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SUPREME COURT OF INDIA
30th March 1953
MAHAJAN, BOSE AND JAGANNADHA DAS JJ.
Mushtak Hussein, Appellant
Versus
The State of Bombay.
Criminal Appeal No. 96 of 1952
Advocates appeared
Shri A. S. R. Chari and Shri J. B. Dadachanji, Advocates, instructed by Shri V. P. K. Nambiyar, Agent - for Appellant; Shri C. K. Daphtary, Solicitor General for India (Shri Porus A. Mehta, Advocate, with him), instructed by Shri G. H. Rajadhyaksha, Agent-for the State of Bombay.
Held: In cases which prima facie raise no arguable issue the High Court may dismiss an appeal summarily without giving any reason, but where some arguable points are raised which require consideration, the summary rejection order should give some indication of the views of the High Court on the points raised. - Appeal-Criminal trial-Charge to jury-Misdirection Appellate court may go into the whole case to determine whether there has been failure of justice.
Held: Where a jury has been misdirected and has based its verdict on assumptions and conjectures, there are various courses open to the Supreme Court on appeal. It may order a retrial of the appellant. It is open to it to remit the case to the High Court with a direction that it should consider the merits of the case in the light of the decision of the Supreme Court and say whether there has been a failure of justice as a result of these misdirections, or it may examine the merits of the case and decide for itself whether there has been a failure of justice in the case. In deciding whether there has been in fact a failure of justice in consequence
L From New Piecegoods Bazar Co., Ltd. v. Commr. of Income-Tax, Bombay, A.I.R. 1948 Bombay 72.
of a misdirection the court is entitled to take the whole case into consideration. I - Article 136 - Special leave petitions-Summary rejection order by High Court-High Court must state its views-Criminal Procedure Code, S. 421.
Held: It was not right for the High Court to have dismissed the appeal preferred by the appellant to that court summarily> as it certainly raised some arguable points which required consideration. In cases which prima facie raise no arguable issue that course is, of course, justified but the Supreme Court 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 the Supreme Court sometimes feels embarrassed if it has to deal with those matters without the benefit of that opinion. - Section 297-charge to jury-misdirection-Appellate court may go into the whole case to determine whether there has been failure of justice. - Section 421-Constitution of India, Article 136-Special leave petitions-Summary rejection order by High Court-High Court must state its views. - Sections 423 (2), 297 and 537 (d)-Setting aside of verdict of jury.
Held; The statute law in India in certain circumstances permits an appeal against a jurys verdict and authorizes the appellate court to substitute its own verdict on its own consideration of the evidence. It has conferred on the appellate court extensive powers of overruling or modifying the verdict of a jury in the interests of due administration of justice confident that the appellate Judges who have not themselves seen and heard the witnesses, will not exercise lightly the responsible power entrusted to them. But unless it is established in a case that there has been a serious misdirection by the Judge in charging the jury which has occasioned a failure of justice and has misled the jury in giving its verdict the verdict of the jury cannot be set aside. - Charge to jury-Mis. direction-Failure of justice-Practice Appeallate Court-Summary rejection of appeal Duty to state reasons.
Judgement
Mahajan J. - The appellant on 28-7-1951 was convicted on a charge under S. 366, Penal Code, for having kidnapped at Poona a minor girl Shilavati in order that she may be forced or seduced to illicit intercourse and was sentenced to undergo rigorous imprisonment for two years after a trial before the third additional Sessions Judge of that place sitting with a jury of five. The jury returned a verdict of guilty by a majority of three to two. The Sessions Judge came to the conclusion that the verdict was not perverse. He therefore accepted it. The appellant preferred an appeal to the High Court but this was summarily dismissed. This appeal is before us by special leave.
2. The prosecution case was that on 12-12-1949 the appellant who was a music teacher went to the house of Shilavati and on the pretext that there was a girl waiting in his house and that he wanted to compare the voice of Shilavati with the voice of the girl took her to his house, and with the assistance of one Iqbal Putlabai (accused 2) kidnapped her. Shilavati was traced in Bombay after four months in the house of one Babu Konde. Thereafter she was medically examined and it was found that she was pregnant.
3. To prove the case against the appellant the prosecution examined in all sixteen witnesses. Out of these four were eye-witnesses, viz., Prahled, Jamunabai, Narrdeo and Shilavati. Yamunabai, the mother of Shilavati, stated that on 12th December when she returned home in the evening she learnt from her sister-in-law Jamunabai and others that the appellant had taken Shilavati on the pretext that he wanted to compare her voice with that of one Prabha who was waiting in his house and thereafter Shilavati had not come back, that on getting this information she along with her brothers and sister-in-law went to the house of the appellant and questioned him as to why Shilavati was not sent back, where upon the appellant replied that he had sent her by bus. As Shilavati did not return home, she went to the police and lodged a complaint. Ananda, uncle of the girl, deposed to the same effect. Prahlad, brother of Shilavati, a boy of school-going-age, deposed that he saw Shilavati going with the appellant while he was playing outside the school. Namdeo, who is a bricklayer, stated that on the 12th December while he was returning after completing his work at about 3-30 p.m. he saw Shilavati going with the appellant. On medical examination it was found that Shilavati was a girl of 15 or 16 years of age and that she was pregnant. Shilavati was examined as P. W. 10 and she deposed that the accused came to her house at about 3-30 p.m. and told her that there was a singing party at Kirkee and that she should accompany him there, that she went with him on the promise that the appellant would send her back before her mother returned home, that while at the appellant s house she was asked to smell certain scents and she felt giddy and could not speak and when she came to senses in the morning she found herself in Bombay in a hut at Sion. She further said that on enquiry froth one Kassam she was told that the appellant had left her there.
4. On the 12th December at about 11-40 p.m. Yamunabai went to Padamji Gate police station and lodged a complaint there. In the complaint it was stated that Shilavati had quarrelled with one Shantabai and had left the house and since then she had not returned. The police were asked to find out her whereabouts. On the 13th she sent a complaint to the police inspector, A Division, Poona. Therein she made the allegation that the appellant used to come to her house for coaching Shilavati in harmonium, that she learnt trial he had sent a chit to her daughter in her absence and had called her to his house and that on enquiries about Shilavati s whereabouts he had given evasive answers. The police head-constable who was on duty, on receipt of this complaint examined Yamunabai. He read out the application to her and recorded her statement which reads
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