Case ID: 2298

Judgment:
iminal Appeal No.165 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	 I.P.C. 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 as	to 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. CI/68 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	 i.e.	 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	 I.P.C. 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	 I.P.C.	 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	 I.P.C.	 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	 Cr.P.C.	 in the present Sessions Trial; and (ii) that the provisions of section 479A	 Cr. P.C.	 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. P.C.	 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 P.C. The appellant was also entitled	 under section 418 Cr. P.C.	 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. P.C.	 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 Bombay(1). 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 Bombay(1) (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	 Bengal(1)	 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. P.C. 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. P.C.	 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. P.C.	 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. P.C.	 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. P.C.	 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. V.P.S. 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 I.P.C. 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 I.P.C. 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. P.C. before the Sessions Judge; and (2) the show cause notice was not sufficient com pliance with the provisions of section 479A	 Cr. P.C. 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.