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 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.
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
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
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