1979 JTR(SC) 518
1980 AIR(SC) 1707 ; 1980 CriLR 100 ; 1980 CrLJ 1246 ; 1980 GLR 411 ; 1981 MLJ(Cri) 77 ; 1980 1 SCC 677 ; 1980 SCC(Cri) 317 ; 1980 2 SCR 353 ; 1980 KHC 602
SUPREME COURT OF INDIA
S. MURTAZA FAZAL ALI, P.S. KAILASAM AND A.D. KOSHAL, JJ.
Rajpur Ruda Meha and others, Appellants
Versus
State of Gujarat, Respondent.
Criminal Appeal No. 718 of 1979
Decided on 5-12-1979.
Advocates appeared
M/s. A. K. Trivedi and S. S. Khanduja, Advocates, for Appellants.
* Criminal Appeal No. 110 of 1977, D/- 11-10-1979 (Guj.).
Act
Referred
:CONSTITUTION OF INDIA : Art.141
CRIMINAL PROCEDURE CODE : S.384
Constitution of India, 1950 - Article 134 (1) - Indian Penal Code,1860 - Section 302 / 120-B / 323 / 324 read with 34 and 109 - Criminal Procedure Code,1973 – Section 384 and 379 - SC (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 - SC Rules - Rule 15 - Order XXI – Offence of Murder - Criminal conspiracy – Voluntarily causing hurt – Charged – Appeal against conviction - Evidence of three eye-witnesses was an injured eye-witness having received several incised injuries - Evidence of Ruda was not accepted - Complainant, brother of deceased saw latter part of occurrence when deceased was being carried away accused - When questioned, accused attacked him and he was also injured - High Court in an elaborate judgment after thoroughly scrutinising the evidence of eye-witnesses accepted their testimony - It observed that evidence of eye-witnesses Rata Mala is most reliable and trustworthy and so also evidence - High Court has referred to circumstances under which order of acquittal could be interfered with in light of various decisions of this Court – Held, appellant insisted that an absolute right of appeal, as he described it, casts an inflexible obligation on the court to sent for record of the case, to hear both parties and to make a resoned judgment to scuttle appeal by a summary hearing on a preliminary posting, absent record, ex parte, and absolved from giving reasons is to be absolutist - Position absonant with mandate of Enlargement Act, and indeed, of Constitution in Art. 134 (1) - Counsels ipse dixit did not convince but Court have pondered over issue in depth, being disinclined summarily to dismiss - Application for adducing additional grounds or in order of Court directing matter to be placed before Constitution Bench, there was any reference to validity of S. 384 of Cr. P. C - Neither was it pleaded during arguments that S. 384 of Cr. P.C. is ultra vires of Constitution - As question of validity of S. 384 of Cr. P.C. was neither raised nor argued, a discussion by Court after "pondering over issue in depth would not be a precedent binding on Courts - Appeal dismissed.
Constitution of India, 1950 - Article 134 (1) - Indian Penal Code,1860 - Section 302 / 120-B / 323 / 324 read with 34 and 109 - Criminal Procedure Code,1973 – Section 384 and 379 - SC (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 - SC Rules - Rule 15 - Order XXI – Offence of Murder - Criminal conspiracy – Voluntarily causing hurt – Charged – Appeal against conviction - Evidence of three eye-witnesses was an injured eye-witness having received several incised injuries - Evidence of Ruda was not accepted - Complainant, brother of deceased saw latter part of occurrence when deceased was being carried away accused - When questioned, accused attacked him and he was also injured - High Court in an elaborate judgment after thoroughly scrutinising the evidence of eye-witnesses accepted their testimony - It observed that evidence of eye-witnesses Rata Mala is most reliable and trustworthy and so also evidence - High Court has referred to circumstances under which order of acquittal could be interfered with in light of various decisions of this Court – Held, appellant insisted that an absolute right of appeal, as he described it, casts an inflexible obligation on the court to sent for record of the case, to hear both parties and to make a resoned judgment to scuttle appeal by a summary hearing on a preliminary posting, absent record, ex parte, and absolved from giving reasons is to be absolutist - Position absonant with mandate of Enlargement Act, and indeed, of Constitution in Art. 134 (1) - Counsels ipse dixit did not convince but Court have pondered over issue in depth, being disinclined summarily to dismiss - Application for adducing additional grounds or in order of Court directing matter to be placed before Constitution Bench, there was any reference to validity of S. 384 of Cr. P. C - Neither was it pleaded during arguments that S. 384 of Cr. P.C. is ultra vires of Constitution - As question of validity of S. 384 of Cr. P.C. was neither raised nor argued, a discussion by Court after "pondering over issue in depth would not be a precedent binding on Courts - Appeal dismissed.
A.K.Trivedi, S.S.Khanduja
JUDGMENT
FAZAL ALI, J.:— This appeal is preferred by the three accused in Sessions Case No. 46 of 1976 against their conviction and sentence imposed upon them by the High Court under the SC (Enlargement of Criminal Appellate Jurisdiction) Act, 1970.
2. The three appellants were tried by the Sessions Judge for committing offences punishable under Ss. 302 / 120-B / 323 / 324 read with Ss. 34 and 109 of the I.P.C. for committing the murder of one Karsan Kala on 19-1-1976. The learned Sessions Judge acquitted all the three appellants of the charges levelled against them. The State of Gujarat filed an appeal against the order of Sessions Judge acquitting them, to the High Court of Gujarat. A Division Bench of the High Court in Criminal Appeal No. 110 / 77 allowed the appeal of the State and reversed the order of acquittal by the learned Sessions Judge and convicted them for offences under S. 302/120-B and sentenced them to imprisonment for life. They were also convicted for lesser offences and sentenced to varying terms of imprisonment.
3. The prosecution strongly relied on the evidence of three eye-witnesses Rata Mala, Ganesh and Ruda, Rata Mala was an injured eye-witness having received several incised injuries. The evidence of Ruda was not accepted. The complainant Savai Kala, the brother of the deceased saw the latter part of the occurrence when the deceased was being carried away the accused. When Savai Kala questioned, the accused attacked him and he was also injured. The High Court in an elaborate judgment after thoroughly scrutinising the evidence of the eye-witnesses accepted their testimony. It observed that the evidence of the eye-witnesses Rata Mala is most reliable and trustworthy and so also the evidence of Ganesh. The High Court has referred to the circumstances under which the order of acquittal could be interfered with in the light of the various decisions of this Court. The High Court taking into consideration the reasons given by the Sessions Judge for not accepting the testimony of the eye-witnesses found them to be totally unacceptable. We have been taken through the evidence of the material witnesses. We have no hesitation in agreeing with the conclusion arrived at by the High Court that the reasons given by the trial Court for acquitting the accused are totally unacceptable. After hearing the learned counsel and examining the petition of appeal and after going through the relevant parts of the judgment of the High Court and the Sessions Court, we find that there are no sufficient grounds of interference. The appeal is summarily dismissed under S. 384 of the Cr. P. C.
4. After we pronounced our judgment dismissing the appeal summarily under S. 384 of the Cr. P. C., but before signing the judgment, a decision of this Court -Sita Ram v. State of U.P. (1979) 3 SCR 1085 was brought to our notice wherein the scope of the power of the Courts to dismiss an appeal summarily under S. 384 of the Cr. P.C. has been referred. In that case an appeal was preferred to this Court under S. 379 of the Cr. P.C., 1973 read with S. 20 of the SC (Enlargement of Criminal Appellate Jurisdiction) Act, 1970. The appeal was listed for preliminary hearing under Rr. 15, 19 (1) (a) of O. XXI of the SC Rules, 1966. The appellants filed an application for adducing additional grounds, namely, (1) the provisions under cl. (C) of sub-rule (1) of R. 15 of O. XXI of the SC Rules empowering the Court to dismiss the appeal summarily, is ultra vires being inconsistent with the provisions of the SC (Enlargement of Criminal Appellate Jurisdiction) Act, 1970; (2) the power of the SC to frame rules under Art. 145 of the Constitution cannot be extended to annul the rights conferred under an Act of Parliament and (3) An appeal under the SC (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 cannot be dismissed summarily without calling for the records, ordering notice to the State and without giving reasons. When the petition for leave to adduce additional grounds came up before the Court, this Court ordered: -
"The appellants have challenged the constitutional validity of cl. (c) of the sub-rule (1) of R. 15 of O. XXI of the SC Rules, which enables an appeal of the kind with which we are concerned, to be placed for hearing ex parte before the Court for admission. In that view of the matter, we think that unless the question of the constitutional validity of the rule is decided, we cannot have a preliminary hearing of this appeal for admission. Let the records, therefore, be placed before the Honble the Chief Justice for giving such direction as he may deem fit and proper.
5. The matter was placed before a Bench of five Judges by the Honble the Chief Justice as the constitutional validity of cl. (c) of R. 15(1) of O. XXI of SC Rules, was challenged. Along with the question of constitutional validity, two other grounds referred to earlier were also raised. The contention of the learned counsel that a right of appeal cast an obligation on the Court to send, for records of the case, to hear both the parties and to make a reasoned judgment, was not accepted by the judgment of the Court. Reasons given by the Court are as follows: -
"Counsel for the appellant insisted that an absolute right of appeal, as he described it, casts an inflexible obligation on the court to sent for the record of the case, to hear both parties, and to make a resoned judgment. Therefore, to scuttle the appeal by a summary hearing on a preliminary posting, absent record, ex parte, and absolved from giving reasons is to be absolutist - a position absonant with the mandate of the Enlargement Act, and, indeed, of the Constitution in Art. 134 (1). Counsels ipse dixit did not convince us but we have pondered over the issue in depth, being disinclined summarily to dismiss."
Regarding the power of the Court to summarily dismiss the appeal under S. 384 of the Cr. P.C. the submission of the learned counsel was that the provisions of the Cr. P.C. are not applicable to the SC which contention was not accepted by the Court.
6. Neither in the application for adducing additional grounds or in the order of the Court directing the matter to be placed before the Constitution Bench, there was any reference to the validity of S. 384 of the Cr. P. C. Neither was it pleaded during the arguments that S. 384 of the Cr. P.C. is ultra vires of the Constitution. As the question of validity of S. 384 of the Cr. P.C. was neither raised nor argued, a discussion by the Court after "pondering over the issue in depth would not be a precedent binding on the Courts. The decision is an authority for the proposition that R. 15(1) (c) of O. XXI of the SC Rules should be read down as indicated in the decision.
7. We are satisfied for the reasons stated above that the decision is no authority regarding the scope of S. 384 of the Cr. P.C. The order of dismissal of the appeal summarily will stand.
Appeal dismissed.
For Citation : AIR 1980 SC 1707=(1980) I SCC 677=(1980) 2 SCR 353.