Siddanna Apparao Patil Vs. State of
Maharashtra  INSC 54 (6 March 1970)
06/03/1970 RAY, A.N. RAY, A.N.
CITATION: 1970 AIR 977 1970 SCR (3) 909 1970
SCC (1) 547
RF 1970 SC 979 (9) F 1971 SC 64 (2) R 1972 SC
505 (6) RF 1973 SC 243 (4) D 1974 SC1150 (4) F 1983 SC1014 (2) R 1986 SC1070
Code of Criminal Procedure (5 of 1898), s.
410-Appeal to High Court involving substantial and arguable questionsAppeal
dismissed in limine summarily-Propriety.
The appellant and another were charged 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 limine summarily-Propriety. I appeal to this Court by special leave,
HELD : The order of dismissal of the appeal
should be set aside and the matter remitted to the High Court for fresh
consideration. [912 D] 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. 1910 E; 912 Cl
Mushtak Hussain V. State of Bombay,  S.C.R. 809, Govinda Kadtuji Kadam
& Ors. v. Spate of Maharashtra,  3 S.C.R. 525 and Chittaranian Das v.
State of West Bengal  3 S.C.R 237, followed. 237. followed.
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 180 of 1967.
Appeal by special leave, 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. P. Nayar, for the
The Judgment of the Court was delivered by
Ray, J. This is an appeal by special leave against the judgment of the High
Court of Bombay dated 5 December, 1966 dismissing in limine the appeal
preferred against the judgment and order dated 16 August, 1966 passed by the
Sessions Judge, Sholapur. The High Court by an order dated 3 April, 1967 also
refused leave to appeal to this Court.
910 The appellant was accused, No. 1. 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 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 law.
It is only in cases where there is a trial by jury that the 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
there under. Reference may be made to one of the earlier decisions of this
Court in Mushtak Hussain v. The State of Bombay(1) and the recent decision in
Govinda Kadtuji Kadam & Ors. v. State of Maharashtra(1) 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; 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 Chittaranian Das v.
State of West Bengal(1) 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 Narayan Swami v. State of Maharashtra (4)
this Court stated 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 an appellant in
a dacoity (1)  S.C.R. 809.
(3)  3 S.C.R. 237.
(2)  3 S.C.R. 525.
(4)  2 S.C.R. 88.
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(1), 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 Vishwanath Shankar Beldar v. State of Maharashtra (2) 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
In another unreported earlier decision of
this Court in Bashir Husain Peshimani v. The State of Maharashtra (3 ) the
offences alleged were under the Indian Penal Code, the Sea Customs Act, 1887
and the Foreign Exchange Regulation Act, 1947 in respect of gold alleged to
have been 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 it 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 present case, one of the contentions
of the appellant in the appeal preferred was that the appellant was charged
under (1) Criminal Appeal No. 38 of 1969 decided on 17 September, 1969.
(2) Criminal Appeal No. 95 of 1969 decided on
18 September 1969.
(3) Criminal Appeal No. 262 of 1968 decided
on 20 December, 1968.
912 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
being acquitted the appellant could not be convicted with the aid of section
34. In aid of that contention reliance was placed on the decisions of this
Court in Prabhakar Navale v. State to Bombay(1) and Krishna G. Patil v. State
of Maharashtra (2). Another contention raised in the appeal was that it would
be an error to hold that there was initimacy 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 consideration on hearing the parties.
V.P.S. Appeal allowed.
(1) A.I.R. 1963 S.C. 51.
(2) A.I.R. 1963 S.C. 1413.