Full Judgment Text
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1094 OF 2018
(Arising out of S.L.P.(Criminal) No.5528 of 2015)
State of Uttar Pradesh Appellant(s)
VERSUS
Anil Kumar @ Badka & Ors. Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) Leave granted.
2) This appeal is filed by the State of U.P. against
the final judgment and order dated 02.09.2014 passed
by the High Court of Judicature at Allahabad in
Government Appeal No.3317 of 2014 whereby the
Signature Not Verified
Division Bench of the High Court dismissed the
Digitally signed by
ANITA MALHOTRA
Date: 2018.08.29
13:38:38 IST
Reason:
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application filed by the appellant herein seeking leave
to file appeal under Section 378(3) of the Criminal
Procedure Code, 1973 (hereinafter referred to as “the
Code”) and affirmed the judgment dated 31.05.2014
passed by the Additional Sessions Judge, Court No.3,
Kannauj acquitting the accusedrespondents in S.T.
No.204 of 2012.
3) Keeping in view the short point involved in the
appeal, it is not necessary to state the facts in detail
except few to appreciate the grievance of the
appellant.
4) The respondents (accused) were prosecuted
and tried for commission of offences punishable
under Sections 363, 366, 376 and 120B of the
Indian Penal Code, 1860 (hereinafter referred to as
“IPC”) pursuant to lodging of FIR No. 139/2012 in
Police Station Gursahay Ganj, subDistrict Sadar,
District Kannauj in Sessions Trial Case No. 204 of
2012 in the Court of the Additional District Judge,
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Court No.3, Kannauj. The prosecution adduced
evidence in support of their case.
5) By judgment dated 31.05.2014, the Additional
Sessions Judge on appreciating the evidence
adduced by the prosecution acquitted the
respondents (accused) of the charge of offences
punishable under Sections 363, 366, 376, 120B
IPC.
6) The State of U.P., felt aggrieved by the
respondents' acquittal, filed an application for leave
to appeal before the High Court under Section 378
(3) of the Code.
7) By impugned order, the High Court declined to
grant leave and accordingly rejected the application
made by the State. It is against this order, the State
has filed this appeal by way of special leave petition
in this Court.
8) Heard learned counsel for the parties.
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9) Learned counsel for the appellantState has
made only one submission. According to him, the
High Court while dismissing the application for
leave to appeal did not assign any reason and hence
the impugned order is rendered bad in law. It was
his submission that there were several
discrepancies and errors in the judgment of the
Sessions Judge against which the leave to appeal
was sought and, therefore, this was a fit case where
the High Court should have granted leave to appeal
for further probing into the case by the Appellate
Court. In support of his submission, he placed
reliance on the decision of this Court in State of
Maharashtra vs. Sujay Mangesh Poyarekar,
(2008) 9 SCC 475.
10) We are inclined to agree in part with the
submission urged by the learned counsel for the
appellant.
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11) The question as to how the application for
grant of leave to appeal made under Section 378 (3)
of the Code should be decided by the High Court
and what are the parameters which the High Court
should keep in mind remains no more res integra .
This issue was examined by this Court in State of
Maharashtra vs. Sujay Mangesh Poyarekar
(supra). Justice C.K. Thakker speaking for the
Bench held in paras 19, 20, 21 and 24 as under:
“19. Now, Section 378 of the Code provides
for filing of appeal by the State in case of
acquittal. Subsection (3) declares that no
appeal “shall be entertained except with the
leave of the High Court”. It is, therefore,
necessary for the State where it is aggrieved
by an order of acquittal recorded by a Court
of Session to file an application for leave to
appeal as required by subsection (3) of
Section 378 of the Code. It is also true that
an appeal can be registered and heard on
merits by the High Court only after the High
Court grants leave by allowing the
application filed under subsection (3) of
Section 378 of the Code.
20. In our opinion, however, in deciding the
question whether requisite leave should or
should not be granted, the High Court must
apply its mind, consider whether a
prima
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facie case has been made out or arguable
points have been raised and not whether the
order of acquittal would or would not be set
aside.
21. It cannot be laid down as an abstract
proposition of law of universal application
that each and every petition seeking leave to
prefer an appeal against an order of acquittal
recorded by a trial court must be allowed by
the appellate court and every appeal must be
admitted and decided on merits. But it also
cannot be overlooked that at that stage, the
court would not enter into minute details of
the prosecution evidence and refuse leave
observing that the judgment of acquittal
recorded by the trial court could not be said
to be “perverse” and, hence, no leave should
be granted.
24. We may hasten to clarify that we may not
be understood to have laid down an inviolable
rule that no leave should be refused by the
appellate court against an order of acquittal
recorded by the trial court. We only state
that in such cases, the appellate court must
consider the relevant material, sworn
testimonies of prosecution witnesses and
record reasons why leave sought by the State
should not be granted and the order of
acquittal recorded by the trial court should
not be disturbed. Where there is application
of mind by the appellate court and reasons
(may be in brief) in support of such view are
recorded, the order of the court may not be
said to be illegal or objectionable. At the
same time, however, if arguable points have
been raised, if the material on record
discloses deeper scrutiny and reappreciation,
review or reconsideration of evidence, the
appellate court must grant leave as sought
and decide the appeal on merits. In the case
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on hand, the High Court, with respect, did
neither. In the opinion of the High Court, the
case did not require grant of leave. But it also
failed to record reasons for refusal of such
leave.”
12) Coming now to the facts of this case, it is
apposite to reproduce the impugned order in
verbatim infra:
“On a careful perusal of the judgment and
record, it cannot be said that the view taken
by the trial judge is perverse or unreasonable.
Simply because another view might have
been taken of the evidence provides no
ground for interfering with the order of
acquittal unless the view taken by the trial
judge is not a possible view. On the evidence
available on record, it cannot be said that the
view taken by the trial judge was not a
reasonably possible view.
In this view of the matter, there is no
merit in the application for leave to appeal
which is rejected and consequently, the
Government Appeal is also dismissed.”
13) We are constrained to observe that the High
Court grossly erred in passing the impugned order
without assigning any reason. In our considered
opinion, it was a clear case of total nonapplication
of mind to the case by the learned Judges because
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the order impugned neither sets out the facts nor
the submissions of the parties nor the findings and
nor the reasons as to why the leave to file appeal is
declined to the appellant. We, therefore, disapprove
the casual approach of the High Court in deciding
the application which, in our view, is against the
law laid down by this Court in the case of State of
Maharashtra vs. Sujay Mangesh Poyarekar
(supra).
14) In the light of the foregoing discussion, the
impugned order deserves to be set aside. The appeal
thus succeeds and is accordingly allowed and the
impugned order is set aside. The case is remanded
to the High Court for deciding the application made
by the appellant for grant of leave to appeal afresh
on merits in accordance with law keeping in view
the law laid down by this Court in
State of
Maharashtra vs. Sujay Mangesh Poyarekar
(supra).
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15) It is made clear that we have not applied our
mind to the merits of the case and remanded the
case to the High Court having noticed that it was an
unreasoned order. The High Court will accordingly
decide the application on merits uninfluenced by
any of our observations made in this order.
.……...................................J.
[ABHAY MANOHAR SAPRE]
………..................................J.
[UDAY UMESH LALIT]
New Delhi,
August 29, 2018.
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