LexGOVINDA KADTUJI KADAM & ORS. versus THE STATE OF MAHARASHTRA
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r A B c D E F G 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 Court- Appeal-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 subs- tantial 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 distinguisha- ble 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, re- ferred 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 H 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 assemb- bly 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 com- mon 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 con
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