Narayan Swami vs The State of Maharashtra

C.A. Vaidialingam, J.—The Appellant, who was the second accused, in Sessions Case No. 9 of 1967, accused No. 1, were found guilty, u/s 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 Cr. Appeal No. 74 of 1967. A Division Bench of the High Court has, by its order dt. 27-4-1967, 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 7-9-1967, 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 chargesheeted and tried in Sessions Case No. 9 of 1967. In connection with a dacoity, which is alleged to have taken place, on 18-7-1965, 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 Exs. 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 10-6-1966, 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 11-6-1966 and he has stated that the witness, who has spoken to the recovery memos, as 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 claimed 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 14-6-1966. The Sessions Judge, Sri waikar, caused the present first accused, to be 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 Dilawar and that he had come to the Court, on 10-6-1966 and given evidence, as Abdul Gani, on the compulsion and threat of the present Appellant.

On the same day, i.e., 14-6-1966, Mr. Waikar issued a notice to the Appellant, to show cause why a complaint 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 16-6-1966. The Appellant appeared and pleaded, on 16-6-1966, that he had not committed any offence and that he bonafide 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 17-6-1966 and he was also cross-examined, by the accused, in the dacoity case.

On 22-6-1966, the learned Sessions judge, Nagpur, acquitted 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 evidente with the intent to procure conviction of the accused, in the dacoity case and that it was highly expedient, in the interests 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 8-7-1966, in the Court of the Joint Magistrate, First Glass, IV Court, Nagpur.

The Joint Magistrate, by his order dated 27-1-1967, held that a prima facie case, against both the accused, Under Sections 195 and 196 read with Section 34, IPC, has been made and accordingly, after framing charges, he committed them to the Sessions Court, to face trial. The learned Sessions Judge, Nagpur, by his judgment, dated 31-3-1967, has found each of the accused, guilty u/s 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, 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. Balingay raised two contentions : (1) that the learned Sessions Judge, in convicting : the Appellant, has relied, mainly, on the evidence given by Dilawar, on 14-6-1966, in Sessions Trial No. 8 of 1966 and on the statements, made by Dilawar, as first accused, when he was examined, u/s 342, Code of Criminal Procedure, in the present Sessions Trial; and (ii) that the provisions of Section 479-A, Code of Criminal Procedure, have not been complied with, when Mr. Waikar filed the complaint, as against the Appellant, on 8-7-1966.

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-complaince with the provisions of Section 479A, Code of Criminal Procedure 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 has also been taken into account by the learned Sessions Judge, for convicting the Appellant, when 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, u/s 410, Code of Criminal Procedure. The Appellant was also entitled, u/s 418, Code of Criminal Procedure, 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, u/s 421, Code of Criminal Procedure, the appellate Court may dismiss an appeal summarily, if on a perusal of the petition of appeal and a copy of the judgment 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, . 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 case, a summary rejection order must give some indication of the views of the High Court on the points raised. Again, in a case, where the High Court summarily dismissed an appeal, in one word ''dismissed'', this Court, in Shreekantiah Ramayya Munipalli Vs. The State of Bombay, 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, 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 questions 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 u/s 342, Code of Criminal Procedure. The evidence given by Dilawar, in the dacoity case, counsel points out, is inadmissible in these proceedings. The answers, given by him, as co-accused, when examined u/s 342, Code of Criminal Procedure, 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, 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, summarily, counsel points out, the High Court has omitted to consider the serious illegalities 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 co-accused against the Appellant, in our opinion, is well founded. In paragraph 5 of its judgment, the Sessions Court has referred to the fact 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 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 14-6-1966, 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 u/s 342, Code of Criminal Procedure, 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-examine Dilawar, in the said case and the statement of Dilawar, as co-accused, made u/s 342, Code of Criminal Procedure, 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 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 22-6-1966 and before the complaint was filed, by Mr. Waikar, on 8-7-1966, against the Appellant, the Appellant was not given an opportunity of being heard, as required u/s 479-A, Code of Criminal Procedure. This contention has been raised, even before the Committing Magistrate, as a perusal of the order of the Magistrate, will show. This objection, was again taken before the learned Sessions Judge. The learned Sessions Judge has taken the view that the show cause notice, issued by Mr. Waikar, to the Appellant, on 14-6-1966, is a sufficient compliance with the provisions of that section. The learned Sessions Judge is also, of the view that, u/s 479-A, Code of Criminal Procedure, 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, u/s 479-A, is again not only in our opinion, an arguable point, but also 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 27-4-1967, dismissing Cr. A. 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.