Dwivedi, J. - (1.) The appellant was convicted by the Additional Chief Presidency Magistrate, Bombay, under S. 122 (a) and S. 125 (1) read with S. 37(1) (a) of the Bombay Police Act and was sentenced to three months imprisonment under the first count. No separate sentence was passed on the second count. He filed an appeal against his conviction and sentence in the High Court of Bombay. The appeal was summarily dismissed by a monomial order "dismissed".
(2.) The main argument of counsel for the appellant is that, as the order of the Bombay High Court does not state any reasons, it should be set aside. In support of his argument he has relied on Govinda Kadtuji Kadam v. State of Maharashtra, AIR 1970 SC 1033 and Challapa Ramaswami v. State of Maharashtra, AIR 1971 SC 64. In Govind Kadtuji Kadam (supra) five persons were convicted and sentenced to rigorous imprisonment for six months and to a fine of Rs.50/-. All of them filed a joint appeal in the Bombay High Court. The appeal was admitted only on behalf of one of them named Kondu; it was dismissed summarily in respect of the remaining four appellants. They filed an appeal in this Court. Their appeal was allowed and the order of the Bombay High Court was set aside and the case was sent back to the High Court for hearing their appeal on merits after notice to the State. The defence of Kondu was that Vithalrao, the injured person, had sustained the injury by falling on a stone while chasing him (Kondu) and his other companions. Evidently, if his defence was upheld by the Bombay High Court in his appeal, the case against the remaining four appellants would require serious consideration. We think that this consideration persuaded the Court to pass the aforesaid order. The facts of the case before us are entirely distinguishable, as we shall presently point out. Two observations of the Court are instructive. The Court said: "An order summarily dismissing an appeal by the word "rejected" as in the case before us, though not violative of any statutory provision, removes nearly every opportunity for detection of errors in the order. In our opinion, therefore, when an appeal in the High Court raises 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 Court also said: "We would perhaps have persuaded ourselves to go into the merits 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 merits."
(3.) In Challappa Ramaswami, (supra) the appellant was convicted of the offence under S. 302, Indian Penal Code and sentenced to life imprisonment by the Court of Session. The appeal was dismissed summarily by one word order "dismissed". This Court set aside the order and remanded the case of the appellant for hearing on merits. It appears from the decision that the Sessions Judge had relied on two eye-witnesses. One of them was the uncle of the deceased. It also appears that in the dying declaration of the deceased made to his uncle, the name of the appellant as his assailant was not mentioned. This Court therefore, said: "In a case like this...... in our opinion, it was incumbent on the High Court to issue notice to the State and hear the appellant with the record before it and after evaluating the evidence to record a speaking order so that this Court could also have before it the reasoning of the High Court for upholding the appellant's conviction." On account of certain special features of the evidence in that case, pointed out by this Court, the order of the Bombay High Court was set aside. The facts of the case are again distinguishable from the facts of the present case.;