# GOVINDA KADTUJI KADAM & ORS v. THE STATE OF MAHARASHTRA

- **Citation:** [1970] 3 S.C.R. 525
- **Court:** Supreme Court of India
- **Decided:** 1970-02-09
- **Case number:** Criminal Appeal No. 188 of 1969
- **Bench:** A. N. Ray, I. D. Dua
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/govinda-kadtuji-kadam-ors-v-the-state-of-maharashtra-5061
- **Pages:** 5

## Headnote

525
Cade of Criminal
Procedure, (5 of
1898) & 411-Hig CourtAppeal-Su1111nary distnissal-Duty to indicate views on points raised.
The four appellants along with K, were jointly tried and convicted for
offences under s. 147 !PC. They all jointly appealed to the High Coun
by one memorandum of appeal. The High Court admitted the appeal on
behalf of K, and dismis'°d in limine the appeal on beba]'[ of the appellants.
In appeal to this Court. the appellants challenged the order dismissing
in lbnine the appeal on their behalf, when the appeal of K, co-accused,
was admitted for hearing on merits after notice to the State.
HELD : When an appeal in the High Court raises a serious and substantial point which is prinza jacie arguable it is improper for that court to
dismiss it summarily without giving some indication of its view on the
points raised. The interest <if justice and fairplay require the High Cour~
in such cases to give an indication of its views on the points argued so
that this Court, in the event of an appeal from that order being presented
here, has the benefit uf the High Court's opinion on those points. [527 F]
This \Vas an en1inently fit case in which, while admitting K's appeal,
the appeal on behalf of the appellants was also admitted so that the appeals
of all the five accused could be considered together.
If K's defence was
upheld, then the case against the appellant.; \\'ould also
require
serious
consideration.
The evidence on the record would have to be scrutinised
at least 'for determining how far the case of the appellants is distinguishable from that of K. The charge of rioting under s. 147 !PC could only be
sustained if an unlawful assembly was held to have been formed. It was,
therefore, more appropriate to consider the case of all the accused topther
on appeal.
On this ground also the order of the High Court is open to
objection. [528 G]
M11slttak Hussein v. The State of Bombay, [1953] S.C.R. 809; Shreekan•
tiah Ramayya Mt111ipalli v. The Stale of Bombay, [1955] 2 S.C.R. 1177;
Chittaranjan Das v. Sl<lte of West Bengal, [1964] 3 S.C.R. 237; Ncra,van
Swami v. State of Maharashtra,
AIR 1968 SC 609; Jeewan v. State of
Rajasthan, Crl. A. No. 274 of 1968 decided on 18-12-1968; Sakha Ram
v. State of Maharashtra, Crl. A. No. 258 of 1968 decided on 22-4-69, referred to.

## Text

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GOVINDA KADTUJI KADAM & ORS.
v.
THE STATE OF MAHARASHTRA
February 9, 1970
[A. N. RAY AND I. D. DUA, JJ.]
525
Cade of Criminal
Procedure, (5 of
1898) & 411-Hig CourtAppeal-Su1111nary distnissal-Duty to indicate views on points raised.
The four appellants along with K, were jointly tried and convicted for
offences under s. 147 !PC. They all jointly appealed to the High Coun
by one memorandum of appeal. The High Court admitted the appeal on
behalf of K, and dismis'°d in limine the appeal on beba]'[ of the appellants.
In appeal to this Court. the appellants challenged the order dismissing
in lbnine the appeal on their behalf, when the appeal of K, co-accused,
was admitted for hearing on merits after notice to the State.
HELD : When an appeal in the High Court raises a serious and substantial point which is prinza jacie arguable it is improper for that court to
dismiss it summarily without giving some indication of its view on the
points raised. The interest <if justice and fairplay require the High Cour~
in such cases to give an indication of its views on the points argued so
that this Court, in the event of an appeal from that order being presented
here, has the benefit uf the High Court's opinion on those points. [527 F]
This \Vas an en1inently fit case in which, while admitting K's appeal,
the appeal on behalf of the appellants was also admitted so that the appeals
of all the five accused could be considered together.
If K's defence was
upheld, then the case against the appellant.; \\'ould also
require
serious
consideration.
The evidence on the record would have to be scrutinised
at least 'for determining how far the case of the appellants is distinguishable from that of K. The charge of rioting under s. 147 !PC could only be
sustained if an unlawful assembly was held to have been formed. It was,
therefore, more appropriate to consider the case of all the accused topther
on appeal.
On this ground also the order of the High Court is open to
objection. [528 G]
M11slttak Hussein v. The State of Bombay, [1953] S.C.R. 809; Shreekan•
tiah Ramayya Mt111ipalli v. The Stale of Bombay, [1955] 2 S.C.R. 1177;
Chittaranjan Das v. Sl<lte of West Bengal, [1964] 3 S.C.R. 237; Ncra,van
Swami v. State of Maharashtra,
AIR 1968 SC 609; Jeewan v. State of
Rajasthan, Crl. A. No. 274 of 1968 decided on 18-12-1968; Sakha Ram
v. State of Maharashtra, Crl. A. No. 258 of 1968 decided on 22-4-69, referred to.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
188 of 1969.
Appeal by special leave from the order dated June 9, 1969 of
the Bombay High Court, Nagpur Bench in Criminal Appeal No.
109 of 1969.
w. S. Barlingay, N. K. Kherdekar and A. G. Ratnaparklti, for
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the appellants.
G. L. Sanghi, Badri Das Sharma and S. P. Nayar, for the
respondent.
526
SUPREME COURT REPORTS
(1970) 3 S.C.R.
The Judgment of the Court was delivered by
Dua, J.
The four appellants, along with Kondu son of Ambu,
were jointly tried in the court of Additional Sessions Judge, Akola
on the following charges :
"That you all accused nos. 1 to 5 on or about 12th
day of November, 1967 at about 5-45 a.m. near Farshi
on Risod Nazampur Road, formed an unlawful assembbly and in prosecution of the common object of such
assembly viz. : to commit murder c.f complainant
Vithalrao Khanderao Deshmukh or in order to cause
murder of Vithalrao or grievous hurts to him committed
the offence of rioting and thereby committed an offence
punishable under Section 14 7 of the Lndian Penal Code
and within the cognizance of this Court.
That you all on the same date, time and place, were
members of unlawful assembly, in prosecution of common object of which viz. : to commit murder of Vithalrao
or to cause grievous hurt to him, one or all you caused
grievous hurts to him which offence you knew to be
likely to be committed in prosecution of the common
object of the said assembly you are thereby under
section 149 cf the Indian Penal Code guilty of causing
. of the said offence punishable under Section 307 of the
Indian Penal Code and within the cognizance of this
Court.
That you all on the same date, time and place
attempted to cause murder of Vithalrao Deshmukh, in
furtherance of common intention and thereby committed
an offence punishable under Section 307
read
with
Section 34. of the Indian Penal Code and within the
cognizance of this Court."
The order of the trial court convicting them all concludes thus :
"All the five accused are convicted for the offence of
rioting punishable under Section 14 7, Indian Penal Code
and each is sentenced to rigorous imprisonment for the
period of six months and to a fine of Rs. 50/-, in default,.
rigorous imprisonment for two weeks for that offence.
. . . . . . . . Substantive sentences shall run concurrently. The accused shall surrender to their bail."
They all jointly appealed to the- High Court of Bombay by one
memroandum of appeal.
Chandurkar, J., admitted the appeal
only on behalf of Kondu and dismissed in /imine the appeal on
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G. K. KADAM v. MAHARASHTRA (Dua,/.)
527
behalf of the four appellants before us.
The only point which
concerns this Court in the present appeal by special leave relates
to the correctness of the order dismissing in limine the appeal on
behalf of the four appellants, when the appeal on behalf of Kondu,
co-accused was admitted for hearing on the merits after notice to
the State.
We may at the outset point out that though on appeal under
s. 410, Cr.P.C. by a person convicted at a trial held by a Sessions
Judge or an Additional Sessions Judge the appellant is entitled
under s. 418 of the Code to chaJ]enge the conclusions both on facts
and of Jaw and to ask for a reappraisal of the evidence, the appellate court has nevertheless full power under s. 421, Cr.P.C. to
dismiss the appeal in limine even without sending for the records,
if on perusal of the impugned order and the petition of appeal it
is satisfied with the correctness of the order appealed against. This
power. it may be emphasised, has to be exercised after perusing
the petition of appeal and the copy of the order appealed against
and after affording to the appellant or his pleader a reasonable
opportunity of being heard in support of the appeal.
The summary
decision is accordingly a judicial decision which vitally affects the
convicted appellant and in a fit case it is also open to challenge
on appeal in this Court.
An order summarily dismissing an appeal
by the word "rejected", as is the case before us, though not violative of any statutory provision removes nearly every opportunity
for detection of errors in the order.
Such an order does not speak
and is inscrutable giving no indication of the reasoning underlying
it.
It may at times embarrass this Court when the order appealed
against prima facie gives rise to arguable points which this Court
is required to consider without having the benefit of the views of
the High Court on those points. In our opinion, therefore, when
an appeal in the High Court raises a serious and substantial point
which is prima facie arguable it is improper. for that Court to
dismiss it summarily without giving some indication of its view on
the points raised. The interest of justice and fairplay require the
High Court in such cases to give an indication of its views on. the
points argued so that this Court, in the event of an appeal from
that order being presented here, has the benefit of the High Court's
opinion on those points.
The question of summary dismissal of criminal appeals has
come up for consideration before this Court on several occasions
and broad principles have been stated more than once. In Mushtak
Hussein v. The State of Bombay('), Mahajan, J., (as he then was)
speaking for the Court said at p. 820 :
"With great respect we are, however, constrained to
observe that it was not right for the High Court to have
(I) [1953] S.C.R., 809.
'528
SUPREME COURT REPORTS·
[1970] 3 S.C.R.
dismissed the appeal preferred by the appellant to that
court summarily, as it certainly raised some arguable
points which required consideration though we have not
thought it fit to deal with all o~ them.
In cases which
prima facie raise no arguable issue that course is, of
course, justified, but this caurt would appreciate it if in
arguable cases the summary rejection order gives some
indication of the views of the High Court on the points
raised.
Without the opinion of the High Court on such
points in special leave petitions under Art. 136 of the
Constitution this Court sometimes feels embarrassed if it
has to deal with those matters without the benefit of that
opinion."
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Jn Shreekantiah Ramay,va Munipalli v. The State of Bombay(')
:and in Chittaranjan Das v. State of West Benga/( 2 ) this Court
·approved the remari\:s made in Mushtak Hussein's case('). Again,
in Narayan Swami v. State of Maharashtra(') this Court, after
referring to the earlier three decisions of this Court, emphasised
that the High Court ~hould not summarily reject criminal appeals
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if they raise arguable and substantial points. Still more recently
in Jeewan v. State of Rajasthan(') this Court disapproved summary
rejection o,f the appeal by the High Court and in Sakha Ram v.
State of Maharashtra{°) this Court reiterated the view that it is
desirable for the High Courts when dismissing the appeals in /imine
to deal with each point urged before them for holding that i~ is not
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mecessary to send for the records and to give notice to the State
for finally hearing and disposing of the appeal.
In the present case the defence of Kondu accused is that
Vithalrao, the injured person, has ·sustained the injury by falling on
a stone while chasing him (Kondu) and his other companions. If
that deieni:e is upheld then the case against the four appellants in
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this Court would, in our opinion, also require serious consideration.
The evidence on the record would have to be scrutinised at least for
determining how far the case of the present appellants is distinguishable from that of Kondu, accused.
It was, therefore, an eminently
fit case in which, while admitting Kondu's appeal, the appeal on
behalf of the present appellants was also admitted so that the
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appeals of all the five accused could be considered together. It
may be recalled that the charge of rioting under s. 147, I.P.C.
could only be sustained if am unlawful assembly is held to have been
formed.
It was, therefore, more appropriate to consider the case
of all the accused together on appeal.
On this ground also the
(I) [1955) 2 S.C.R. 1177.
(3) [1953] S.C.R. 809.
(5) Cr. A. No. 274of1968 decided on 18.12.68.
(6) Cr. A. No. 258 of 1968 decided on 22.4.69.
(2) [1964) 3 S. C. R. 237.
(4) A. I. R. 1968 S.C. (i()9.
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G. K. KADAM v. MAHARASHTRA (Dua, J.)
529
order of the High Court is open to objection. Even the counsel
for the State before us after making a faint attempt to justify the
impugned order had, it may be said in -fairness to him, to concede
that the order of dismissal in limine of the appeal on behalf of the
four appellants is, in the circumstances, insupportable.
The appeal is allowed and the order dismissing in limine the
appeal of the four appellants before us is set aside and the case
is sent back to the High Court for hearing their appeal with the
record after giving notice to the State, along with the appeal of
Kondo, accused.
We would perhaps have persuaded 'ourselves to
go into the me~ of the case as this Court has sometimes done_
but since Kondu's appeal is pending in the High Court it seems
to us to be more appropriate and just that the entire appeal is heard
by that Court on the merits.
As the sentences imposed are short
the High Court, we have no doubt, would try to dispose of the
appeal as speedily as possible.
It may be observed that the counsel for the apr.eHants in this Court made an oral prayer for their
release on bad.
But as the case is being remitted to the High
Court lor considering the appeal of all the five accused persons on
merits it would be ope,n to the appellants-if so advised-to apply
to the High Court for bail which prayer would be considered
according to law.
Y.P.
Appeal allowed
L8Sup.Cl/70-4