MUSTAQ AHMED MOHED HUSSAIN MUKHTAR HUSSAIN ALI HUSSAIN versus THE STATE OF GUJARAT

MUSTAQ AHMED MOHED HUSSAIN MUKHTAR HUSSAIN ALI HUSSAIN

THE STATE OF GUJARAT March 13, 1973

(A. ALAGIRISWAMI, 1. D. DUA AND C. A. VAIDIAL!NGAM, JJ.]

Code of Criminal Procedure s. 421-Power of l(igh Court to 'dismiss appeal in limine-When may be exercisted-Higl] Court must record reasons and it is not sufficient to sa,v 'dis1nissed'.

Jn this appeal by special leave the short question requiring deter-mination 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, Jam~gar for offences under s. 420 read with ss. 511 and 34, I.P.C. and under s. 474 read with s. 34, JJ!dian Penal Code,

Allowing the appcal,

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 SUlllIOOry 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 proper scrutiny of the petition of appeal and the impugned judgirumt or order. [673G]

The power of dismissing appeals in limine should be exe'rdsed spar-ingly and with judicious caution so that no case raising arguable points, \Vhether of law or of fact requiring re-appraisal of evidence, goes with-out requisite scrutiny. The requireme;at of recording reasons for summary dismissal. however concise, serves to ensure proper function-ing 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. [6740]

The contention that when the trial court records well reasoned judgment, then, even though arguable points on the 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 oourt, was unacceptable. Unless the challC!llge can be held to be prima facie unimpressive and unarguable the High Coun would be well-advised to go into the points canvassed a'1C) record· 'its reasons. Such Course would be in accord with the st itutorv intendment, and also of assistance to this Court in more satisf: ctorilv dealing with appeals under Art. 136 of the Cqnsti-tution. [6770]

In the present case the trial court's judgment mentioned several di.scTepancies in the prosecution evidence. The appetlant.s were not unjustified in claiming to have the evidence on the record re-examined by the Hi~h Court for coming to its own conclusions. The points raised in the petition of appeal could' by no means be said to be unarguable.

Without expressing any opinion on the merits of the case the Court sent the case back to the High Court for fresh \l<cision in the fight of this Court's obe,ei'vation.

U. /, S. Chopra v. State of Bombay, [1955] 2 S.C.R. 94, Queen Empress v. Ram Narain & anr., l.L.R. 8 All. 514, Mohamad Ayub Abbas Raut v. The State of Maharashtra, Crl. A. No. 145 of 1961 decided on March 2.5, 1963, Mushtak HusMlin v. The Stale of Bomba,y, [1953) S.C.R. 809, Bhagat Singh v. State of Rajasthan, Cr!. A. No. 38 of 1969 decided on September 17, 1969, Shankar Beldar v. The State of MahGrashtra, Or:!. A. No. 95 of 1969 decided on September 18, 1969, K. K. lain v. State of Maharashtra A.LR. 1973 S.C. 243, /iwan Prakash v. State of Milharashtra, A.LR. 1973 S.C. 278, Shaikh Mohd. Ali v. State of Maharashtra, [1972] 2 S.C.C. 184 end Rajertdrapaul Ran=aran Dass Sharma v. The State of Maharashtra, Cr!. Appeal No. 264 of 1972 decided on Febh!ary 23, 1973, re-c ferred to. ·

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, 1.P.C. and under s. 474· read withs. 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 pos• session of forged receipts knowing them to be forged and of dis-honestly or fraudulently using the forged receipts as genuine knowing them to be forged, in furtherance of 1 he common intention of cheating the Indian Railways or attempting to cheat them.

The points which arose lor determination in the trial court as statlld in its judgment were :

" ( l ) Whether the prosecution has proved that on or about 7-8-71 at Jam.nagar accused no. l Mustaq Ahmed Mohmed Hussein and accused no. 2 Mukhtar Hussein Ali Hussein Sayed in furtherance of c0mmon intention of both to cheat the Indian Railway by using forged

[1973] 3 S.C.R,

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 prosecu1ion 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 Rail-way 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 off~nce punishable under section 468 read with section 34 of the Indian Penal Code ?

c· [. ][. ])-

( 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, J.P. Code? · ·

( 4) Whether 1he prosecution has proved that on or about 7-8-71 bath 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, J.P. Code ?

( 5) Whether the prosecution has proved that on or about 7-8-71 accu,ed nos. 1 and 2 were at J"mnagar and in furtherance of common intentfon of both "f 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 deli-ver them Coal Wagons in question and thereby commit-. 1ed the offence punishable under section 420 read with section 34 and s. 511 of the Indian Penal Code?"

On ooints nos. 1 to 3 ·the decision· of the. trial court went in ·favour of the appellants and against the prosecution but on paints nos. 4 and 5 the anpellant~ were held guilty ·and convicted. They were sentenced under s. 420 read with ss. 511 and 34, I.P.C. to · rigorous imori~onment for three years and fine of Rs . .1,000/-with further rigorous imorisonment for nine month~ in ·case of default in payment of fine. similar sentence was imposed on each one of them for the offence under ss. 474/34, l.P.C. - Both, . . . I '

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 poin1s raised .hat 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 Conn the appellants challenged all the adverse findings of the trial court, as they were entitled to do under s: 410 read withs. 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· the testimony of the various eye-witnesses wa:; ·criticised and ilie 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 "diomisscd" without indicating whether it also edorsed 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 prosecli1ion and the defence. .

In this Court it was seriously contended on behali of the appel-lants that the High Court h~d gravely erred in summarily dismis- · sing the appeal in limine without disclosing even broadly i1s reasons for rejecting the various grounds of attack against the appraisal of the prosecution evidence by the trial court. This, according 1o the appellants learned counsel, is against the consistent and uni-· form 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 jus1ice 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 right to ask for 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 suminarjr dismissal can be pas•ed only if the court con-siders that there is no sufficient ground for interference. This conclusion has to be arrived at judicially after proper scrutiny, of the petition of the appeal and the impugned judgment or order. ln U. f. S. Chopra v. State.of Bombay([1]) Bhagwati J., speaking (11 (10551 2 S.C.R. 94.

for the majority expressed the view that the hearing under s. 421 is intended for the purpose of detem1ining whether prima facie case for 1he 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 prima facie case for !he 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 view to deteffiline whether the conviction could be sustained or the sentence passed could be reduced. No doubt the question directly arising in that case was somewhat difieren-but the observations with respeet to <the purpose of the hearing under s. 421, Cr. P.C. would be equally applicable to the consi-deration of the present contr0versy. If such be the real purpose of hearing contemplated biy 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 withoU't requisite scrutiny. The requirement of recording reasons for summary dismissal, however concise, serves to ensure proper functioning of the judicial process. Reasons are, therefore. ad-visedly required by the decisions of this Court to be given for rejecting an appeal summarily under s. 421, Cr. P.C. Sinlilar view was taken by the Allallabad High Court as far back as 1886 in Queen Empress v. Ram Narain & Anr.('). Although that was case in which the appeal had been dismissed by the Sessions Jud~e. the considerations prevailing in such 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 ap-proach 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 speakinJ!: orders justice is also seen to be done.

Turning now to the decisions directly dealing with the point raised by the appellants, 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, inducinJ!: them to dismiss the appeals in limine. The learned counsel Oil behalf of the State, Mrs. Uffilila Kanur. without disputing that where arguable and substantial questions of faot or law are raised on appeal the High Court is, according to the decisions of this Court, expected to write speaking order however brief, dealing with and disnosine of the points canvassed before it submitted that in the present case there were no arguable or •ubstantial points involved and, therefore, the High Court was justified in dismissing the appeal In limine without indicating its

reasons therefor. She, however, .referred us specifically to an un-reported 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 1:fy this Court in its later decisions disapproving the dismissal i11 /imi11e 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 limi11e, with one word "dismissed", appeals from the Sessions Courts even where arguable points of fact or law are apparent on the face of the im-pugned judgment or order. Mrs. Kapur, however, soon clarified her position by submitting that ~he 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 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 <lea! with the various points raised in the petition of appeal and to record its reasons for rejecting various grounds of challenge can-' vassed before it.

In our view, Mohd. Ayub Abbas Raut (supra) does not in any way cast doubt on the soundness of the various reasons which have consi!!lently prevailed with this Court firmly disapprov-ing dismissal in /imine 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 find-ings of the trial coUrt not considered erroneous by the High Court the latter was justfied in dismissing the appeal in limine as it bad full power to do so in exercise of its discretion under s. 421, Cr. P.C. That the High Court has power to dismiss in limine bas always hleen accepted by this Court. What this Court has consis-G tently and uniformly laid down is that where arguable points ol 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 Hi!!h Courts in which, either in ignorance of the legal posi-II tion firmly settled by this Court in string of authorities, or erroneously thinking that there is no arguable point of fact or (I) Crl. A. No. 145of1961 decided on March 25. 1963.

law involved in an appeal under s. 410, Cr. P.C. from the judg-ment of Sessions Court, actually and prima facie raising arguable pomts on the question ot appreciation of evidence, appeals are dismissed in limine with one word "d,missed" without indicating its reasons. It is because of such cases that we consider it neces-s;uy once again to refer to some of the decisions of this Court in which the legal position has been declared and ~e-stated.

ln Mushtak Hussein v. The State of Bombay([1]) Mahajan J~

(as he then was) observed :

"With great respect we are however CO!litrained 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 considera'lion th0ugh 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 ol 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(') Bhargava and Hegde JJ ., sent the case back for re-decision as the appeal had ~n dismissed summarily. The same Bench in Vishwanath Shankar Beldar v. The State of Maharashtra(') adooted ·similar course. The view expressed in Mush•ak Hussein (supra) was reiterated in K. K. lain v. State of Maharashtra('). In Jiwan Prakash v. State of Maharashtra(•) 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 ba~k for re-hearing. In Shaikh Mohd. Ali v. State of Maharashtra(') Shelat J.; soeak-ing for the Court a~ain emnhasised that High Court would not be justified in dismissing summarily and with<'lut speakinl? order an appeal raising arguable questions either factual or legal. Ro-fe•ence in this decision was made to Murhtak Hunein <•upra) and · Jiwan Praka•h (supra). Si".ce then O" .several f'CC&<ions again this Court ha~ re•ffirm~ this view. The moll! recent dee!-· &ion in which this Court felt con•trai"e<l to rem•"d th~ ca•e to the Hi ~h Court for fresh decision is Rajendrapaul Ramasaran

(11 [1953) S.C.R. 809 .. 121 Crl. A. No. 3R or 1969 decided on September 17. 1969. m Crl. A. No 9S or 1969 decided on September 18. 1%9. 141 A.l.R. 1973 S:C. 243. (S) A.l.R. (6) (1972) 2 s.c.c. 784.

Dass Sharma v. The State of Maharashtra(''). 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 well-rea-B soned judgment, then, even though arguable points on the question ol. credibility of witnesses arel raised, i1: 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 cou~. is unaccept-able. The right of appeal conferred on convicted person gives him right to challenge the reasoning and finding on the appraisal of evidence both or!!_l and documentary by the trial court and unless the challenge can be held to be prima facie unimpressive and unarguabfo the High Court would be well-advised to go into the points canvassed and record its reasons. Such 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 safe conclusion the entire evi-dence en 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 wor]>ing of the Railways as regards the movement of goods wagons and, according to the trial court, had !here been 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. )Vere held not proved, th~re 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 docu-ments 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. I.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

[1973) 3 S.C.R.

for coming to iis own conclusions, of course, after considering the views of the trial court and giving due weight to that court's rea-soning and conclusion. Recording ol reasons by the High Court for its conclusion on all the relevant aspee'ts was thus necessary because even the trial court had not completely and unr<:servedly accepted the evidence led by the prosecution and the charges press-ed against the appellants. The points raised as disclosed in the peti-tion of appeal could by no means be said to be unarguable. With-out expressing any opinion on the merits of the case, we are cons-trained to allow this appeal and send the case back to the High Coul'I for 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 ;fresh decision.

Appeal allowed.