.. -~

SHIVAJI NARAYAN BACHHAV

STATE OF MAHARASHTRA

August 18, 1983

(0. CHINNAPPA REDDY AND E. $. VENKATARAMIAH, JJ.j

Special Leave to appeal-Grant of in cases where the High Court summarily rejects the appeal against conviction and sentence in limine-Order XXI of the Supreme Court Rules read with Arricle 136 of the Constitution-Exercising such a power to dismiss an appeal in limine under Secion 384 .nf the Criminal Procedure Code by the High Co14rf, would iantamount to denial of right of appeal .

The petitioner was convicted for the offence u/s 302 1.P.C. and sentenced to life imprisonment by the Sessions Judge. The appeal preferred. by him was dismissed by the High Court of Bombay in limine. Hence the appeal by

Special leave.

Allowing the petition and directing the High Court to admit the appal and deal with it according to law, the court

HELD : An appellate Court has the undoubted power to dismiss an appeal in limine, as provided under section 384 of thC Code of Criminal Procedure. But, it is a power which must be exercised sparingly and1with gieat circun1spection, more so in a case where the conviction is for murder and the sentence is one Qf imprisonment for life, which are serious enough \natters for the High Court o warrant admission of the appeal and fair and independent consideration of the-evidence by the High Court. Summary rejection of the appeal with the laconic expression, "dismissed" is a drastic step in such cases.

[653 C.E)

To so reject an appeal is to practically deny the right of appeal. Except in certain cases when an accused person has pleaded guilty and in petty cases, . every person convicted of an offence has a right. of appeal under -the Code; an appeal may be bqth against conviction and on facts and law. A cori.victed person is entitled to ask an appellate Court to reappraise the evidence and come to its own conclllsion. Therefore, it is necessary to make a speaking Order, while dismissing a criminal appeal. (653 E-F] ·

Mustaq Hussain v. State of Bombay, [1953] S.C.R. 809; Ramayya v.

State of Bombay, A.I.R. 1955 S.C. 287; Vishwanath Shankar Reidar v. State. of Maharashtra, [1969J 3 S.C.C. 883; Siddanna Appa Rao v. State of Maharashtra A.l.R. 1970 S.C. 977; Narayan Nathu Naik v. State of Maharashtra, A.I.R'. 1971 S.C. 1656; Govinda Kadutji Kadam v. Slate of Maharashtra, A.J.R. 1970 §.<;:. 1033; Sha; k Mohmed AU v. State of Maha, rashtr~, A.I.R. 1973 S.<;:. 43;

[652

SUPREME COURT REPORTS [1983) 3 s.c .• R.

K. K Jainv. State'{Jf/ofahrashtra, A.~.R. 1973 S.C. 243; Jeewan Prakash v.

A State of Maharashtra, A.I.R. 1973 S.C. 278; Mustaq Ahmed v. State of Ma!U>- rashtra, A.LR. 1973 S.C. 1122; Krishna Vithu. Suros!ie v. State of Maharashtra,· A.I.R. 1974 S.C. 274; Sampaia Tatyada Shinde v. State of Maharashtra, A.I.R. 1974 S.C. 791; and Dagadu v.

Stte of Maharashtra, 1981 CrJ. L.J. 724; reiterated.

B CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 386

of 1983.

from tjie Judgment and Order ated the 23rd June, 1981 of t)le High Court of )Jombay in Cr!. Appeal No. 1138 and 1144 of 1980.

S. N. Jha, A micus Curiae for the Appellant.

M, N. Shroff for the Respondent.

D The Order of the Court was delivered by

. G

CHINNAPPA REDDY, J. Special Leave Granted.

The appeal of the accused to -the High Court was _dismissed . su111marily with the one word 'dismissed', placing this Court in a most embarrassing position in dealing with the special leave petition under Art. 136 of the Constitution. Such summary rejection of appeals by the High Court has been disapproved by this Court more than thirty years ago in M11shtaq Hussain v. State of Bombay(') and therGl\f(er, over the years, in .a series of cases from the same High Court : Ramayya v. State of Bombay('), Vishwanath Shankar Be/dar v, $f!'te pf :Maharashtra(•), Siqdanna Appa Rao v. State. of Maharashtra('). Narayan Nathu Naik v. State of Maharashtra('), Govinda Kadutji Kadam v. Stale of Maharashtra('), Shaik Mohamed Ali v.

State of Maharashtra('), K. K. Jain v. State of Maharashtra(•), Jeewan •

(1) [19531 S.C.R. 809.

(2) A.l.R. 1955 S.C. 287.

(3) (1969) 3 s.c.c. 883.

(4) A.I.R. 1970 S.C. 977.

(5) A. J.R. 1971S.C.1656.

(6) A.I.ll. 1970 S.C. !033.

(7) A.f.R. 1973 S.C. 43.

(8) A.I.R. 1973 S.C. 243,

SHIVAJI NARAYAN v. MAHARJ rn1RA ( CMnnoppa Reddy, J. 653

Prakash v. State of Maharashtra('), Mushtaq Ahmed v State of . Maharashtra('), Krishna Vitim Suroshe v. State of Maharashtra('),

Sampaia Tatyada Shinde v. State of Maharashtra('), Dagadu v. State of Maharashtra(').

We are pained, and not a little perturbed, that despite the long series of judgments all arising from cases from the same High Court, the High Court has not chosen to correct itself and continues in the error of its ways. Except in certain cases when an accused person has pleaded guilty and in petty cases, every person convicted of an offence has a right of appeal under the Crim.inal Procedure Code. An appeal may be both against conviction and sentence and on facts and law.

A convicted person is entitled to ask an appellate Court to reappraise the evidence and come to its own conclusion. -An appellate Court has the undoubted power to dismiss an appeal in limine. Section 384 of the criminal Procedure' Code provides _for it. But, it is a power which must be exercised sparingly and with great circumspection. One would think a conviction for murder and a sentence of imprisonment for life, as in the case before us, were serious enough matters for the High Court to warrant 'admission' of the appeal -and fair and independent 9onsideration of the evidence by the High Court. Summary rejection of the appeal with the laconic expression 'dismisssed' seems to be a drastic step in such cases. To so reject an appeal is to practically deny the right of -appeal.

We cannot also overemphasise the importance of the High Court making a speaking order when dismissing a Criminal Appeal in liinine. "The requirement of recording reasons for summary disrpissal, however concise, serves to ensure proper functioning of the judicial process". There must be some indication that the High Court addressed "itself to the questions at issue and had tiie record before it. In the present case there is not even an indication whether the record had been called for and whether it was before the Court. We have little option but to set aside the order of the High Court The High Court may now 'admit' the appeal and deal with it according to law.

S, R.

(I) A, J.R. 1973 S.C. 278.

(2) A.1.R. 1973 S.C, 1122.

(3) A.LR. 1974 S.C 274.

14) A.l.R. 1974 S.C. 791.

(5) (1981] Cr!. L.J. 7~1,

• fetitio.n allowed.