M. D. SHUKLA & ORS.

STATE OF GUJARAT & ORS.

February 6, 1970

[J. C. SIL\H AND K. S. HEGDE, JJ.)

States Reorganisation Act 37 of 1956 ss. 115, 116, 111-Bombay Reorganisation Act 11 of 1960, ss. 81, 82 & 83-Pennanent employees of Saurashtra and Kutch States allotted to Bombay State afer passing of Act 37 of 1956 but postfd in districts of Saurashtra and Kutch-Allotted to Gu; arat State after passing of Act 11 of 1960-Transferred to Secretariat-Government order regularising their services in Secretariat and fixing their pay and seniority-Regularisation whether amounted to 'absorption' within nieaning of Bombay Allocated Government Servants' (Absorption. Seniority, Pay and Allowances) Rule., 1957,-R. 138 of Bombay Civil Services Classification and Rearuitment Rules, 1939 as amended in 1957 whether violated by such regularisation.

Prior to November I, 1956 the appellants were holding permanent posts in the ministerial service of the Secretariats of the Part B State of Saurashtra and the Part C State of Kutch.

By virtue of s, 8 of the States Reorganisation Act 37 of 1956 the new State of Bombay which included the territories elf the States of Saurashtra and Kutch was formed.

Under s. 115(1) of the Act the appellants were allotted to serve in connec:tion with the affairs of the new State of Bombay.

Bv the proviso to s. 115(7) it was provided that 'conditions of service applicable immediately before the appointed day to the case of any person allotted to another State shall not be varied to his disadvantage except with the previous approval of the Central Government'.

Section 116 provided for the continuance of officers in equivalent posts.

By s. 117 power was conferred upon the Central Government to give directions to State Governments for the purposes of ss. 114, 115 and 116. The Act authorised the Central Government to establish one or more Advisory Committees to advise the Government on the division and integration of the services in the new States and for ensuring fair and equitable treat, ment to all persons affected by the provisions of s. 115 and for proper consideration of any representation made by those persons. A large majority of the members elf the ministerial branch of the Secretariats of the State of Saurasht•a and Kutch were unwilling to be posted in the Secretariat of the new State of Bombay.

A large majority out of them including the appellants were accordingly posted in the districts of the former States of Saurashtra and Kutch.

Under the Bombay Reorganisation Act 11 of 1960 the States elf Gujarat and Maharashtra were carved out of the territory of the new State of Bombay. Sections 81, 82 and 83 of the 1960 Act were substantially the same as ss. 115, 116 and 117 of the 1956 Act. The services of the appellants were under s. 81 of the Act allotted to the newly constituted State of Gujarat. The State elf Gujarat transferred the appellants from the districts to the Secretariat~ After consulting the Public Service Commission it issued on August 19,

19~6 an order"relrising" the services of the app.ellants and fixing their pay and semonty. The officers of the Secretariat who before the passing of the said order cotistituted the ministerial service filed a petition in the High Court challenging its validity. The High Court allowed the petition mainly on two grounds, namely : (i) that the appellants were not absorbed in the ministerial services of the Secretariat within the meaning

of the Bombay Allocated Servants' (Absorption, Seniority, Pay and Allowances) Rules, 1957; (ii) that r. 138 of the Bombay Civil Services Classification and Recruitment Rules, 1939 as amended in 1957 allowed recruitment to the Ministerial Staff of the Seci'etariat by nomination after an examination or by promotion from the Lower Division and it Vv'aS not open to the Government to adopt any other method.

The High Court's -decision was challenged in appeal before this Court. The Court noted that no equivalence had been established between the posts in the Secretariats of the States of Saurashtra and Kutch and the posts in the new State of Bombay or later in Guja:rat and that there had been no integration df the services by the Central Government.

It was conceded before the Court that the State had the authority to 1ransfer, subject to the Constitution and the rules made under Art. 309,

any public servant to render service which by his training and aptitude he was competent to do.

HELD: (i) The fact that the expression 'absorption' had not been used in the impugned order would not justify the inference that there was no intention to aOOorb the former Saurashtra and Kutch State personnel 1n the Secretariat. [52! F]

In the absence of determination of equivalent posts under the orders of the Central Government, the State df Gujarat was competent, as a matter of provisional arrangement to absorb the former Saurashtra and Kutch States personnel in the ministerial establishment of the Gujarat State Secretariat.

In terms the order said that the persons named therein "should "be treated to have been regularly appointed in the posts shown against their names in column 4 of the statement" appended to the order. That clearly amounted to absorption. [521 0-H]

(ii) The High Court was wrong in holding that the impugned crrder was bad because it contravened r. 138 of the Recruitment Rules.

Assuming that r. 138 requires the State to follow a certain method for .recruitment . to the ministerial service, that rule made under Art. 309 of the Constitution cannot take away the statutory right vested in the per~

sonnet of the !former Saurashtra and Kutch States which ther acquired under s. 115(7) of the States Reorganisation Act, 1956 to hold posts in the new State which were equivalent and on terms which were not, unless previous approval of the Central Government was obtained, disadvantage- -0us.

Since the arrangement which was made by the Gujarat Government must be regarded as provisional and to ensure so Jong as the Central Government did not make a finaJ dcision, it was not open to the officers of "the Secretariat to challenge the authority of the Government of Gujarat either to transfer officers from the Districts and to post and assign them <futies in the Secretariat or to fix their pay and seniority among the officer <>f the Secretariat performing ministerial duties. [523 G-524 BJ

N. Raghavendra Rao v. Deputy Co1nmissioner, South Kanara, Manga- 1ore. [1964) 7 S.C.R. 549 and Union of India & Anr. v. P. K. Roy & Ors.

11968) 2 S.C.R. 186, applied.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 458 of 1969.

Appeal from the judgment and order dated July 1, 1968 of the Gujarat High Court in Special Civil Application No. 1499 of 1966.

M. C. Chagla, S. K. Dholakia, Viet Kumar and J. R. Nanavati, for the appellants.

S. T. Desai, B. D. Sharma and S. P. Nayar, fot respondent No. 1.

S. S. Shukla, for respondents Nos. 2 to 148.

The Judgment of the Court was delivered by Shah, J.

Certain officers in the ministerial branch of the Secretariat Service of the State of Gujarat moved a petition in the High Court of Gujarat for an order directing the State Gover, nment to treat its order dated August 19, 1966 as "illegal, void and of no effect" and to forbear from enforcing its order treating the persons whose nanies were specified in the annexure to the order. as servants of the "Secretariat cadre".

The High Court of Gujarat granted the petitio.n and declared the order dated August 19, 1966, invalid.

With certificate granted by the High Court this appear has been filed.

Prior to November 1, 1956, the appellants were holding permanent posts in the ministerial service of the Secretariats of the Part B State of Saurashtra and the Part C State of Kutch. By virtue of s. 8 of the States Reorganization Act 37 of 1956 the new State of Bombay, which included the territories of the States of Saurashtra and Kutch, was formed.

Section 115 of the States Reorganisation Act made provisions relating to services other than All-India Services.

By sub-s. (1) of s. 115 it was enacted, inter a/ia, that every person who immediately before the appointed day was serving in connection with the affairs of any of the existing States specified therein shall, as from that day, be deemed to have been. allotted to serve in connection with the affairs of the successor State to that existing State.

By the proviso to sub-s. (7) it was provided that conditions of service applicable immediately before the appointed day to the case of a, ny person allotted to another State shall not be varied to his disadvantage except with the previous approval of the Central Government.

Section 116 provided for the continuance of officers in the same posts.

By s. 117 power was conferred upon the Central Government to give directions to any State Government that may appear to be necessary for the purpose of giving effect to the provisions of ss. 114, 115 and 116 of the Act.

Under the States Reorganisation Act, 1956, the appellants were allotted to serve in colljllection with the affairs of the new State of Bombay. In exercise of the powers under Art. 309 of the Constitu!ion, the Government of Bombay sanctioned certain rules called "The Allocated Government Servants' (Absorption, Seniority, Pay & Allowances) Rules, 1957". Those rules governed the servants who were allotted to the State of Bombay on reorganisation.

A large majority of the members of the ministerial branch of the Secretariat of the States of Saurashtra and Kutch were, it appears, unwilling to be posted in the Secretariat of the new State of Bombay.

The, y were accordingly posted in the districts of the former States of Saurashtra and Kutch.

Under Act 11 of 1960 called "The Bombay Reorganisaticm Act" the States of Gujarat and Maharashtra were carved out of the territory of the new State of. Bombay.

Under s. 81. provisions relating to services other than All-India Services were made and by s. 82 provisions as to the continuance of officers in the same posts was made.

By s. 83 power was given to the Central Government to give directions to the States.

Those provisions were substan- .tially the same as the provisions of ss. 115, 116 and 117 of the

States Reorganisation Act, 1956. The appellants were allotted to serve in connection with the affairs of the State of Gujarat under s. 81 of the Bombay Reorganisation Act.

The newly constituted State of Gujarat finding a dearth of experienced officers in the Secretariat transferred the appellants at diverse times between the years 1961, 1962 and 1963 to the Secretariat of the State of Gujarat and assigned them duties in <:Onnection with the Secretariat Service.

Orders were issued from time to time fixing their scales of pay and seniority.

Apparently the Public Service Commission raised some objections about an attempted integration between the officers who were originally serving in the Secretariat Service, and those who were posted from the districts.

Ultimately on August 19, 1966, the State Government issued the o:rder to the following effect :

"The questiol'J. of regularising the appointment to various posts in the Secretariat Department on and after 1st May 1960 of the drafted persons was under the consideration of Government for some time.

Government is now pleased to direct, in consultation with the Gujarat Public Service Commission, that the persons shown in the accompanying statement should be treated to have been regularly appointed in the posts shown against their names in column-4 of the statement with effect from the date shown in column-5 in the Departments mentioned in column-3 of the statement.

2. As regards fixation of their pay and seniority orders have already been issued in Government Resolution General Administration Department No. SCT-

1161-F, dated 25th April, 1961 and Government Resolution General Administration Department No. SCT-

1162-KH, dated 14th March 1964. The Departments are requested to fix their pay and seniority accordingly.''

Appended to the order was a list of 90 persons designating the departments iin which they were posted, posts to which appointed and the dates from which they were appointed.

The officers of the Secretariat who before the date of the order . constituted the ministerial service then filed the petition out of which this appeal arises challenging the validity of the order of the Government.

The petition was founded on three grounds : ( 1) that the order violated r. 138 of the Recruitment Rules framed by the Government of Bombay in 1957; (2) that the order violated the proviso to cl. ( 6) of s. 81 in that it altered the conditions of service of the applicants; and (3) that it violated the provisions of the Allocated Government Servants' (Absorption, Seniority, Pay & Allowances) Rules, 1957.

Counsel for the applicants conceded before the High Court that the transfer of the former Saurashtra 11nd Kutch States Secretariat personnel to the Gujarat Secretariat per se was not open to objection.

The High Court did not consider whether the Saurashtra and Kutch States secretariat personnel had "any rights flowing on account of absorption 11nd integration of service under the States Reorganisation Act, 1956 or the Allocated Government Servants' Rules, 1957 ." But the High Court held that since the impugned order purported to amalgamate the former Saurashtra and Kutch States personnel with the Gujarat Secretariat Service contrary to the terms of r. 138 of the Recruitment Rules. and the Governmept had no authority to vary the method of recruitment provided by the statutory r. 138 of the Recruitment Rules which was mandatory, the orders of transfer to the Secretariat which was not made in the process of integration could not operate as absorption under the Allocated Government Servants' (Absorption, Seniority. Pay & Allowances) Rule~. 1957. The High Court also observed that when the ministerial service employees of the former Saurashtra and Kutch States Secretariats were absorbed in the districts, integration of the services was complete and any transfer thereafter to the Secretariat could not and did not amount to absorption in equivalent posts.

It is necessary first to examine the scheme of ss. 115 & 116 of the States Reorganisation Act, 1956. Section 115 was intended to provide for the conditions of service of employees who ilnmediatelv before November 1, 1956 were serving i; n connection with the affairs o.f a State and were allotted to serve in connection with the affairs of another State.

Power to fix the conditions of service was reserved exclusively to the Central Government.

For that purpose the Central Government was authorised to establish one or more Advisory Committees to advise the Government on the division and integration of the services in the new States and for ensuring fair and equitable treatment to all persons affected by the

,520

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;· '~··.'I . :·-.- / "'" -i

,' SUPREME , cOURT REPORTS

[1970] 3 S.C.R. \" '.. . .. \\ ·,. '-

'-<: provisions f s.· 115 and for proper consideratlonof any r; p; sen- Ao . tatio°'made by those persons.

By the proviso to sub-s. (7) s. 115 a guarantee was_ given to every allotted public servant that his conditions of service shall not be varied to his disadvantage except with the previous approval of the Central Government.' Section 116 provided for the continuance of officers in equivalent posts. This Court in N. Raghavendra Rao v. Deput;:y. Commissioner, South Kanara, Mangalore(1) held that the effect of sub-s. (7) of s. ll 5 is to preserve the power of the State to make rules under Att; 309 of the Constitution, but the proviso imposes a limitatiqn on the exercise of that power; the !imitation is that the State cannot vary the conditions of service applicable immediately before November 1, 1956, to the disadvantage of persons mentioned in sub-ss.

(1) & (2) of s. 115. In the view of the Conn the broa.d purpose underlying the proviso to s. 115 (7) of the Act was to ensure that the conditions of service shall not be changed except with the prior approval of the Central Government, that is, before embarking on varying the conditions of servfce, the State Governments should obtain the concurrence of the Central Government. ·

In Union of India & Anr. v. P. K. Ro, v & Ors.(2) this Court held that it is the duty of the Central Government ta integrate the services, but the State may be asked to prepare a provisional gradation list provided the Central Government maintains its . control over it.

It is clear that the conditions of service applicable immediately before the appointed day in the case of any person who is allotted to anot.her State cannot be varied to his disadvantage except with the previous approval of the Central Government. This protection could not be removed by the rules made by the State subsequent to November 1, 1956, U; nless the previous approval of the Central Government was obtained thereto. It is true that the ministerial service personnel in the states of Saurashtra and Kutch, after they were allotted to the State of Bombay were posted and assigned duties in various districts in Saurashtra and Kutch.

But in the absence of evidence to show that the previous approval of the Ct; ntral Government was obtained, their right to be absorbed in equivalent posts in the new State of Bombay and later in the.State of Gujarat was not thereby affected. It appears that there has not been any equivalence established between the posts in the Secretariats of the States of Saurashtra and Kutch and the posts 'in the new State of Bombay and later in the State of Gujarat to which the members of the ministerial service of the Secretariats of former Saurashtra and Kutch States were allotted.

The mere fact that they were posted

(I) [1964] 7 S.C. R. 549.

(2) [1968[ 2 S. C. R. 186.

- 1

and continued to render service in the Districts will not in ur

judment, affect the right of the personnel to be absorbed in the eqmvalent posts m the Secretariat and on terms not disadvarita-· geous to those they were already entitled except with the previous approval of the Central Government. ·

B It was conced, and rightly! that the State has the authority to transfer, subiect to the Consl!tution and the rules made under Art. 30? any public servant to render service which by his training and aptitude he was competent to do.

Transfer of the personnel from the States o.f Saurashtra and Kutch to the Secretariat in the St~ of. Gujarat. and assignment of duties performable by the c mm1stenal staff m the Secretariat cannot be challenged, and that

because they were posted between 1956 and 1960 in the Districts they.will not e dprived <_>f their statutory right under s. 115(7)

pros?. Postu; ig m te districts was and must rema.\n purely

prov1s10nal~ unhl final mtegration is made by the Central Government.

It is common ground that no such final integratiO!ll had been made by the Central Government, _ D.

Two grounds appealed to the High Court in deciding the case against the appellants : ( 1) that the appellants were trimsferred to the Secretariat of the State of Gujarat, but they were not absorbed in the ministerial service of the Secretariat of the State of Gujarat.

In the view of the High Court there was merely "regularisation'' of the appointment of those persons for the purpose of performing service in the Secretariat; and (2) that the order dated.August 19, 1966 was contrary to the Recruitment Rules, 1957.

If it be grainted that the State was competent to transfer and did transfer the appellants to perform service in connection with F the affairs of the State in the Secretariat, it is difficult to hold that when the State "regularised" the service of the appellants in the secretariat with the consent of the Public Service Commission there was no absorption under the Absorption Rules.

It is true that the expression "absorption" has not been used in !he oi:cier, but that will not justify an inference that there was no mtentton to absorb G the former Saurashtra Kutch States personnel in the Secretariat. In the absence of determination of equivalent posts unde~ ,, the orders of the Central Government, !he State of Gujarat was ' competent, as a matter of provisional arrangem:nt to ab~rb e former Saurashtra and Kutch States personnel l\1l the mm1stenal establishment of the Gujarat State Secretariat.

In terms the order says that the persons named therein "should be treated to have 8 . been regularly appointed in the posts shown against their nam:s

itn column-4 of the statement" appended to the order.

That, In our judgment, amounted to absorption.

Original r. 13 8 o.f the Bombay Civil Services Classification and Recruitment Rules, 1939, was deleted and the following rule was -substituted on May 22, 1957. The relevant part of the rule reads:

"138. The ministerial staff in the Secretariat and attached offices is divided into two Divisions.

(a) Upper; and (b) Lower.

(i) Superintendents : Appointments shall be made by promotion from among Senior Assistants.

(ii) Senior Assistants : Appointments shall be made

by promotion from among J u, nior Assistants. c

(iii) Junior Assistants : Appointments shall be made either:-

(a) by nomination on the results of a competitive

examination held by the Bombay Public Service Commission, or n

(b) by promotion from among members of the Lower Division.

Provided that not more than one out of every four vacancies in the psts of Junior Assistants shall ordinarily be filled by promotion.

(2) To be eligible for appointment by nomination .a candidate must :-

(i) hold a degree in Arts, law, science, Agriculture or commerce o.'. a recognised University or possess an equivalent qualification;

(ii) have attained the age of 18 years; and

(iii) not have attained the age of 30 years in the case of members of the Lower Division appointed on the recomme, ndation of the commission and who have graduaied while in service and in a, ny other case 24 years on the first day of the month immediately following month in which the posts are advertised by the Commission.

H. Lower Division

(b) Clerb, clerk-typists, typists: Appointments shall be made by nomination on the results of a competi- tive examination held by the Commission.

A Provided that suitable members of Class IV services

who while in that service, have passed the Secondary School Certificate Exai; nination or an examination recognised by Government as equivalent to that examination, shall be eligible for appointment to the posts of clerks by promotion.

(2) To be eligible for appointment by nomipation, a candidate must :-

(i) have passed the secondary school certificate examination or an examination recognised by Government as equivalent to that examination;

(ii) have attained the age of 18 years; and

(iii) not have attained the age of 23 years on the first day of the month immediately following the . month in which the posts are advertised by the Commission.

A candidate• for the post of clerk-typist or typist must, also be able to type neatly and accurately at a ininimum speed of 40 wor.ds per minute.

The High Court held that recruitment to the ministerial staff in the Secretariat could only be by nomination or by promotion from among members of-the Lower Division, nomination being on the result o.f a competitive examination held by the Public Service

Commission and promotion being from the subordinate staff. Jn view of this rule, according to the High Court, it was inot open to the State Government to adopt any other method of recruitment of the members of the ministerial staff.

Counsel for the appellants contended that r. 138 only dealt with the existing servants anc! did not prevent any additional members from being amalgamated in the ministerial staff in the Secretariat.

He also contended that the recruitment did not amount to admission of an officer for the first time in the service. It is unnecessary for the purpose of this appeal to consider these arguments. Assuming that r. 138 requires the State to follow a certain method for recruitment to the ministerial service, that rule made under Art. 309 of the Constitution cannot take away the statutory right vested in the personnel of the former Saurashtra and Kutch States which they acquired under the States Reorganisation Act, 1956, to hold posts in the new State which were equivalent and on terms which were not, unless the previous approval of the Central Government was

obtained, disadvantageous.

Since the arrangement which is made by the Government of the State of Gujarat must be regarded as provisional and to enure so long as the Central Government does not make a final decision, it is not open to the officers of the Secretariat to challenge the authority of the Govemment of Gujarat either to transfer officers from the Districts and to post and l!SSi~ them duties in the Secretariat or to fix their pay and senionty among the officers in the Secretariat perfonning ministerial duties.

The appeal .must therefore be allowed and the order passed by the High Court must be set aside. The petition filed by the respondents Nos. 2 to 148 will stand dismissed.

There will be no order as to costs throughout.

G.C.

Appeal allowed.

M. D. SHUKLA & ORS

STATE OF GUJARAT & ORS

February 6, 1970

K. S. HEGDE, JJ.

States Reorganisation Act

ss. 115, 116, 111

Bombay Reorganisation Act

ss. 81, 82 & 83

States Reorganisation Act

Saurashtra

Kutch

s. 115(1)

s. 115(7)

Central Government

Section 116

s. 117

ss. 114, 115 and 116

s. 115

Bombay

Bombay Reorganisation Act

Gujarat

Maharashtra

Sections 81, 82 and 83

ss. 115, 116 and 117

s. 81

State elf Gujarat

August 19,

Guja

Art. 309

State df Gujarat

Gujarat State Secretariat

Art. 309

s. 115(7)

States Reorganisation Act, 1956

Gujarat Government

Government of Gujarat

[1964) 7 S.C.R. 549

1968) 2 S.C.R. 186

M. C. Chagla

S. K. Dholakia

Viet Kumar

J. R. Nanavati

S. T. Desai

B. D. Sharma

S. P. Nayar

S. S. Shukla

Shah

High Court of Gujarat

November 1, 1956

s. 8

Section 115

States Reorganisation Act

s. 115

Section 116

s. 117

ss. 114, 115 and 116

States Reorganisation Act, 1956

Art. 309

Government of Bombay

s. 81

s. 82

s. 83

ss. 115, 116 and 117

States Reorganisation Act, 1956

State of Gujarat

s. 81

Bombay Reorganisation Act

Secretariat of the State of Gujarat

August 19, 1966

1st May 1960

Gujarat Public Service Commission

s. 81

States Reorganisation Act, 1956

ss. 115 & 116

States Reorganisation Act, 1956

Section 115

s. 115

Section 116

s. 115

s. 115

State of Bombay

[1964] 7 S.C. R. 549

Art. 30

s. 115(7)

Recruitment Rules, 1957

State of Gujarat

May 22, 1957

Bombay Public Service Commission

Art. 309

States Reorganisation Act, 1956

Government of the State of Gujarat

Govemment of Gujarat


r A

GOVINDA KADTUJI KADAM & ORS. v.

THE STATE OF MAHARASHTRA February 9, 1970

[A. N. RAY AND I. D. DUA, JJ.]

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 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 H the appellants.

G. L. Sanghi, Badri Das Sharma and S. P. Nayar, for the respondent.

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

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.

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."

c 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 D 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 E 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 F 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 G 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.

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

A

GOVINDA KADTUJI KADAM & ORS

THE STATE OF MAHARASHTRA

February 9, 1970

A. N. RAY

I. D. DUA, JJ.

s. 147

s. 147

[1955] 2 S.C.R. 1177

[1964] 3 S.C.R. 237

AIR 1968 SC 609

Bombay High Court, Nagpur Bench

S. Barlingay

N. K. Kherdekar

A. G. Ratnaparklti

G. L. Sanghi

Badri Das Sharma

S. P. Nayar

Dua

Kondu

Ambu

Additional Sessions Judge, Akola

Vithalrao Khanderao Deshmukh

Vithalrao

Section 14

Penal Code

section 149

Indian Penal Code

Section 307

Indian Penal Code

Vithalrao Deshmukh

Section 307

Section 34

Indian Penal Code

Section 14

Indian Penal Code

High Court of Bombay

Chandurkar

s. 410

Cr.P.C

s. 418

s. 421

Cr.P.C

Mahajan

Art. 136

Chittaranjan Das

Mushtak Hussein

s. 147

I.P.C

[1955) 2 S.C.R. 1177

[1964) 3 S. C. R. 237

Kondo