NARAYAN SWAMI versus STATE OF MAHARASHTRA

• lllARAYAN SWAMI

STATE 01' MAHARASHTRA

October 26, 1967

JV. IlHARGAVA ASD C. A. VAIDIALI~GAM, JJ.)

P:-actict..-fligli l:oto:1-·Cri111i.11al appeal r<1ising substantial and in1-1purtant q11t'.'ilic>1L~-S111111n.:iry diJn1is.\a/ hy Jligh C.:011rr--lf justified.

q11t'.'ilic>1L~-S111111n.:iry diJn1is.\a/ hy Jligh C.:011rr--lf justified.

During the trial for an offence of dacoity one of the \\'itne~s 1!avc false cviUcncc. anJ stated, on further examination, that he did so at- the instance ot the Sub-inspctor .... -ho investigated the CiCJC. The Cou11 gave notiet: to the Sub-inspector to show cause v.·hy complaint should not be laid again'! him for otlcnce; under ss. 195, I 96 and 205 J.P.C. and he appcareJ und showed cause. After the trial, <1nd at the time of .delivering judgment in the dacoity 'case the Court found that the \\'itness had intentionally J?,iven false evidence and that the Sub-inspector had intcntioni.illy fahricated false evidence. and thereafter tiled complaint against them before the Joint ~fagislratc. They were committed to the Sessions Courr to take their 1rial !or offences under ss. 195. 196 and .14 LP.C. a< fim and 'econd accused respectively. The" Sessions Judge found them guilty. The Sub-inspector (secood accused) appealed to the High Coun and contended that : (I ) the Sessions Judge had com· milled gross illegalily in relying as against the second accused, upon the evidence Of the first accused as v..·itness in the earlier dacoity case, and the statement of the fi"t accused under s. 342 Cr. P.C. before the Sessions Judge: und (2) the show cause notice was not sufficient com-pliance with the provisions of s. 479A, Cr. P.C. as the notice should have been given ufler the judgment in the dacoily case. The High Coun dismissed the appeal summarily in one v..·ord "dismissed', without dis-cussing the questions of law an<l without considering v..·hethcr there \\·as guflkient other evidence to convict the appelJ.ant.

Jn appeol by the Sub-inspector to 1his Court.

HELD : The oppcal before the High Court, was an arguable one, and it also raised substantial and important questions for consideration by 1he High Court. The High Coun was therefore not justified in dis· mi5'in& the appeal summarily. {94C]

in dis·

Mu.1/1tak Hu.uei" v. State of Homhay. ( 1953) S.C.R. 809 Sliree!an· ti11h Ramayyt• M1111ipalli v. State of Ho111hav. (1955( I S.C.R. 1177 and Chittaranjan Dm v. Swe of West Be11f1a/, 11964) J S.C.R. 237, followed.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 165 of 1967.

Appeal by spec:al leave from the order dated April 27, 1967 of the Bombay High Courl, ·Nagpur Bench in Criminal Appeal No. 74 of 1967.

W. S. Barli11g11y and A. G. Rm11aparkhi, for the appellant

. H. R. Khamw and S. /'.Nayar, for the respondent.

The Judgment of the Court was delivered. by

Vaidialingam, J. The appellant, who was the. second accused, in Sessions·Case No. 9 of 1967, and accused No. 1, were found guilty, under s. 195 and s: 196 read with s. 34, I.P.C. and each of them has been convicted and sentenced to undergo three years' rigorous imprisonment, for these offences, and the sentences have. been directed to run concurrently. The case of the first accused, is not before us, in these proceedings.

The appellant chalknged hls conviction and sentence, passed against him, before the High Court of Bombay, in Criminal Appeal No. 74 of 1967. Division Bench of the High Court has, by its order dated April 27, 1967, summarily dismissed the appeal, in one word 'dismissed'. The appellant has come up, to this Court, by special leave. But this Court, by its order dated September 7, 1967, has granted special leav.e, limited to the question as . .to whether the High Court was justified in dismissing the appeal summarily. That is the only point, that arises for consideration, in this appeal.

It is necessary, to set out briefly, the circumstanc~'S under which the appellant, who was police Sub-Inspector, along with · one Dilawar, who was accused No. 1, came to be charged-sheeted and tried, in Sessions Case No. 9 of 1967. In connection with dacoity, which is alleged to have taken place, on July 18, 1965, when the Bombay-Howrah Mail was stopped, at the outer signal of Nagpur Railway Station,one Ambadas and Deorao, and certain others, were prosecuted before the Additional Sessions Judge, Na~pur, in Sessions Case No. 8 of 1966. ~n that trial, the prose-cution had to prove certain recoveries made, on the basis of three memos, which have b.een marked, in the present Sessions Trial, as Exhibits 7, 8 and 14. Those memos had been attested by two Panch witnesses, Pochanna and Abdul Gani. Pochanna turned hostile and, therefore, the prosecution tried to establish the re-coveries made, under these memos, by the other Panch witness, Abdul Gani. The first accused, in the present Sessions trial, gave evidence, on June 10, 1966, in Sessions Case No. 8 of 1966, that he is Abdul Gani and that he has attested the recovery memos. .. The appellant, before us, was examined in that trial, on June 11, 1966, and he has stated that the witness, who has spoken to the recovery memos, was Abdul Gani and that he has attested the recovery memos; but, later on, the accused in the dacoity case, appear to have entertained suspicion that the first accused, in these proceedings, who clairn to be Abdul Gani and spoke to having attested the recovery memos, is not the real Abdul Gani, but Dilawar. This suspicion was brought to the notice of the Sessions Judge, trying the dacoity case, on June 14, 1966. The Sessions Judge, Sri Waikar, caused the present first accused, to be LI Sup.Cl/68-7

brought before him and further examined him,. in Sessions Case No. 8 of 1966. The witness appears to have stated that he wao; not Abdul Gani, but really Dilawar, and that he had come to the Cou;t, on June 10, 1966, and given evidence, as Abdul Gani, on the compulsion and threat of the present appellant.

On the same day, i.e., June 14, 1966, Mr. Waikar issued notice to the appellant, to show cau""e why complain'. should not be laid against h'm, for offences under ss. 195, 196, and '.!GS, - 1.P.C. By the said notice, the appellant was directed to appear before the Court, on June 16, 1966. The appellant appeared and p!eaded, on June 16. 1966, that he had not committed any offence and that he bona fide be"ieved that the presc1t. l st accuseJ was Abdul Gani, and that he had never compelled one Jawar to appear before the Court and give evidence, as Abdul Gani~ Th.e appellant was furtJ1cr examined, in the dacoity case, on Jun" 17, 1966, and he was also cross-examined, by '.he accused, in the dacoity case.

On June 22, 1966. the learned Sessions Judge, Nagpur, ac· quitted all the accused. in the dacoity case. In tile said judgment, the learned Ses.s1ons Judge has sta'.~d that the present accused No. I, inten'ionally gave falrn evidence, and the appellant inten-tionally fabricated false evidence w th •he intent to procure con-vict.on of the accused. in the dacoi:y case, and that it was highly expedient, in the interest of justice and in the interest of eradi-cation of the evil of perjury and the fal:Jrication of false ev'dence, that both of them should be prosecuted. Thereupon, the learned Sessions Judge tiled the complaint, against the appellant and Dilawar, on July 8, 1966, in •he Court of the Joint Magistrate, First Class, IV Court, Nagpur.

The Joint Magistrate, by his order dated January 27, 1967, held that prima facie case, aga'nst bo'h the accused, under ss. 195 and 196 read with s. 34, 1.P.C., has been made out; and, accordingly, after framing charges. he committed them •o the Sessions Court, to face trial. The learned Sessions Judge, Nag-pur. by his judgment, dated Ma•ch 31, 1967, has found each of the accused, guilty under s. 195 and s. 196 read with s. 34, l.P.C., _and sentenced them, as mentioned earlier.

In view of the fact that special leave has been limited to the question, as to whether the High Court was justified, in dismissing the appeal, summarily, and. as we are satisfied, after hearing arguments, on behalf of the appellant, and the State, that the appeal will have to be remanded, for fresh consideration, by the High Court, we do not propose to deal with the matter very elabora•cly. We will onlv advert to some of the material circum-stances, that have been placed, before us, by the learned counsel,

for the appellant,· to hold that this was certainly not case in which the High Court was justified in dismissing the appeal, sum-marily.

On behalf' of the. appellant, learned counsel, Dr. Barlingay, raised two contentions: (i) that the learned Sessions Judge, in convicting the appellant, has relied, ·mainly, on the evidence,. given by Dilawar, on June 14, 1966, in Sess:ons Trial No. 8 of 1966, and on the statements, ii.lade by Dilawar, as first accused, when he was examin.ed, ·under s. 342, Cr.P.C., in the present Sessions Trial; and (ii) that the provisions of·s. 479A, Cr.P.C., have not been complied with, when Mr. Waikar filed the com-plaint, as against the appellant, on July 8, 1966.

Mr. H. R. Khanna, learned counsel, appearing for the State of Maharashtra, on the o'.her hand, submitted that the learned Sessions Judge has considered the question of non-compliance with the provisions of s. 479A, Cr.P.C., and he has rejected the appellant's contention, in that regard. Counsel also pain• ed out that, apart from the evidence of D'.lawar, in Sessions Case No. 8 of 1966, and his answers, given as co-accused, in the present Sessions Case, there is,. on record, other evidence, which have also been taken into accou11t, by the learned Sessions Judge, for con-victing the appellant. When the H;gh Court dismissed the appeal, though summarily; it must be presumed that the High Court has agreed with the views, expressed by the learned Sessions J uctge, in the present judgment. Therefore, we und.erstood counsel to urge that the H'gh Court was perfectly justified, in d;smissing the appeal, summarily. ·

There is no controversy, that the appellant, who has been convicted, on trial, by the Sessions Judge, had right of appeal, to the High Court, under s. 410, Cr.P.C. The appellant was also entitled, under s. 418 Cr.P.C., to agita•.e, in his appeal, before the High Court, findings of fact, recorded against him, · as also questions of law, available to him. No d·oubt, under s. 421 Cr.P.C., the Appellate Court may dismiss an appeal, summarily, if, on perusal of the petition of appeal, and copy of the judg-ment appealed from, it considers that there is no sufficient ground for interference. This section, has come up for consideration, before this Court, in Mushtak Hussein v. The State of Bombay('). This Court has held, therein, that in case, which, prima facie, raises no arguable issue, summary dismissal of the appe,al, may be justified, but, in arguable cases, summary_ rejectior. order must give some indication of the views of the Htgh Court, on the points raised. Again, in case, where the High Court summarily dismissed an appeal, in one word 'dismissed', this Court, in Shreekantiah Ramayya Mtinipa!U iv. The State of Bon1bay(') (I} (1953] S. C.R. 8 .. 9. (2) [ 1955] I S. C.R. 1177.again reitera~ed the views expressed in the earlier decision, refer-r.ed. t~ above, and stated that ~ummary rejection of appeals, which raise i~sues of substance and importance, was not justified. After ad~ertmg. to the two decisions, noted above, this Court, again in Ch1t1aran1an Dal' v. State of West Bengal('), laid down that ther~ can be no doubt, whatever, that in dealing wi'h criminal appeals, brought before them, the High Courts should not sununarilv ~eject them, .if they raise. arguable and substantial points. Bca(-mg these prmc1ples m view, the question naturally arises as to whether the appeal filed, by the appellant, before the High Court .:>f Bomb·.y, raised any arguable point, or whether the questions raised wer.~ substantial and important.

In support of the first contention, Dr. Barlingay drew our attention to !he discussion, contained in the judgment of the learned Sessit'ns Judge, wherein he has placed strong reliance, upon the evidence, given by Dilawar, in Sessions Case No. 8 of 1966. He has also drawn .our attention, to the reliance, placed by the learned Sessions Judge, upon the answers given by Dilawar, as co-accus\:(l, when he waS examined, under s. 342 Cr.P.C. The evidence given by Di!awar, in the dacoity ca,e, counsel points out, is inadmissible, in these proceedings. The· answers given by him, as co-accused, when examined, under s. 342 Ct.P.C., can-not be taken into account, as against the appellant, whatever the position may be, so far a' Dilawar himself, is concern.~. There is no other evidence, counsel points out, on record, which has been taken into account, by the learned Sessions Judge. In any event, counsel urged, after eliminating the evidence, given by Dilawar in the dacoity case, and the answers given by him, in this trial, the High Court had to consider whether ·there was any other evidence, on r.xord, which would justify the Sessions Court finding the appellant guilty. By the dismissal of the appeal, sum-marily, counsel points out, the High Court has omitted to con-sider the serious iUegality, contained in the judgment of the Scs· sions Judge, in 1elying upon the evidence and statement of Dilawar.

The contention of .the J.zarned counsel, that gross illegality has been committed, by the learned Sessions Judge, in relying upon the evidence, given by Dilawar, in the dacoity case, and using the answers given by him, as co-accused, against the appellant, in our opinion, is well-founded. In paragraph 5 of its judgment, the Session's Court has referred u the fact that Dilawar, accused No. I, admits all the facts alleged. by the pro-secution, and that he has explained that he gave evidence as Abdul Gani at the instance of the appellant. Iri considering, agein, the question as to whether the appellant knew accused No. l as Dilawar or Abdul G<.ni, the learned Sessions Judge, in

(t) [ 1964) J S.C.R. 237.

paragraph 20, refers to the statement of Dilawar, wherein he refers to the circumst~nces, under which the appellant compelled him to come to the Court and pose himself as Abdul Gani. The ,learned Sessions Judge also refers, in paragraph 21 of his judgment, that Dilawar has made very clean breast of the whole· matter, when he· was examined by Mr. Wuikar, on June 14, I 966, in .the dacoity case. The learned Sessions Judge also refers to tho; .fact that Di!awar has given consistent version through-out, inculpating .lie appellant, both in his evidence in Sessions Case No. 8 of 1966, as well as in his statem,,nt given, in the present Sessions Trial. We are not referring to the various other points, adverted to, by the learned Sessions Judge. We have adverted to the above circumstances, only for the purpose of holding that the learned Sessions Judge, in coming to the con-clusion that the appellam is guilty, has placed considerable re-liance on the evidence of Dilawar, given in the dacoity case and to his statements, rnade und~t 5. '342 Cr.P.C., as co-accused, in 'the present trial. The legal position is quite clear, viz., that the evidence, given by Dilawar, in the dacoity case, cannot be used as evidence against the- appellant, who had no opportunity to cross-examining Dila\l(ar, in the said 1:ase; and the statements of Dilawar, as co-accused, made under s. :942 Cr.P.C., in the present trial, cannot be used against the appellant. We are not certainly inclined to accept .the contention of the learned counsel, for the State, that these very serious illegalities, com.tlitted by the learn-E ed Sessions Judge, must be considered to have been approved, by the learned Judges of the High Court, when tl\ey dismissed the appeal, summarily. In fact, we an~ inclined to think, that, by dismissing the appeal summarily, the learned Judges of the. High Court have omitted to ·note thr.se serious illegalities, contained in the judgment of the learned Sessions Judge. As to whether there is other evidence, on record, which would justify the con-F clusion that the appellant has been rightly convicted, is not matter on which it is necessary for us to embatk upon, in . thi:; appeal. That is essentially for the High Court, as Court of appeal, to investigate, arid come to.a conclusion, one.way or th<~ other.

The .;econd contention, urged by the learned counsel, for the appellant, is also, in our opinion, very substantial one. Accord-ing to the learned counsel, after the judgment was delivered, in the dacoity case, on June 22, 1966, and before the complaint was filed, by Mr. Waikar, on July 8, 1966, against the appellant, the appellant was not given an opportunity of being heard, as requir-H ed under s. 479A, Cr.P.C. This contention has been raised, even before the Committing Magistrate, 11-S perusal of the order of that Magistrate, will show. This objection, was again taken, before the learned Ses[0]ions Judge. The learned Sessions Judge

has. tak.~n the view that the show cause notice, issued by Mr. Wa1kar, t' lhe appellant, on June 14, 1966, is sufficient com-pliance with the p1ovisions of that section. The learned Sessions Judge is also of !he view that, under s. 479A, Cr.P.C., it does not matter whether notice is given before the finding is recorded in the judgment, or whether the notice is given, after the find:ngs are r.~corded in the judgment. The question, as to whe'her the appellant has been given an opportunity, ot being heard, under s. 4 79A. is again, not only in our opinion, an arguable point, but also substantial ~nd important one.

The discussion. contained above, will clearly show that the appeal. tiled by the appellant, before the H;gh Court of Bombay. was an arguable one, and it also raised substantial and important questions. for consideration at the hands of 'he High Court. We are therefore satisfied that the High Court was not justified, in dismissing the appeal. tiled by the appellant, summarily.

In vi.~w of this conclusion, the order of the High Court, dated April 27, 1967, dismissing Crl. Appeal No. 74 of 1967, is set aside, and the said appeal is remanded to the High Cou~t, fer fresh disposal, in the light of the "bservations, contained m this judgmem. This appeal is allowed. accordingly.

Appeal allowed and remanded.