Rajput Ruda Maha and Ors. v. State of Gujarat

353 RAJPUT RUDA MAHA AND ORS. A _v._ STATE OF GUJARAT _December_ 5, 1979 [S. MURTAZA FAZAL ALI, P. S. KAILASAM AND A. D. KOSHAL, JJ.] B _Silpreme Court (Enlargement_ _of_ _Criminal_ _Appellate_ _Jurisdiction)_ Act, _1910-S.Z(a)-Scope-Supreme Court,_ _if_ _could summarily dismiss_ _an_ _appeal_ ### A ~ .under section 384 Cr. P.C. 'f he c:ppellants ·who were charged with the offence of committing inurder were acquitted by the Sessions Judge. But on appeal by the State, the High C Court convicted and sentenced them. In their apper:l under section 2(a) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, .1970, this court, after a detailed analysis of the High Court's judgment and the evi den~ led in the case summarily dismissed the appeal under section 384 of the Code of Criminal Procedure, 1973. After the pronouncement of the judgment but before it was signed, the attcn- D tion of the court was drawn to the judgment in _Sita Rain_ v. _State_ _of_ _U.P ._ .[1979] 2 S.C.R. 1085 which, according to them, held that the Supreme Court had no power to sun1n1arily dismiss an app::al under section 384, Cr. P.C. in an appeal under section 2(a) of the 1970 Act. Dismissing the appeal. / HELD : The decision in _Sita_ _Ram_ v. _State_ _of_ _U.P._ is no authority regarding the power of the court to summarily dismiss an apeal under section 384 of th~ Crimin<1l Procedure Codr. In that ca·5e neither in the application for :adducing additional grounds nor in the order of the Court directing the matter to be placed, before the constitution bench was there any reference to the validity of section '.';84 nor was it pleaded that the section was _ullra-vire5_ the Constitution. [356E] E Therefore the observaion of the Court that it has "pondered over the issue F in depth" would not be a precedent binding on the court. The decision is an .authority for the proposition that rule 15 ( l )( c) of Order XXI of the Supreme Court Rules should be read down as ind:cated in that decision. f356F] CRIMINAL APPELLATE .JURISDICTION: Criminal Appeal No. 718 of I 1979. G ' From the Judgment and Order dated 11-10-1979 of the Gujarat - _}'_ High Court in Criminal Appeal No. 110177. _A._ _K._ _Trivedi_ and S. S. _Khanduja_ for the Appellant. The Judgment of the Court was delivered by l'AZA!. Au, J. This appeal is preferred by the thrt.e accused in .S.essiN1s Case No. 46 of 1.976 against their conviction and sentence H 354 SUPREME COURT REPORTS [1980] 2 S.C.R. A imposed upon them by the High Court under the Supreme Court (Enlargement of Criminal Appelhte Jurisdicticn) Act, 1970. B ## c D E H The prosecution strongly relied on the evidence of three eyewitnesses Rata Mala, Ganesh and Ruda. Rata Mala was an injured eye-witness having receives 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 by the accused. When Savai Kala questioned, the accused attacked~ him and he was also injured. The High Court in an elaborate judgment after thorough'y scrutinising the evidence pf the eye- . witnesses accepted their testimony. It observed that the evidence of the eye-witnesses Raia 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 var:ous decisions of this Court. The High Co11ft taking into consideration the reasons given by the Sessions Judge f,or 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 exammmg the pe'ition 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 interferenoe. The appeal is summarily dismissed under S. 384 of the Code,of Criminal Procedure. Af:er we pronuunced our judgment dismissing the appeal summar!ly under S. 384 of the Code of Crim;nal Procedure, but before signin.g: The three appellants were tried by the Sessions Judge for commit· ting offences punishable. under s. 302/120-B/323 /324 read with s. 34 and 109 of the Indian Penal Code for committing the murder of one Karsan Kala on 19-1-1976. The !earned Sessions Judge acquitted. all the three appellants of the charges .levelled against them. The s·a~e of Gujarat filed an appeal against the order of Sessions Judge ')Cquitting them, to the High Court of Gujarat. A division Bench of the High Court in cr;minal Appeal No. 11()/77 allowed the appeal of ~·.J..,. the State and reversed the order of acquittal by the Learned Sessions. Judge and convicted them for offences under s. _302i_ 120-B and. sentenced them to imprisonment for life. They were also convicted for fesser offences and sentence;! '.O varying term~ Of imprisonment. '\ . ####, # • R. R. ~!AHA _v._ GUJARAT _(Fazal Ali,_ _J.)_ **355** the judgment, a decision oi this _Court-Sita' Ram_ & _Ors._ v. _State_ _of_ V.P.(') was brouQht to our notice wherein the scope o( the pcwer of the Courts to dismiss an appeal summarily under S. 384 of the Code of Criminal Procedure has been referred. In that case an appeal was preferred to this Court under S. 379 of the Code of Criminal Procedure, 1973 read with s. 2(a) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970. The appeal was listed for preliminary hearing under R uk 15 (1) ( c) of O.XXI of the Supreme Court Rules, 1966. The appellants filed an _application for adducing additi,onal grounds, namely, ( 1) the provisions under cl. ( c) of sub-rule (1) of Rule 15 of Order XXI of the Supreme Court Rules empowering the Court to dismiss the appeal summarily is _ultra vires_ being inconsistent with the provisions of the Supreme Court (Enlargement,of Criminal Appellate Jurisdiction) Act, 1970; (2) the power of the Supreme Court to frame rules under Art. 145 of the Constitution cannot be extended to annul the rights ctmferred under an Act of Parliament and (3) an appeal under the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act: 1970 cannot be dismissed summarily with.out calling for the records ordering ootice 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 cpnstitutional validity of cl. ( c) of sub-rule (1) of rule 15 of O.XXI of the Supreme Court 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 consti·· tutional \'alidity of the rule is decided, we cannot have a preliminary hearing of this appeal for admission. Let the records, therefore, be placed before the Hon'ble the Chief Justice for 1 giving such direction as he may deem fit and **pr0per."** The matter was placed before a Bench of five Judges by the . /' Ho'n'blc the Chief Justice as the constitutional validity of cl. ( c) of rule J 5 (1) of O.XXI of Supreme Court Rules, was challenged. Alongwith 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 I ••·-·--- (1) !1979] 2 S.C.R. 1085. **B** ## c E F G **H** 356 SUPREME COURT REPORTS (1980] 2 S.C.R. A 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 appellan: insisted that an absolute right of appeal as he desoribed it, casts an inflexible obligaB tion on the court ~o send for the rec,ord of the case, to hear both parties, and to make a reasoned Judgment. Therefore, to scuttle the appeal by a summary hearing on a preliminary posting absent record, _ex parte_ and absolved froni giving reasons is to be absolutist-a posit:on absonent with the ~ ··~ mandate of the Enlargement Act and, indeed, of the C Constitution in Article 134(1). Counsel's _ipsi dixit_ dill not convince us but we have pondered over the issue in depth, being disinclined summarily to dismiss." Regarding the ppwer of the Court to summarily dismiss the appeal under S. 384 of the C,0de of Criminal Procedure, the submission of D the Learned Counsel was that the provisions of the Cede of Criminal Procedure are not applicable to the Supreme Court which contention was not accep'.ed by the Court. _E_ F G Neither in the. application f,or adducing additional grounds or in the 0-rder of the Court directing the matter t0 be placed before the Constitution Bench, there .was any reference to the validity of S. 384 of the Code of Criminal Procedure. Neither was it pleaded during the arguments that S. J84 of the Code _pf_ Criminal Procedure is _ultra vires_ of the Constitution. As the question of validity of S. 384 the Code of Cthriminal Procedure wads ~either raished .nor a:guded, h~ .. ·~ discussion by e Court a !er 1 "pan enng p'ver t e issue m ept would not be a precedent binding on the Courts. The decision is an authority for the prog'.Ysition that Rule 15 ( 1) ( c) of O.XXI of the Supreme Court Rules should be read down as indicated in the decision. We are satisfied for the reasons stated above that the decision is no authority regarding the scope of S. 384 of the Code of Criminal Procedure. The order of dismissal of the appeal summarily will stand. P.B.R. _Appeal dismissed._