by an order  dated 3 April, 1967 also refused leave to appeal to this Court. 910 The  appellant  was accused, No. 1. He was  convicted  under section  302 read with section 34 of the Indian  Penal  Code and sentenced to imprisonment for life. Broadly stated, the charge against the appellant was that he in  conspiracy  with his brother, accused  No.  2  committed murder  of Revansidhappa Shivappa Patil and  Mahadeo  Sidran Patil.   The defence of both the appellant and  his  brother was one of total denial. The right to prefer an appeal from sentence of Court of Ses- sions is conferred by section 410 of the Criminal  Procedure Code.   The right to appeal is one both on a matter of  fact and  a matter of law.  It is only in cases where there is  a trial by jury that the right to appeal is under section  418 confined only to a matter of law. This  Court in several decisions dealt with section  410  of the Criminal Procedure Code and the rights of the  appellant thereunder.   Reference  may be made to one of  the  earlier decisions  of this Court in Mushtak Hussain v. The State  of Bombay(1) and the recent decision in Govinda Kadtuji Kadam & Ors.  v.  State  of Maharashtra(1)  where  several  previous decisions of this Court have been noticed. The  following principles emerge from the decisions;  first, the  Appellate  Court  undoubtedly  has  power  of   summary dismissal;  secondly,  if  the appeal  raises  arguable  and substantial  points the High Court should give  reasons  for rejection  of  appeal; thirdly, rejection of  an  appeal  by using  only  one word of dismissal causes  difficulties  and embarrassment in finding out the reasons which weighed  with the  High  Court  in  dismissal of  the  appeal  in  limine; fourthly  this  Court in Chittaranian Das v. State  of  West Bengal(1)  held  that the High Court  should  not  summarily reject   criminal  appeals  if  they  raise   arguable   and substantial points. As  to  what is an arguable and a substantial point  may  be illustrated with reference to a few decisions. In  Narayan  Swami v. State of Maharashtra  (4)  this  Court stated  that  a  ground in preferring  an  appeal  from  the judgment  of the Sessions Court that a gross illegality  was committed in relying upon the evidence given by a co-accused in  a dacoity case and using the answers given by him  as  a co-accused   against  the  accused  appellant  would  be   a substantial  question.  Again it was noticed that denial  of an opportunity to an appellant in a dacoity (1) [1953] S.C.R. 809. (3) [1964] 3 S.C.R. 237. (2)  [1970] 3 S.C.R. 525. (4)  [1968] 2 S.C.R. 88. 911 case  of being heard as required under section 479A  of  the Criminal Procedure Code would be an arguable point. In an unreported decision of this Court in Bhanwar Singh  v. State of Rajasthan(1), it was held that failure to  consider the  position  in which the appellant was  placed  when  his

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immediate  superior admittedly ordered him to bring out  the currency  notes which were required not for the  purpose  of investigation of any case but only for the purpose of  being shown  to a person whom the sub-inspector wanted to help  in laying  down a new trap would be a substantial ground  in  a conviction  under Prevention of Corruption Act  and  section 409 of the Indian Penal Code. In  another unreported.decision of this Court in  Vishwanath Shankar Beldar v. State of Maharashtra (2) it was said  that if  the trial Judge did not accept the witness as  a  wholly truthful  witness  in the light of reports  sent  by  police officers And his statement under section 162 of the Criminal Procedure  Code and remarked that a portion of the  evidence was  clearly  an improvement it was necessary for  the  High Court to consider the evidence afresh. In  another  unreported earlier decision of  this  Court  in Bashir Husain Peshimani v. The State of Maharashtra (3 ) the offences  alleged were under the Indian Penal Code, the  Sea Customs  Act, 1887 and the Foreign Exchange Regulation  Act, 1947  in respect of gold alleged to have been  brought  into India  in  pursuance  of  a  conspiracy.   There  was   oral testimony  of  accomplices.  That evidence was held  by  the trial Court to have been corroborated by the actual  finding of gold from the place of one of the accused.  Another piece of evidence was the recovery of duplicate set of keys at the residence of accused No. 2. Reliance was placed by the trial court  on  the confession of the appellant  which  had  been retracted  as  corroborative  evidence  of  the   accomplice witnesses.   In  preferring  appeal to the  High  Court  the grounds  urged were that there were serious  infirmities  in the evidence and the manner in which the keys were recovered was open to objection.  The High Court dismissed the  appeal in limine.  This’Court remitted the matter back to the  High Court  for disposal of the appeal in accordance with law  by expressing the view that these were arguable points.  In the same case it was said that it would be open to the appellant to canvass before the High Court in appeal every point  even on a question of fact in his favour to demolish by reference to  other material the evidence that had been  used  against him. In the present case, one of the contentions of the appellant in  the appeal preferred was that the appellant was  charged under (1)  Criminal Appeal No. 38 of 1969 decided on 17 September, 1969. (2)  Criminal  Appeal  No.  95  of  1969  dececided  on   18 September 1969. (3)  Criminal Appeal No. 262 of 1968 decided on 20 December, 1968. 912 section  302 read with section 34 of the Indian  Penal  Code for  committing murder of both the Patils in furtherance  of the common intention of the appellant and accused No. 2  and on accused No. 2 being acquitted the appellant could not  be convicted  with  the  aid of section 34.   In  aid  of  that contention  reliance  was placed on the  decisions  of  this Court in Prabhakar Navale v. State to Bombay(1) and  Krishna G.Patil  v.  State  of  Maharshtra(2).   Another  contention raised  in the appeal was that it would be an error to  hold that  there was initimacy between the appellant  and  Nilava wife  of  Babanna  on the evidence  of  third  parties  when neither  Babanna  or  Nilava gave evidence.   We  have  only referred  to  two  contentions  amongst  several  others  to illustrate both arguable and substantial matters of law  and of fact.

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In the present case the High Court, dismissed the appeal  by a  single  word and it is not possible to know  the  reasons which persuaded the High Court to dismiss the appeal. In the result the appeal is allowed.  The order of dismissal of the appeal is set aside.  The matter is sent back to  the High Court for fresh consideration on hearing the parties. V.P.S.                                                Appeal allowed. (1)  A.I.R. 1963 S.C. 51. (2)  A.I.R. 1963 S.C. 1413.                             913