# • lllARAYAN SWAMI v. STATE 01' MAHARASHTRA

- **Citation:** [1968] 2 S.C.R. 88
- **Court:** Supreme Court of India
- **Decided:** 1967-10-26
- **Case number:** Criminal Appeal No. 165 of 1967
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/lllarayan-swami-v-state-01-maharashtra-4257
- **Pages:** 7

## Headnote

• lllARAYAN SWAMI
v.
STATE 01' MAHARASHTRA
October 26, 1967
JV. IlHARGAVA ASD C. A. VAIDIALI~GAM, JJ.)
P:-actict..-fligli l:oto:1-·Cri111i.11al appeal r<1ising substantial and in11purtant
q11t'.'ilic>1L~-S111111n.:iry diJn1is.\a/ hy Jligh C.:011rr--lf justified.
A
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During the trial for an offence of dacoity one of the \\'itne~s 1!avc
false cviUcncc. anJ stated, on further examination, that he did so at- the
instance ot the Sub-inspctor .... -ho investigated the CiCJC.
The Cou11 gave
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notiet: to the Sub-inspector to show cause v.·hy a complaint should not
be laid again'! him for otlcnce; under ss. 195, I 96 and 205 J.P.C. and
he appcareJ und showed cause.
After the trial, <1nd at the time of
.delivering judgment in the dacoity 'case the Court found that the \\'itness
had intentionally J?,iven false evidence and that the Sub-inspector had
intcntioni.illy fahricated false evidence. and thereafter tiled a complaint
against them before the Joint
~fagislratc. They were committed to the
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Sessions Courr to take their 1rial !or offences under ss. 195. 196 and
.14 LP.C. a< fim and 'econd accused respectively.
The" Sessions Judge
found them guilty.
The Sub-inspector (secood accused) appealed to
the High Coun and contended that : (I ) the Sessions Judge had com·
milled a gross illegalily in relying as against the second accused, upon
the evidence Of the first accused as a v..·itness in the earlier dacoity case,
and the statement of the fi"t accused under s. 342 Cr. P.C. before the
Sessions Judge: und (2) the show cause notice was not sufficient comE
pliance with the provisions of s. 479A, Cr. P.C. as the notice should
have been given ufler the judgment in the dacoily case. The High Coun
dismissed the appeal summarily in one v..·ord "dismissed', without
discussing the questions of law an<l without considering v..·hethcr there \\·as
guflkient other evidence to convict the appelJ.ant.
Jn appeol by the Sub-inspector to 1his Court.
HELD : The oppcal before the High Court, was an arguable one,
and it also raised substantial and important questions for consideration
by 1he High Court. The High Coun was therefore not justified
in dis·
mi5'in& the appeal summarily. {94C]
Mu.1/1tak Hu.uei" v. State of Homhay. ( 1953) S.C.R.
809
Sliree!an·
ti11h Ramayyt• M1111ipalli v. State of Ho111hav. (1955( I S.C.R. 1177 and
Chittaranjan Dm v. Swe of West Be11f1a/, 11964) J S.C.R. 237, followed.

## Text

• lllARAYAN SWAMI
v.
STATE 01' MAHARASHTRA
October 26, 1967
JV. IlHARGAVA ASD C. A. VAIDIALI~GAM, JJ.)
P:-actict..-fligli l:oto:1-·Cri111i.11al appeal r<1ising substantial and in11purtant
q11t'.'ilic>1L~-S111111n.:iry diJn1is.\a/ hy Jligh C.:011rr--lf justified.
A
B
During the trial for an offence of dacoity one of the \\'itne~s 1!avc
false cviUcncc. anJ stated, on further examination, that he did so at- the
instance ot the Sub-inspctor .... -ho investigated the CiCJC.
The Cou11 gave
C
notiet: to the Sub-inspector to show cause v.·hy a complaint should not
be laid again'! him for otlcnce; under ss. 195, I 96 and 205 J.P.C. and
he appcareJ und showed cause.
After the trial, <1nd at the time of
.delivering judgment in the dacoity 'case the Court found that the \\'itness
had intentionally J?,iven false evidence and that the Sub-inspector had
intcntioni.illy fahricated false evidence. and thereafter tiled a complaint
against them before the Joint
~fagislratc. They were committed to the
D
Sessions Courr to take their 1rial !or offences under ss. 195. 196 and
.14 LP.C. a< fim and 'econd accused respectively.
The" Sessions Judge
found them guilty.
The Sub-inspector (secood accused) appealed to
the High Coun and contended that : (I ) the Sessions Judge had com·
milled a gross illegalily in relying as against the second accused, upon
the evidence Of the first accused as a v..·itness in the earlier dacoity case,
and the statement of the fi"t accused under s. 342 Cr. P.C. before the
Sessions Judge: und (2) the show cause notice was not sufficient comE
pliance with the provisions of s. 479A, Cr. P.C. as the notice should
have been given ufler the judgment in the dacoily case. The High Coun
dismissed the appeal summarily in one v..·ord "dismissed', without
discussing the questions of law an<l without considering v..·hethcr there \\·as
guflkient other evidence to convict the appelJ.ant.
Jn appeol by the Sub-inspector to 1his Court.
HELD : The oppcal before the High Court, was an arguable one,
and it also raised substantial and important questions for consideration
by 1he High Court. The High Coun was therefore not justified
in dis·
mi5'in& the appeal summarily. {94C]
Mu.1/1tak Hu.uei" v. State of Homhay. ( 1953) S.C.R.
809
Sliree!an·
ti11h Ramayyt• M1111ipalli v. State of Ho111hav. (1955( I S.C.R. 1177 and
Chittaranjan Dm v. Swe of West Be11f1a/, 11964) J S.C.R. 237, followed.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
165 of 1967.
Appeal by spec:al leave from the order dated April 27, 1967
of the Bombay High Courl, ·Nagpur Bench in Criminal Appeal No.
74 of 1967.
W. S. Barli11g11y and A. G. Rm11aparkhi, for the appellant
. H. R. Khamw and S. /'.Nayar, for the respondent.
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NARAYAN SWAMI v. MAHARASHTRA (Vaidialingam, 1.)
89
The Judgment of the Court was delivered. by
Vaidialingam, J.
The
appellant,
who was the. second
accused, in Sessions·Case No. 9 of 1967, and accused No. 1, were
found guilty, under s. 195 and s: 196 read with s. 34, I.P.C. 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 chalknged hls conviction and sentence, passed
against him, before the High Court of Bombay, in Criminal
Appeal No. 74 of 1967. A Division Bench of the High Court
has, by its order dated April 27, 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
September 7, 1967, has granted special leav.e, 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
circumstanc~'S under
which the appellant, who was a police Sub-Inspector, along with ·
one Dilawar, who was accused No. 1, came to be charged-sheeted
and tried, in Sessions Case No. 9 of 1967. In connection with a
dacoity, which is alleged to have taken place, on July 18, 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,
Na~pur, in Sessions Case No. 8 of 1966.
~n that trial, the prosecution had to prove certain recoveries made, on the basis of three
memos, which have b.een marked, in the present Sessions Trial, as
Exhibits 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 June 10, 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
June 11, 1966, and he has stated that the witness, who has spoken
to the recovery memos, was 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 clairn 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 June 14, 1966. The
Sessions Judge, Sri Waikar, caused the present first accused, to be
LI Sup.Cl/68-7
90
SUPREME COURT REPORTS
[1968] 2 S.C.R.
brought before him and further examined him,. in Sessions Case
No. 8 of 1966. The witness appears to have stated that he wao;
not Abdul Gani, but really Dilawar, and that he had come to
the Cou;t, on June 10, 1966, and given evidence, as Abdul Gani,
on the compulsion and threat of the present appellant.
On the same day, i.e., June 14, 1966, Mr. Waikar issued a
notice to the appellant, to show cau""e why a complain'. should
not be laid against h'm, for offences under ss. 195, 196, and '.!GS,
- 1.P.C.
By the said notice, the appellant was directed to appear
before the Court, on June 16, 1966.
The appellant appeared
and p!eaded, on June 16. 1966, that he had not committed any
offence and that he bona fide be"ieved that the presc1t. l st accuseJ
was Abdul Gani, and that he had never compelled one D Jawar
to appear before the Court and give evidence, as
Abdul Gani~
Th.e appellant was furtJ1cr examined, in the dacoity case, on Jun"
17, 1966, and he was also cross-examined, by '.he accused, in the
dacoity case.
On June 22, 1966. the learned Sessions Judge, Nagpur, ac·
quitted all the accused. in the dacoity case. In tile said judgment,
the learned Ses.s1ons Judge has sta'.~d that the present
accused
No. I, inten'ionally gave falrn evidence, and the appellant intentionally fabricated false evidence w th •he intent to procure convict.on of the accused. in the dacoi:y case, and that it was highly
expedient, in the interest of justice and in the interest of eradication of the evil of perjury and the fal:Jrication of false ev'dence,
that both of them should be prosecuted. Thereupon, the learned
Sessions Judge tiled the complaint, against the appellant
and
Dilawar, on July 8, 1966, in •he Court of the Joint Magistrate,
First Class, IV Court, Nagpur.
The Joint Magistrate, by his order dated January 27, 1967,
held that a prima facie case, aga'nst bo'h the accused, under ss.
195 and 196 read with s. 34, 1.P.C., has been made out; and,
accordingly, after framing charges. he committed them •o
the
Sessions Court, to face trial.
The learned Sessions Judge, Nagpur. by his judgment, dated Ma•ch 31, 1967, has found each
of the accused, guilty under s. 195 and s. 196 read with s. 34,
l.P.C., _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
elabora•cly. We will onlv advert to some of the material circumstances, that have been placed, before us, by the learned counsel,
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NARAYAN SWAMI v. MAHARASHTRA (Vaidlalingam, J.)
91
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. Barlingay,
raised two contentions: (i) that the learned Sessions Judge, in
convicting the appellant, has relied, ·mainly, on the evidence,.
given by Dilawar, on June 14, 1966, in Sess:ons Trial No. 8 of
1966, and on the statements, ii.lade by Dilawar, as first accused,
when he was examin.ed, ·under s. 342, Cr.P.C., in the
present
Sessions Trial; and (ii) that the provisions of·s. 479A, Cr.P.C.,
have not been complied with, when Mr. Waikar filed the complaint, as against the appellant, on July 8, 1966.
Mr. H. R. Khanna, learned counsel, appearing for the State
of Maharashtra, on the o'.her hand, submitted that the learned
Sessions Judge has considered the question of non-compliance
with the provisions of s. 479A, Cr.P.C., and he has rejected the
appellant's contention, in that regard.
Counsel also pain• ed out
that, apart from the evidence of D'.lawar, 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 have also
been taken into accou11t, by the learned Sessions Judge, for convicting the appellant. When the H;gh Court dismissed the appeal,
though summarily; it must be presumed that the High Court has
agreed with the views, expressed by the learned Sessions J uctge,
in the present judgment.
Therefore, we und.erstood counsel to
urge that the H'gh Court was perfectly justified, in d;smissing 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, under s. 410, Cr.P.C. The appellant was also
entitled, under s. 418 Cr.P.C., to agita•.e, in his appeal, before
the High Court, findings of fact, recorded against him, · as also
questions of law, available to him.
No d·oubt,
under s.
421
Cr.P.C., 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 v. 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 appe,al, may
be justified, but, in arguable cases, a summary_ rejectior. order
must give some indication of the views of the Htgh 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 Mtinipa!U iv. The State of Bon1bay(')
(I}
(1953] S. C.R. 8 .. 9.
(2) [ 1955] I S. C.R. 1177.
92
SUPREME COURT REPORTS
[1968] 2 S.C.R.
again reitera~ed the views expressed in the earlier decision, referr.ed. t~ above, and stated that ~ummary rejection of appeals, which
raise i~sues of substance and importance, was not justified. After
ad~ertmg. to the two decisions, noted above, this Court, again in
Ch1t1aran1an Dal' v. State of West Bengal('), laid down that ther~
can be no doubt, whatever, that in dealing wi'h criminal appeals,
brought before them, the High Courts
should
not sununarilv
~eject them, .if they raise. arguable and substantial points.
Bca(-
mg these prmc1ples m view, the question naturally arises as to
whether the appeal filed, by the appellant, before the High Court
.:>f Bomb·.y, raised any arguable point, or whether the questions
raised wer.~ substantial and important.
In support of the first contention, Dr. Barlingay drew
our
attention to !he discussion, contained in the
judgment of
the
learned Sessit'ns 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-accus\:(l, when he waS examined, under s. 342 Cr.P.C. The
evidence given by Di!awar, in the dacoity ca,e, counsel points
out, is inadmissible, in these proceedings.
The· answers given by
him, as co-accused, when examined, under s. 342 Ct.P.C., cannot be taken into account, as against the appellant, whatever the
position may be, so far a' Dilawar himself, is concern.~. There
is no other evidence, counsel points out, on record, which
has
been taken into account, by the learned Sessions Judge. In any
event, counsel urged, after eliminating the 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 r.xord, 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 iUegality, contained in the judgment of the Scs·
sions Judge, in 1elying upon the evidence
and statement of
Dilawar.
The contention of .the J.zarned 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 Session's Court has referred u the fact that
Dilawar, accused No. I, admits all the facts alleged. by the prosecution, and that he has explained that he gave evidence as
Abdul Gani at the instance of the appellant. Iri considering,
agein, the question as to whether the appellant knew accused No.
l as Dilawar or Abdul G<.ni,
the learned Sessions Judge, in
(t) [ 1964) J S.C.R. 237.
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NARAYAN SWAMI v. MAHARASHTRA (Vaidlalingam, J.) 93
paragraph 20, refers to the statement of Dilawar, wherein he
refers to the circumst~nces, 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. Wuikar, on June 14,
I 966, in .the dacoity case. The learned Sessions Judge also refers
to tho; .fact that Di!awar has given a consistent version throughout, inculpating .lie appellant, both in his evidence in Sessions
Case No. 8 of 1966, as well as in his statem,,nt 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 appellam is guilty, has placed considerable reliance on the evidence of Dilawar, given in the dacoity case and
to his statements, rnade und~t 5. '342 Cr.P.C., 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-examining Dila\l(ar, in the said 1:ase; and the statements of
Dilawar, as co-accused, made under s. :942 Cr.P.C., 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 very serious illegalities, com.tlitted by the learned Sessions Judge, must be considered to have been approved,
by the learned Judges of the High Court, when tl\ey dismissed the
appeal, summarily.
In fact, we an~ inclined to think, that, by
dismissing the appeal summarily, the learned Judges of the. High
Court have omitted to ·note thr.se 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 embatk upon, in . thi:;
appeal.
That is essentially for the High Court, as a Court of
appeal, to investigate, arid come to.a conclusion, one.way or th<~
other.
The .;econd 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 June 22, 1966, and before the complaint was
filed, by Mr. Waikar, on July 8, 1966, against the appellant, the
appellant was not given an opportunity of being heard, as required under s. 479A, Cr.P.C.
This contention has been raised,
even before the Committing Magistrate, 11-S a perusal of the order
of that Magistrate, will show.
This objection, was again taken,
before the learned Ses 0ions Judge.
The learned Sessions Judge
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SUPREME COURT REPORTS
( 1968] 2 S.C.R.
has. tak.~n the view that the show cause notice, issued by
Mr.
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Wa1kar, t' lhe appellant, on June 14, 1966, is a sufficient compliance with the p1ovisions of that section. The learned Sessions
Judge is also of !he view that, under s. 479A, Cr.P.C., 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 find:ngs
are r.~corded in the judgment.
The question, as to whe'her the
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appellant has been given an opportunity, ot being heard, under s.
4 79A. is again, not only in our opinion, an arguable point, but
also a substantial ~nd important one.
The discussion. contained above, will clearly show that the
appeal. tiled by the appellant, before the H;gh Court of Bombay.
was an arguable one, and it also raised substantial and important
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questions. for consideration at the hands of 'he High Court. We
are therefore satisfied that the High Court was not justified, in
dismissing the appeal. tiled by the appellant, summarily.
In vi.~w of this conclusion, the order of the High Court, dated
April 27, 1967, dismissing Crl. Appeal No. 74 of 1967, is set
aside, and the said appeal is remanded to the High Cou~t, fer
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fresh disposal, in the light of the "bservations, contained m this
judgmem. This appeal is allowed. accordingly.
V.P.S.
Appeal allowed and remanded.
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