. '

SIDDANNA APPARAO PATIL

STATE OF MAHARASHTRA

March 6, 1970

[A. N. RAY AND l D. DuA, JJ.J

909.

Code of Criminal Procedure (5 of 1898), s. 410-Appeal to Higb Court involving substantial and arguable questions-Appeal dis1nissed in in limine summarily-Propriety.

The appellant and another were char&ed under s. 302 read with s. 34, I P.C. The second accused was acquitted but the appellant was convicted and sentenced to imprisonment for life by the Sessions Court. In appeal to the High Court, the appellant raised various arguable and substantial questions of law and fact, but the High Court dismissed the appeal in li1nine summarily-Propriety,

I appeal to this Court by special leave,

D HELD : The order of dismissal of the appeal should be set aside and

the matter remitted to tbe High Court for fresh consideration. [912 DJ

The High Court has undoubtedly the power to dismiss summarily an appeal under s. 410 Cr. P.C .. but, it should not do so if the appeal

raises arguable and substantial points.

Further, in such appeals. the High Court should give reasons for the rejection of the appeal. [910 E; 912 Cl

Mushtak Hussain v. State of Bombay, [1953] S.C.R. 809, Govirtda Kadtuji Kadam & Ors. v. St>ate of Maharashtra, [1~70] 3 S.C.R. 525 and Chittaranjan Das v. State of West Bengal [1964] 3 S.C.R 237, followed. 2n. followed.

CRIMINAL

APPELLATE JURISDICTION : Criminal Appeal No. 180 of 1967.

Appeal by special leav.e from the order .dated December 5, 1966 of the Bombay High Court in Criminal Appeal No. 1444 of 1966.

The appellant did not appear.

M. S. K. Sastri and s: /'. Nayar, for the respondent.

The Judgment ol the Court was delivered by

Ray, J.

This is an appeal by special leave against the judgen~ f te J:li~ Court of Bombay dated 5 December, 1966 d1sm1ssmg m limme the appeal preferred against the judgment and order dated 16 August, 1966 passed by the Sessions Judge Sholapur.

The High Court by an order datCd 3 April 1967 also refused leave to appeal to this Court. '

The appellant was accused No. I.

He was convicted under section 302 read with section 34 of the Indian Penal Code and sentenced to imprisonment for life.

Broadly stated, the charge against the appellant was that he in conspiracy with his brother, accused No. 2 committed murder

of Revansidhappa Shivappa Patil and Mahadeo Sidran Patil.

The B defence of both the appellant and his brother was one of total denial.

The right to prefer an appeal from sentence of Court of Sessions is conferred by section 410 of the Criminal Procedure Code. The right to appeal is one both on a matter of fact and a matter of J.aw.

It is only in cases where there is a trial by jury that the C right to appeal is under section 418 confined only to a matter of law.

This Court in several decisions dealt with section 410 of the Criminal Procedure Code and the rights of the appellant thereunder. Reference may be made to one of the earlier decisions of D this Court in Mushtak Hussain v. Tire State of Bombay(') and the recent decision in Govinda Kadtuji Kadam & Or.•.' v.

State of Maharashtra(') where several previous decisions of this Court have been noticed.

The following principles emerge from the decisions; first, the Appellate Court undoubtedly has power of summary dismissal; E secondly, if the appeal raises arguable and substantial points the High Court should give reasons for rejection of appeal; thirdly, rejection of an appeal by using only one word of dismissal causes difficulties and embarrassment in finding out the reasons which weighed with the High Court in dismissal of the appeal in limine; fourthly this Court in Chittaranjan Das v. State of West Bengal(') F held that the High Court should not summarily reject criminal appeals if they raise arguable and substantial points.

As to what is an arguable and a substantial point may be illustrated with reference to a few decisions.

In Nara.van Swami v. State of Maharashtra(') this Court stated G that a ground in preferring an appeal from the judgment of the Sessions Court that a gross illegality was committed in relying upon the evidence given by a co-accused in a dacoity case and using the answers given by him as a co-accused against the accused appellant would be a substantial question.

Again it was noticed that denial of an opportunity to a:n appellant in a dacoity H

(I), {1953] S.C.R. 809.

(J) [19641 l S.C.R. 237.

(2) !1970] 3 S.C.R. 525.

(4) [1968] 2 S.C.R. 88.

SIDDANNA V. MAHARASHTRA (Ray, J.) 911

case of being heard as required under section 479A of the Criminal Procedure Code would be an arguable point.

in an unreported decision of this Court in Bhanwar Singh v.

State of Rajasthan('), it was held that failure to consider the position in which the appellant was placed when his immediate superior admittedly ordered him to bring out the currency notes which were required not for the purpose of investigation of any case but only for the purpose of being shown to a person whom the sub-inspector wanted to help in laying down a new trap would be a substantial ground in a conviction under Prevention of Corruption Act and section 409 of the Indian Penal Code.

In another unreported decision of this Court in Vishwa1J0th Shankar Beldar v. State of Maharashtra(') it was said that if the trial Judge did not accept the witness as a wholly truthful witness in the light of reports sent by police officers and his statement under section 162 of the Criminal Procedure Code and remarked that a portion of the evidence was clearly an improvement it was necessary for the High Court to consider the evidence afresh.

In another unrepotted earlier decision of this Court in Bashir -Husain Peshimani v.

The State of Maharashtra(') the offences alleged were under the Indian Penal Code, the Sea Customs Act, 1887 and the Foreign Exc\lange Regulation Act, 1947 in respect of gold alleged to have bee, n brought into India in pursuance of a conspiracy.

There was oral testimony of accomplices.

That evidence was held by the trial Court to have been corroborated by the actual finding of gold from the place of one of the accused.

Another piece of evidence was the recovery of duplicate set of keys at the residence of accused No. 2.

Reliance was placed by the trial court on the confession of the appellant which had been retracted as corroborative evidence of the accomplice witnesses.

In preferring appeal to the High Court the grounds urged were that there were serious infirmities in the evidence and the manner in which the keys were recovered was open to objection.

The High Court dismissed the appeal in limine: This Court remitted the matter back to the High Court for disposal of the appeal in accordance with law by expressing the view that these were arguable points. In the same case ir was said that it would be open to the appellant to canvass before the High Court in appeal every point even on a question of fact in his favour to demolish by reference to other material the evidence that had been used against him.

In the preseni case, one of the contentions of the appellant in the appeal preferred was that the appellant was charged under

J) Criminal Appeal No. 38of1969 decided on 17 September, 1969.

(2) Criminal Appeal :No. 95of1969 dececided on 18 September 1969.

(3) Criminal Appeal No. 262of1968 decided on 20 Dcchml:er, 19f8.

section 302 read with section 34 of the Indian Penal Code for committing murder of both the Patils in furtherance of the common intention of the appellant and accused No. 2 and on accused No. 2 bing acquitted the appellant could not be convicted with the aid of section 34. ln aid of that contention reliance was placed on the decisions of this Court in Prabhakar Navale v. State of Bombay(') and Krishna G. Patil v. State of Maharashtra(').

Another contention raised in the appeal was that it would be an error to hold that there was inititnacy between the appellant and Nilava wife of Babanna on the evidence of third parties when neither Babanna or Nilava gave evidence.

We have only referred to two contentions amongst several others to illustrate both arguable and substantial matters of law and of fact.

In the present case the High Court dismissed the appeal by a single word and it is not possible to know the reasons which persuaded the High Court to dismiss the appeal.

In the result the appeal is allowed.

The order of dismissal of the appeal is set aside.

The matter is sent back to the High Court for fresh con; ideration on hearing the parties.

V.P.S.

Appeal allowed.

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(I) A.LR. 1963 S.C. 51.

(2) A.LR. 1963 S.C. 1413.