N Criminal Appeal No 718 of 1979 From the Judgment and Order dated 11 10 1979 of the Gujarat High Court in Criminal Appeal No 11077
AK Trivedi and SS 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 
The three appellants were tried by the Sessions Judge for commit ting offences punishable under section 302120 B323324 read with section 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 11077 allowed the appeal of the State and reversed the order of acquittal by the Learned Sessions Judge and convicted them for offences under section 302120 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 section 384 of the Code of Criminal Procedure but before signing 355 the judgment a decision of this Court Sita Ram  Ors
vs State of UP was brought to our notice wherein the scope of the power of the Courts to dismiss an appeal summarily under section 384 of the Code of Criminal Procedure has been referred
In that case an appeal was preferred to this Court under section 379 of the Code of Criminal Procedure 1973 read with section 2a of the 
The appeal was listed for preliminary hearing under Rule 151 c of OXXI 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  2 the power of the Supreme Court to frame rules under article 145 of the Constitution cannot be extended to annul the rights conferred under an Act of Parliament and 3 an appeal under the 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 OXXI 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 151 of OXXI 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 1341
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 section 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 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 section 384 of the Code of Criminal Procedure
Neither was it pleaded during the arguments that section 384 of the Code of Criminal Procedure is ultra vires of the Constitution
As the question of validity of section 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 51c of OXXI 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 section 384 of the Code of Criminal Procedure
The order cf dismissal of the appeal summarily will stand PBR Appeal dismissed


Summary:
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 2a of the  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 vs State of UP  which according to them held that the Supreme Court had no power to summarily dismiss an appeal under section 384 Cr
PC in an appeal under section 2a of the 1970 Act
Dismissing the appeal
 HELD The decision in Sita Ram vs State of UP 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 151c of order XXI of the Supreme Court Rules should be read down as indicated in that decision
356F