NARAYAN SWAMI v. STATE OF MAHARASHTRA
Citation: [1968] 2 S.C.R. 88; 1967 INSC 246
Court: Supreme Court of India
Bench: VISHISHTHA BHARGAVA , C.A. VAIDYIALINGAM
Judgment date:
Case summary
1967 INSC 246. Supreme Court of India judgment dated 1967-10-26. NARAYAN SWAMI v. STATE OF MAHARASHTRA. Read the judgment and case details on LawSphereX.
Judgment text
90 SUPREME COURT REPORTS [1968] 2 S. C. R. .. •lllARAYAN SWAMI A v. STATE 01' MAHARASHTRA October 26, 1967 B JV. IlHARGAVA ASD C. A. VAIDIALI~GAM, JJ. ) P:-actict.. -fligli l:oto:1-·Cri111i. 11al appeal r 1L~-S111111n. :iry diJn1is. \a/ hy Jligh C. :011rr--lf justified. 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, 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. 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 through-out, 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.
Accord-ing 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 requir-ed 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 ions Judge. The learned Sessions Judge has. tak. ~n the view that the show cause notice, issued by Mr. Wa1kar, t' lhe appellant, on June 14, 1966, is a sufficient com-pliance 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 ll 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 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 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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