Sitaram and ors. Vs. State of M.P. - Court Judgment

Excerpt:
- [a.d. koshal,; d.a. desai,; p.n. shinghal,; p.s. kailasam and; v.r. krishna iye, jj.] rule 15(1)(c) of order xxi of the supreme court rules, 1966 envisages that the petition of appeal under sub-clause (a) or sub-clause (b) of clause (1) of art. 134 of the constitution or under the supreme court (enlargement of criminal appellate jurisdiction) act, 1970 or under s. 379 of the code of criminal procedure 1973, on being registered shall be put up for hearing ex-parte before the court which may either dismiss it summarily or direct issue of notice to all necessary parties or make such orders, as the circumstances of the case may require. the appellants in the appeal who were acquitted by the sessions court had been convicted and sentenced by the high court and awarded life imprisonment under s. 302 read with s. 149 ipc. when their appeal under the supreme court (enlargement of criminal appellate jurisdiction) act, 1970 was listed for preliminary hearing under rule 15(1)(c) of order xxi of the supreme court rules, 1966 it was contended (1) that the said provision empowering the court to dismiss the appeal summarily was ultra vires the enlargement act, 1970, (2) the power of the supreme court to frame rules under art. 145 of the constitution can not be extended to annul the rights conferred under an act of parliament and (3) that an appeal under the enlargement act, 1970 cannot be dismissed summarily without calling for the records, ordering notice to the state and without giving reasons. held: (per krishna iyer, shinghal & desai, jj.) article 134(1)(c) spells a measure of seriousness because the high court which has heard the case certifies that it involves questions of such moment that the supreme court itself must resolve them. to dispose of such a matter by a preliminary healing is to cast a reflection on the high court's capacity to understand the seriousness of a certification. [1095 d-e] article 136 vests a plenary discretion in the supreme court to deign or decline to grant leave to appeal against any conviction or sentence. before deciding to grant or reject such leave the court accords an oral hearing after perusing all the papers produced. once leave is granted, the appeal is heard, after notice to the state, in full panoply. after leave, the appeal is born. then it ripens into fullness and is disposed of when both sides are present. no appeal after leave, is dismissed summarily or ex-parte. if art. 136 gives a discretionary power to grant leave to appeal or to dismiss in limine, after an ex-parte hearing (or after issue of notice if the court so chooses), art. 134 which gives a constitutional right to appeal as it were, must stand on a higher footing lest the constitution makers be held to have essayed in supererogation. [1095g-1096a] there is much more 'hearing' content in an absolute appellate right than in a precarious 'special leave' motion. jurisprudentially, a right is large than a permission. art 134 puts the momentous class of cases covered by it beyond the discretionary compass of art. 136 and within the compulsory area of full hearing such as would follow upon leave being granted under art. 136(1). a full hearing may not obligate dragging the opposite side to court involving expense and delay. fullness of hearing of the proponent is not incompatible with non-hearing of the opponent when after appreciating all that could be urged in support of the cause there is no need felt to call upon the other side, as where the proposition is groundless, frivolous or not prima facie statable. [1096b-d] article 134(2) empowers parliament to expand the jurisdiction of the supreme court to entertain criminal appeals. in exercise of this power, parliament enacted the supreme court (enlargement of criminal appellate jurisdiction) act, 1970 in its grave concern for long incarceration being subject to great scrutiny at the highest level if first inflicted, by the high court. a right of appeal to the supreme court was granted when the high court has, for the first time sentenced an accused to life imprisonment or to a term of or above ten years of rigorous imprisonment and equated it with that granted under art. 134(1)(a) and (b). [1097g-1098d] the nature of the appeal process cannot be cast in a rigid mould as it varies with jurisdiction and systems of jurisprudence. whatever the protean forms the appellate process may take, the goal is justice so that a disgruntled litigant cannot convert his right of appeal into breaking down the court system by sufferance of interminable submission after several tribunals have screened his case and found it fruitless. the signification of the right of appeal under art. 134 is a part of the procedure established by law for the protection of life and personal liberty. nothing which will render this right illusory or its fortune chancy can square with the mandate of art. 21.  when the high court trying a case sentences a man to death a higher court must examine the merits to satisfy that human life shall not be haltered without an appellate review. a single right of appeal is more or less a universal requirement of the guarantee of life and liberty rooted in the conception that men are fallible, that judges are men and that making assurance doubly sure before irrevocable deprivation of life or liberty comes to pass, full-scale re-examination of the facts and the law is made an integral part of fundamental! fairness or procedure. [1105c, e] the life of the law is not perfection of theory but realisation of justice in the concrete situation of a given system. it is common knowledge that a jail appeal or an appeal filed through an advocate does not contain an exhaustive accompaniment of all the evidentiary material or record of proceedings laying bare legal errors in the judicial steps. it is not unusual that a fatal flaw has been discovered by the appellate judges leading to a total acquittal. such a high jurisdiction as is vested by art. 134 calls for an active examination by the judges and such a process will be an ineffectual essay in the absence of the whole record. a preliminary hearing is hardly of any use bearing in mind that what is being dealt with is an affirmation of death sentence for the first time. section 366 of the code requires the court of session which passes a sentence of death to submit the proceedings to the high court and rulings insist on an independent appellate consideration of the matter and an examination of all relevant material evidence. the supreme court's position is analogous, and independent examination of materials is impossible without the entire records being available. so it is reasonable that before hearing the appeal under rule 15(1 ) (c) of order xxi, ordinarily the records are sent for and are available. counsel's assistance apart, the court it self must apply its mind, the stakes being grave enough. [1105f- 1106b] the recording of reasons is usually regarded as a necessary requirement of fair decision. the obligation to give reasons for decision when consequence of wrong judgment is forfeiture of life or personal liberty for long periods needs no emphasis, especially when it is a first appeal following upon a heavy sentence imposed for the first time. the constraint to record reasons secures in black and white what the judge has in mind and gives satisfaction to him who is condemned that what he has had to say has not only been 'heard' but considered and recorded. art. 21 is a binding mandate against blind justice. in the narrow categories of cases covered by art. 134(1)(a) and (b) and s. 2(a) of the enlargement act, the subject matter is of sufficient gravity as to justify the recording of reasons in the ultimate order. [1160f-g, 1106h-1107a] protection at the third deck by calling for the records or launching on long ratiocination is a waste of judicial time. our rules of criminal procedure provide for dismissal at the third level without assigning written reasons, not because there are no reasons, but because the tardy need to document them hampers the hearing of the many cases in the queue that press upon the time of the court at that level. [1107f] order xxi, rule 15(1)(c) of the rules in an enabling provision not a compulsive one. harmonious construction of art. 134 and art. 145 'leads to the conclusion that the contemplated rules are mere machinery provisions. the sequence is simple. the formalities for entertaining certain types of appeal ale covered by art. 145(1)(d) the manner of hearing and disposal is governed by art. 145(1)(b) and the substantive sweep of the appeal as a method of redressal is found in art. 134. [1107g-h, 1108d, 1109a]. it is daily experience to see judges on the high bench differ, and a fortiori so in the field of sentence, this reality is projected in the context of full freedom for the first appellate decider of facts to reach his own finding on offence and sentence, only to highlight how momentous it is-for the appellant to have his case considered by the highest court when the constitution and parliament have conferred a full right of appeal summary dismissal, save in glaring cases, may spell grave jeopardy to life-giving justice that is why order xxi rule 15(1)(c) while it survives to weed out worthless appeals, shall remain sheathed in extra- ordinary cases where facts on guilt or the wider range of considerations on sentence are involved. [1109g-1110b] rule 15(1)(c) of order xxi is general and covers all conceivable cases under art. 134(1). it operates in certain situations, not in every appeal. it merely removes an apprehended disability of the court in summarily dismissing a glaring case where its compulsive continuance, dragging the opposite party, calling up prolix records and expanding on the reasons for the decision, will stall the work of the court (which is an institutional injury to social justice) with no gain to anyone, including the appellant to keep whom in agonising suspense for long is itself an injustice. [1111c-d] if every appeal under art. 134(1) (a) and (b) or s. 2(a) of the enlargement act, where questions of law or fact are raised, is set down for preliminary hearing and summary disposal, the meaningful difference between art. 134 and art. 136 may be judicially eroded and parliament stultified. the minimum processual price of deprivation of precious life or prolonged loss of liberty is a single comprehensive appeal. to be peevel by this need is to offend against the fair play of the constitution. [1111h-1112b] upholding the vires of order xxi rule 15(1)(c) of the supreme court rules and also s. 384 of the criminal procedure code the majority however held that in their application both the provisions shall be restricted by the criteria set out hereunder ns a permissible exercise in constitutionalisation of the provisions. [1112h] order xxi rules 15(1)(c) in action does not mean that all appeals falling within its fold shall be routinely disposed of. such a course obliterates the difference between articles 134 and 136, between right and leave. the rule in cases of appeals under art. 134(1)(a) and (b) and s. 2(a) is notice, records and reasons, but the exception is preliminary hearing on all such materials as may be placed by the appellant and brief grounds for dismissal. this exceptional category is where, in all conscience, there is no point at all. in cases of real doubt the benefit of doubt goes to the appellant and notice goes to the adversary even if the chances of allowance of the appeal be not bright. [113a-c] [with a view to invest clarity and avoid ambiguity, order xxi rule 15(1)(c) may be suitably modified.] maneka gandhi v. union of india, [1978] 1 scc 248; presidential ref. no. 1 of 1978 [1979] 2 scr 476; wiseman v. barneman, [1971] ac 297; russel v. duke of norfolk, 11949] 1 all. er 109, ponnamma v. arumogam, [1905] ac at p. 390; colonial sugar refining co. v. irving, [1905] ac 369; newman v. klausner, [1922] 1 kb 228; referred to. black's law dictionary 4th edn. p. 1368, stroud's judicial dictionary, 3rd edn. vol. 1, pp. 160-161; current legal problems 1958 vol. 11 p. 194, law quarterly review vol. 71, 1955 p. 410-11. the judicial process by henry j. abraham, 1962 pp. 159-160; referred to. per kailasam & koshal, jj. (dissenting) article 145 of the constitution empowers the supreme court subject to the provisions of any law made by parliament with the approval of the president to make rules from time to time for regulating generally the practice and procedure of the court. [1116b] article 134 confers appellate jurisdiction on the supreme court in regard to criminal matters, and while an unrestricted right of appeal is provided to the supreme court under clauses (a) and (b) an appeal under such clause (c) is provided only when the case is certified by the high court as a fit one for appeal. further, an appeal under sub- clause (c) shall lie subject to such provisions as may be made in that behalf under clause (1) of art. 145 and to such conditions as the high court may establish or require [1116d-1117b] the supreme court (enlargement of criminal appellate jurisdiction) . act, 1970 has conferred on the supreme court further power to entertain and hear appeals than conferred on it under art. 134(1)(a) and (b) as provided for in art. 134(2) of the constitution. [1117c] article 145(1)(b) enables the supreme court to frame rules as to procedure for hearing appeals. rule 15 of under xxi provides for the procedure for hearing appeals and is valid so far as to the procedure of hearing appeals. [1117d- e, 1118c] while s. 374 confers a right of appeal, s. 375 and s. 376 restrict such a right. section 384 prescribes the procedure for hearing appeals enabling the court to dismiss certain appeals summarily and to deal with others under s. 385 if they are not summarily dismissed. the right of appeal conferred can be curtailed by procedure as envisaged in s. 384 cr. p.c. or rule 15 order xxi of the supreme court rules. [1120d] an appeal to the supreme court under s. 374 cr. p.c. is restricted by the provisions of s. 375 and s. 376 and could be dealt with summarily under s. 384 cr. p.c. an appeal to the supreme court is subject to the several provisions of the cr. p.c. including the provisions relating to summary disposal of the appeals. [1120e-f, g] the powers and the jurisdiction of the appellate court as prescribed by the criminal procedure code and the rule cannot be said to deny a right of hearing to the appellant. the right to be heard in an appeal is regulated be statute. after a full trial the judgment is rendered by a high judicial officer such as a sessions judge or a high court judge. the appellate court has before it the judgment of the lower court and the petition for appeal. at the preliminary hearing the appellant or his pleader is heard before the court decides to dismiss the appeal summarily. the power to summarily dismiss an appeal is conferred under the criminal procedure code when the court is satisfied that there are no sufficient grounds for interfering with the judgment appealed against. this decision is taken by the appellate court being the chief judicial magistrate, court of sessions, the high court or the supreme court. in the case of the chief judicial magistrate and court of sessions, reasons should be recorded for summarily dismissal. the high court and the supreme court need not record reasons for summarily dismissing the appeal. it is necessary that the supreme court or the high court should be satisfied that there are not sufficient ground for interfering. the conclusion is arrived at after hear-ing the appellant, examining the judgment and the petition for appeal. the appellate court is discharging an onerous duty in dismissing a case summarily. the code provides for calling for the records before dismissing an appeal. in cases where an appellant is sentenced to death, imprisonment for life or long term of imprisonment, it is the bounden duty of the appellate court to hear the appellant, examine the petition of appeal and copy of the judgment appealed against. if it feels necessary to call for the records of the case, it is duty to call for the records and examine them, before coming to the conclusion that there are not sufficient grounds for interfering. it is the responsibility of the appellate authority to order notice and hear the other side if it is not satisfied that there be no sufficient grounds for interfering. equally it is the duty of the appellate court to dismiss the appeal summarily if it i.e satisfied that there are no sufficient grounds for interfering is duty is imposed for regulating the work of the courts for otherwise judicial time would be unnecessarily spent. taking into account the fact that the duty to decide the question where there are no sufficient grounds for interfering is placed on highly placed judicial officers after affording a due hearing, it cannot be stated that the very right of appeal bas been taken away. [1122e-f, 1122h-1123f] the procedure contemplated in rules 13, 14 and 15 of the supreme court rules are almost similar to the provisions of the code of criminal procedure relating to appeal. in an appeal sent by the appellant from jail he is entitled to send any written arguments which he may desire to advance in support of his appeal. the court in proper cases in which it considers it desirable would engage an advocate to present the case of the appellant in jail. the mere fact that the appellant in jail is not being heard in person or through an advocate would not mean that the appeal is not being heard. the court peruses the judgment, petition of appeal and the written arguments, if any, before proceeding to take action under rule 15. this court being the highest court is not required to give reasons but is expected to bestow the greatest care in exercising the power of summary dismissal under rule 15. [1124g-1125a] p.k. mittra v. state of west bengal, [1959] suppl. i scr 63; shankar kerba yadhav v. state of maharashtra, [1970] 2 scr 227; minakshi v. subramanya, 14 ia 168; govinda kadtuji kadam v. state of maharashtra, [1970] 1 scc 469; referred to. maneka gandhi v. union of india, [1978] 2 scr 621; distinguished. - both the courts below while accepting the testimony of these witnesses were fully alive to these infirmities but have chosen to accept their statements by holding that the witnesses were reliable. gupta who has been of great assistance to us in deciding this case and has tried his best to support the case of the appellants, but in view of the findings of facts arrived at by the two courts below, we are unable to interfere.s. murtaza fazal ali, j.1. in these two appeals by special leave, the appellants, except sita ram who has been wrongly included as one of the appellants, have been convicted under sections 302/149 and 302/34 and some of them have been sentenced to imprisonment for life and others to various terms of imprisonment under different sections of i.p.c. it is not necessary to give the necessary particulars in the view that we take in this case. the prosecution case has been detailed in the judgment of the high court and the sessions judge. we have gone through the judgment of the sessions judge; and the high court and we do not find any error of law in the judgment of the high court mr. gupta appearing for the appellants, submitted that the occurrence was the result of a fight between two factions and it was contended that all the members of one family have been implicated due to previous enmity. in order to fortify his argument, counsel for the appellants relies on the report given by one babu kotwar which appears to be at page 1349 of the paper book. this report shows that one babu kotwar of bhandaria appeared at the police station and reported that a quarrel was going on between deshwalis and bharuds in the village, bhandaria. the report does not show that babu kotwar was an eyewitness who had himself seen the occurrence, nor does his report disclose any cognisable offence nor does the informant mention as to whether he had identified any of the accused nor does he disclose the circumstances in which the occurrence took palce. under these circumstances, therefore, babu kotwar was not at all a material witness. it was, however, argued by mr. gupta that this witness was cited in the chargesheet as a prosecution witness but was given up later. that by itself would no1 show that he is a material witness. the information which he gave does not at all show that his evidence was necessary for the unfolding of the prosecution narrative.2. it was then contended that all the eight witnesses examined by the prosecution are interested and inimical and therefore no reliance should be placed on them. both the courts below while accepting the testimony of these witnesses were fully alive to these infirmities but have chosen to accept their statements by holding that the witnesses were reliable. moreover, it appears that the evidence of these witnesses was corroborated by p.ws. 11, 13 and 39. this court in special leave would not reappraise the evidence for itself unless a clear error of law in the appreciation of the evidence is found. no other point was argued before us although, some reference is made to certain questions of fact which this court does not entertain in appeal by special leave. we are extremely grateful to mr. gupta who has been of great assistance to us in deciding this case and has tried his best to support the case of the appellants, but in view of the findings of facts arrived at by the two courts below, we are unable to interfere. for these reasons, therefore, we do not find any error in the judgment of the high court or any merit in this appeal. the appeals are accordingly dismissed.