iminal Appeal No165 of 1967
Appeal by special leave from the order dated April 27 1967 of the Bombay High Court Nagpur Bench in Criminal Appeal No 74 of 1967
W section Barlingay and A G Ranaparkhi for the appellant
H R Khanna and section P Nayar for the respondent
89 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 section 195 and section 196 read with section 34 IPC 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 challenged his conviction and sentence passed against him before the High Court of Bombay in Criminal Appeal No 74 of 1967
A 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 leave limited to the question asto 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 circumstances under which the appellant who was a 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 a 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 Nagpur in Sessions Case No 8 of 1966
In that trial the prosecution had to prove certain recoveries made on the basis of three memos which have been 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 recoveries 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 a suspicion that the first accused in these proceedings who claim 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 L10Sup
CI68 7 90 brought before him and further examined him in Sessions Case No 8 of 1966
The witness appears to have stated that he was not Abdul Gani but really Dilwar and that he had come to the Court on June 10 1966 and given evidence as Abdul Gani on the compulsion and threat of the present appellant
On the same day ie June 14 1966 Mr Waikar issued a notice to the appellant to show cause why a complain should not be laid against him for offences under sections 195 196 and 205 IPC By the said notice the appellant was directed to appear before the Court on June 16 1966
The appellant appeared and pleaded on June 16 1966 that he had not committed any offence and that he bona fide believed that the present 1st accused was Abdul Gani and that he had never compelled one Dilawar to appear before the Court and give evidence as Abdul Gani The appellant was further examined in the dacoity case on Juno 17 1966 and he was also cross examined by the accused in the dacoity case on June 22 1966 the teamed Sessions Judge Nagpur ac quitted all the accused in the dacoity case
In the said judgment the learned Sessions Judge has stated that the present accused No 1 intentionally gave false evidence and the appellant intentionally fabricated false evidence with the intent to procure conviction of the accused in the dacoity case and that it was highly expedient in the interest of justice and in the interest of eradication of the evil of perjury and the fabrication of false evidence that both of them should be prosecuted
Thereupon the learned Sessions Judge filed the complaint against the appellant and Dilawar on July 8 19669 in the Court of the Joint Magistrate First Class IV Court Nagpur
The Joint Magistrate by his order dated January 27 1967 held that a prima facie case against both the accused under sections 195 and 196 read with section 34 IPC has been made out and accordingly after framing charges he committed them to the Sessions Court to face trial
The learned Sessions Judge Nagpur by his judgment dated March 31 1967 has found each of the accused guilty under section 195 and section 196 read with section 34 IPC 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 elaborately
We will only advert to some of the material circumstances that have been placed before us by the learned counsel 91 for the appellant to hold that this was certainly not a case in which the High Court was justified in dismissing the appeal summarily
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 Sessions Trial No 8 of 1966 and on the statements made by Dilawar as first accused when he was examined under section 342 CrPC in the present Sessions Trial and ii that the provisions of section 479A Cr
PC have not been complied with when Mr Waikar filed the complaint as against the appellant on July 8 1966
Mr H R Khanna learned counsel appearing for the State of Maharashtra on the other hand submitted that the learned Sessions Judge has considered the question of non compliance with the provisions of section 479A Cr
PC and he has rejected the appellant s contention in that regard
Counsel also pointed out that apart from the evidence of Dilawar 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 account by the learned Sessions Judge for convicting the appellant
When the High Court dismissed the appeal though summarily it must be presumed that the High Court has agreed with the views expressed by the learned Sessions Judge in the present judgment
Therefore we understood counsel to urge that the High Court was perfectly justified in dismissing the appeal summarily
There is no controversy that the appellant who has been convicted on trial by the Sessions Judge had a right of appeal to the High Court under section 410 Cr PC The appellant was also entitled under section 418 Cr
PC to agitate in his appeal before the High Court findings of fact recorded against him as also questions of law available to him
No doubt under section 421 Cr
PC the Appellate Court may dismiss an appeal summarily if on a perusal of the petition of appeal and a 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 vs The State of Bombay1
This Court has held therein that in a case which prima facie raises no arguable issue a summary dismissal of the appeal may be justified but in arguable cases a summary rejection order must give some indication of the views of the High Court on the point raised
Again in a case where the High Court summarily dismissed an appeal in one word dismissed  this Court in Shreekantiah Ramayya Munipalli V The State of Bombay1 1 19
2  92 again reiterated the views expressed in the earlier decision referred to above and stated that summary rejection of appeals which raise issues of substance and importance was not justified
After adverting to the two decisions noted above this Court again in Chittaranjan Das vs State of West Bengal1 laid down that there can be no doubt whatever that in dealing with criminal appeals brought before them the High Courts should not summarily reject them if they raise arguable and substantial points
Bearing these principles in view the question naturally arises as to whether the appeal filed by the appellant before the High Court of Bombay raised any arguable point or whether the questioned raised were substantial and important
In support of the first contention Dr Barlingay drew our attention to the discussion contained in the judgment of the learned Sessions 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 accused when he was examined under section 342 Cr
PC The evidence given by Dilawar in the dacoity case counsel points out is inadmissible in these proceedings
The answers giver
by him as co accused when examined under section 342 Cr
PC cannot be taken into account as against the appellant whatever the position may be so far as Dilawar himself is concerned
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 record 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 consider the serious illegality contained in the judgment of the Sessions Judge in relying upon the evidence and statement of Dilawar
The contention of the learned counsel that a 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 a accused against the appellant in our opinion is well founded
In paragraph 5 of its judgment the Session s Court has referred to the fact that Dilawar accused No 1 admits all the facts alleged by the prosecution and that he has explained that he gave evidence as Abdul Gani at the instance of the appellant
In considering again the question as to whether the appellant knew accused No 1 as Dilawar or Abdul Gani the learned Sessions Judge in 1  93 paragraph 20 refers to the statement of Dilawar wherein he
refers to the circumstances 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 a very clean breast of the whole matter when he was examined by Mr Waikar on June 14 1966 in the dacoity case
The learned Sessions Judge also refers to the fact that Dilawar has given a consistent version throughout inculpating the appellant both in his evidence in Sessions Case No 8 of 1966 as well as in his statement 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 conclusion that the appellant is guilty has placed considerable reliance on the evidence of Dilawar given in the dacoity case and to his statements made under section 342 Cr
PC 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 Dilawar in the said case and the statements of Dilawar as co accused made under section 342 Cr
PC 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 committed by the learned Sessions Judge must be considered to have been approved by the learned Judges of the High Court when they dismissed the appeal summarily
In fact we are inclined to think that by dismissing the appeal summarily the learned Judges of the High Court have omitted to note these serious illegalities contained in the judgment of the learned Sessions Judge
As to whether there is other evidence on record which would justify the conclusion that the appellant has been rightly convicted is not a matter on which it is necessary for us to embark upon in this appeal
That is essentially for the High Court as a Court of appeal to investigate and come to a conclusion one way or the other
The second contention urged by the learned counsel for the appellant is also in our opinion a very substantial one
According 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 required under section 479A Cr
This contention has been raised even before the Committing Magistrate as a perusal of the order of that Magistrate will show
This objection was again taken
before the
learned Sessions Judge
The learned Sessions Judge 94 has taken the view that the show cause notice issued
by Mr Waikar to the appellant on June 14 1966 is a sufficient compliance with the provisions of that section
The learned Sessions Judge is also of the view that under section 479A Cr
PC it does not matter whether a notice is given before the finding is recorded in the judgment or whether the notice is given after the findings are recorded in the judgment
The question as to whether the appellant has been given an opportunity of being heard under section 479A is again not only in our opinion an arguable point but also a substantial and important one
The discussion contained above will clearly show that the appeal filed by the appellant before the High Court of Bombay was an arguable one and it also raised substantial and important questions for consideration at the hands of the High Court
We are therefore satisfied that the High Court was not justified in dismissing the appeal filed by the appellant summarily
In view 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 Court for fresh disposal in the light of the observations contained in this judgment
This appeal is allowed accordingly
VPS Appeal allowed and remanded


Summary:
During the trial for an offence of dacoity one of the witnesses gave false evidence and stated on further examination that he did so at the instance of the Sub inspector who investigated the case
The Court gave notice to the Sub inspector to show cause why a complaint should not be laid against him for offences under sections 195 196 and 205 IPC and he appeared and showed cause
After the trial and at the time of delivering judgment in the dacoity case the Court found that the witness had intentionally given false evidence and that the Sub inspcctor had intentionally fabricated false evidence and thereafter filed a complaint against them before the Joint Magistrate
They were committed to the Sessions Court to take their trial for offences under sections 195 196 and 34 IPC as first and second accused respectively
The Sessions Judge found them guilty
The Sub inspector second accused appealed to the High Court and contended that  1 the Sessions Judge had committed a gross illegality in relying as against the second accused upon the evidence of the first accused as a witness in the earlier dacoity case and the statement of the first accused under section 342 Cr
PC before the Sessions Judge and 2 the show cause notice was not sufficient com pliance with the provisions of section 479A Cr
PC as the notice should have been given after the judgment in the dacoity case
The High Court dismissed the appeal summarily in one word dismissed  without discussing the questions of law and without considering whether there was sufficient other evidence to convict the appellant
In appeal by the Sub inspector to this Court HELD  The appeal before the High Court was an arguable one and it also raised substantial and important questions for consideration by the High Court
The High Court was therefore not justified in dismissing the appeal summarily
94C Mushtak Hussein vs State of Bombay  Shreekantiah Ramyayya Munipalli vs state of Bombay  and Chittaranjan Das vs State of West Bengal  followed