Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9
PETITIONER:
STATE OF MADHYA PRADESH
Vs.
RESPONDENT:
DEWADAS & ORS.
DATE OF JUDGMENT29/01/1982
BENCH:
ACT:
Code of Criminal Procedure, 1973 S. 378 (3)-State
Government’s application for leave to appeal-Hearing and
disposal by Single Judge under r. 1 (q), Chapter 1, Part I
of M.P. High Court Rules-Whether legal?
HEADNOTE:
The Code of Criminal Procedure, 1973, provides inter
alia, by sub-s. (3) of s. 3.8 that no appeal against an
order of acquittal passed by a lower court shall be
entertained under sub-s. (1) or sub-s.(2) except with the
leave of the High Court.
A practice was prevalent in the Madhya Pradesh High
Court, requiring the State Government or the Central
Government, desirous of preferring an appeal under sub-s.
(1) or sub-s. (2) of s. 378 of the Code, to make an
application for leave under sub-s. (3) thereof, and it was
registered as a Miscellaneous Criminal Case and treated as a
petition and as such placed before a Single Judge for
hearing as per r. 1 (q), Chapter I, Part I, of the Madhya
Pradesh High Court Rules. It was only when the Single Judge
granted leave to appeal under sub-s. (3), that the petition
for leave was registered as a Criminal Appeal and placed
before a Division Bench for admission under sub-s. (1) of s.
384.
The State Government of Madhya Pradesh having decided
to prefer an appeal under sub-s. (1) of s. 378 filed an
application for leave to appeal under sub-s. (3) setting out
therein the grounds of appeal and the Single Judge who heard
it refused to grant the leave. The State Government made an
application for grant of certificate under Article 134 (1)
(c) of the Constitution. The application was heard by a
Division Bench. The contention was that there was inherent
lack of jurisdiction on the part of the Single Judge to hear
and decide an application for leave under sub-s. (3) of s.
378 of the Code, inasmuch as under r. 1 (q) (ii) of the
Madhya Pradesh High Court Rules, Chapter I, Part 1, the
matter had to be dealt with by a Bench of two Judges.
The High Court, following its earlier decision in State
of Madhya Pradesh v. Narendrasingh, (1974) MPLJ (N) 102,
rejected the contention, holding that the State had to
obtain ’leave’ of the High Court under sub-s. (3) of s. 378,
before an appeal against acquittal was preferred under sub-
s. (1) thereof and therefore the learned Single Judge had
jurisdiction to deal with tho application for leave under
sub-s. (3).
82
In appeal to this Court the State Government contended
that the making of an application for leave under sub-s. (3)
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9
of s. 378 is tantamount to filing an appeal under sub-s. (1)
thereof, that the High Court could grant leave and entertain
the appeal at one and the same time inasmuch as an
application under sub-s. (3) would be transmuted into an
appeal under sub-s. (1) when leave is granted under sub-s..
(3) and, therefore, the application for leave under sub-s.
(3) must have been laid before a Bench of two Judges under
r. 1 (q) (ii) of the High Court Rules.
Allowing the appeal,
^
HELD: 1. An application for ’leave’ to appeal under
sub-s. (3) of s. 378 without which no appeal under sub-s.
(I) or sub-s. (2) thereof can be entertained, being an
integral part of the appeal, must be laid before a Bench of
two Judges of the High Court under r. 1 (q) (ii), Chapter I,
Part I of the Madhya Pradesh High Court Rules (as it stood
before the amendment) and could not be heard and disposed of
by a Single Judge of the High Court under r. 1 (q) of the
Rules, as it stood prior to its amendment. [92 E-F; 83 D]
2. Sub-s. (3) of s. 378 was introduced by Parliament to
create a statutory restriction against entertainment of an
appeal filed by the State Government or the Central
Government under sub-s. (1) or sub-s. (2) thereof from an
order of acquittal passed in a case instituted otherwise
than upon a complaint. T here is a difference in the
procedure regulating entertainment of State appeals under
sub-s. (1) or sub-s. (2) of s. 378 and appeals against
acquittals filed by a complainant under sub-s. (4) of s.
378. On a comparison of the language employed in sub-s. (3)
and sub-s. (4) of s. 378, it is clear that in the case of an
appeal by the State Government or the Central Government
under sub-s. (1) or sub-s. (2), the Code does not
contemplate the making of. an application for leave under
sub-s. (3) while making of an application under sub-s. (4)
is a condition precedent for the grant of special leave to a
complainant under sub-s. (4). The difference in language
used in sub-s. (3) and sub-s. (4) of s. 378 manifests the
legislative intent to preserve a distinction between the two
classes of appeals by prescribing two different procedures
in the matter of entertainment of appeals against
acquittals. While a period Of limitation has been prescribed
in sub-s. (5) of s. 378 for an application of the
complainant under sub-s. (4), there is no period of
limitation prescribed for an application for grant of Leave
to appeal under sub-s. (3), obviously because the Code does
not contemplate the making of an application for leave under
sub-s. (3) of s. 378. It, therefore, follows that the State
Government or the Central Government may, while preferring
an appeal under sub-s. (1) or sub-s. (2) of s. 378
incorporate a prayer in the memorandum of appeal for grant
of leave under sub-s. (3) thereof, or make a separate
application for grant of leave under sub-s. (3) of s. 378,
but the making of such an application is not a condition
precedent for a State appeal. [90 F-H; 91 A-C; 88 G-H; 91 C-
D]
State of Madhya Pradesh v. Narendra Singh, [1974] MPLJ
(N) 102 over-ruled.
State of Rajasthan v. Ramdeen & ors. [1977] 3 S.C.R.
139 relied on.
83
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 278 of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9
1975.
Appeal by special leave from the judgment and order
dated the 16th October, 1974 of the Madhya Pradesh High
Court in Misc. Criminal Case No. 786 of 1974.
Gopal Subramaniam for the Appellant.
P.D. Sharma, for the Respondent.
The Judgment of the Court was delivered by:
SEN, J. The short question involved in this appeal by
special leave from the judgment and order of the Madhya
Pradesh High Court is, whether an application for ’leave’ to
appeal under sub-s. (3) of s. 378 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as ’the Code’),
without which no appeal under sub-s. (1) or sub-s. (2)
thereof can be entertained, being an integral part of the
appeal must be laid before a Bench of two Judges of the High
Court, under r. 1 (q) (ii), Chap. I, Part I, of the Madhya
Pradesh High Court Rules, or can be heard and disposed of by
a Single Judge of the High Court under r. 1 (q) of the
Rules.
The material facts giving rise to the appeal are these.
The State Government of Madhya Pradesh having decided to
prefer an appeal under sub-s. (1) of s. 378 of the Code,
filed an application for ’leave’ to appeal under sub-s. (3)
thereof, setting out therein the grounds of appeal.
According to the practice prevalent in the Madhya Pradesh
High Court, the application was listed before a Single
Judge, as per rule 1 (q), Chapter I, Part I of the Madhya
Pradesh. High Court Rules, The learned Single Judge refused
to grant leave to appeal under sub-s. (3) of s. 378 on the
ground that the judgment of acquittal was based on
appreciation of evidence and was not perverse or
unreasonable. The State Government applied for grant of a
certificate under Art. 134 (1) (c) of the Constitution. The
application for grant of a certificate was placed before and
heard by a Division Bench. The contention on behalf of the
State Government was that an application for grant of leave
under sub-s. (3) of s. 378 of the Code must be treated as a
part of the appeal preferred by the State Government under
sub-s. (1) thereof, and
84
therefore, should have been placed before a Bench of two
Judges and consequently the order of the learned Single
Judge rejecting the application for grant of leave under
sub-s. (3) of s. 378 of the Code was a nullity. The Division
Bench, following the decision of another Division Bench in
the State of Madhya Pradesh v. Narendrasingh, rejected the
contention of the State that the learned Single Judge had no
jurisdiction to entertain or decide the application for
leave to appeal under sub-s. (3) of s. 378 of the Code. It
however, noticed the incongruity of the requirement that an
appeal under sub-s. (1) or sub-s. (2) of s. 378 should be
placed before a Bench of two Judges under r. 1 (q) (ii) of
the Madhya Pradesh High Court Rules and the hearing and
disposal of an application for leave under sub-s (3) thereof
should be by a Single Judge, and observed:
"The matter is being examined by the rule making
Committee. It is rather anomalous that under rule 1 (q)
item (ii) of Chapter I of the Madhya Pradesh High Court
Rules, an appeal against acquittal filed by the State
Government has to be heard by a Division Bench, still
the application for leave under section 378 (3) of the
Code should be laid before a Single Judge."
As the case involved an important question relating to
procedure and practice, and as the correctness of the
decision of the High Court in Narendrasingh’s case was open
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9
to question, special leave was granted by this Court.
It appears that a practice was prevalent in the Madhya
Pradesh High Court, requiring the State Government or the
Central Government, desirous of preferring an appeal under
sub-s. (1) or sub-s. (2) of s. 378 of the Code, to make an
application for leave under sub-s. (3) thereof, and it was
registered as a Miscellaneous Criminal Case and treated as a
petition and as such placed before a Single Judge for
hearing as per r. 1 (q), Chap. I, Part 1, of the Madhya
Pradesh High Court Rules. It was only when the Single Judge
granted leave to appeal under sub-s. (3), that the petition
for Leave was registered as a Criminal Appeal and placed
before a Division Bench for admission under sub-s. (1) of s.
384 of the Code.
85
The contention that there was inherent lack of
jurisdiction on the part of a Single Judge to hear and
decide an application for leave under sub-s. (3) of s. 378
of the Code and, therefore, the proceedings were null and
void is based on the provisions contained in r. 1 (q)(ii),
Chap. I, Part I, of the Madhya Pradesh High Court Rules,
which read as follows:
"l. The following matters shall ordinarily be
heard and disposed of by a Judge sitting alone:
xx xx xx xx
(q) An appeal, petition or reference under the
Code of Criminal Procedure, other than;
xx xx xx xx
(ii) an appeal by the Provincial Government under
section 417 of the Code from an order of acquittal."
The heading of Chap. I in which the rule finds place is
"Jurisdiction of a Single Judge and of Benches of the
Court." It is urged that any breach of the rule would render
the judgment a nullity. Rule 4 of the said Rules provides
that ’Save as provided by law or by rules or by special
orders of the Chief Justice, all matters shall be heard and
disposed of by a Bench of two Judges’. By reason of s. 8 (2)
of the General Clauses Act, 1897, reference to an appeal
against acquittal under s. 417 (1) of the Code of Criminal
Procedure, 1898 (hereinafter referred to as ’the old Code’)
by the Provincial Government has to be read as an appeal
against acquittal by the State Government under sub-s. (1)
of s. 378.
It is contended on behalf of the State Government that
the making of an application for leave under sub-s. (3) of s
378 of the Code is tantamount to filing an appeal under sub-
s. (1) thereof, and the High Court can grant leave and
entertain the appeal at one and the same time, inasmuch as
such an application by the State Government under sub-s. (3)
is transmuted into an appeal against acquittal under sub-s.
(1) of s. 378, when leave is granted under sub-s. (3) and,
therefore, the application for leave under sub s. (3) had to
be heard by a Bench of two Judges. It is urged that a com-
86
parison of the language employed in sub-ss. (3) and (4) of
s. 378 would make it clear that the Parliament never
intended, in the case of an acquittal, that the State
Government should first make an application for leave under
sub-(3) of s. 378, and then, if leave is granted, present an
appeal under sub-s. (1) of s. 378. It is further urged that
the jurisdiction of a Single Judge is limited by the words
’other than’ in r. 1 (q) of the Madhya Pradesh High Court
Rules, and an appeal preferred by the State Government under
sub-s. (1) of s. 37.8 of the Code could be heard and decided
only by a Bench of two Judges as required by r. 1 (q) (ii)
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9
of the Rules.
The submission advanced on behalf of the respondents,
on the other hand, is that the introduction of the new
provision in sub-s. (3) of s. 378 and the use of the words
’leave of the High Court’ and the word ’entertained’ clearly
indicates the legislative intent to prescribe for two
different stages: (1) the making of an application for leave
under sub-s. (3) of s. 378, and (2) then, if leave is
granted, presenting the petition of appeal under s. 382 of
the Code. It is urged that the State Government must obtain
’leave’ of the High Court under sub-s. (3) of s. 3.78,
before an appeal against acquittal is preferred under sub-s.
(1) thereof, as in the case of a private complainant under
sub-s. (4) of s. 378, and the difference in language in sub-
s. (3) and sub-s. (4) is of little consequence.
In Narendrasingh’s case, the State Government being.
desirous of preferring an appeal against acquittal under
sub-s. (1) of s. 378, made an application for grant of leave
under sub-s. (3) and the proposed memorandum of appeal was
annexed thereto. An application was filed on behalf of the
State Government stating that the prayer for grant of leave
under sub-s. (3) be treated as a part of the appeal itself
and not separately. It was further prayed that the case,
which had originally been registered as a Miscellaneous
Criminal Case relating to the grant of leave, should be
registered as a ’Criminal Appeal’. The matter was,
therefore, placed before a Division Bench. The learned
Judges of the High Court referred to the report of the Law
Commission and observed that the legislative object in re-
enacting the provisions of s. 417 of the old Code with the
addition of the new provision contained in sub-s. (3)
87
of s. 378 of the Code, was that there had to be a further
scrutiny of a State appeal by the Court even prior to the
stage of admission, requiring the Court to consider at the
very outset whether the appeal should be entertained or not.
It was only after the appeal was entertained with the
’leave’ of the Court that it had to be heard for admission
and it may be dismissed summarily without notice to the
other side. It was further observed that the legislature
brought about the change while accepting the recommendation
of the Law Commission to retain the power of the High Court
to dismiss State appeals summarily without notice to the
respondents.
In substance, the decision in Narendrasingh’s case, as
expressed in the words of the learned Judges, may be thus
stated:
"(A) the very outset on an appeal against
acquittal being lodged by the State, the High Court is
to consider whether leave should be granted or not. It
is only when leave is granted under section 378(3) that
the appeal is entertained. On the appeal being so
entertained as a con sequence of the grant of leave, it
is to be listed for admission and in case it is not
dismissed summarily under section 384 (1) notice is to
be issued to the accused under section 385 (1) (iv).
xx xx xx xx
The appeal being entertained only on the grant of
leave under sec. 378 (3), the matter relating to grant
of leave has to be ordinarily heard and disposed of by
a Single Bench of this Court according to Rules. The
appeal itself being entertained only when leave is
granted, there is, in fact, no appeal as such till the
leave is granted, even though it may have been lodged
while praying for leave. The matter has, therefore, to
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9
be initially registered only as a ’Miscellaneous
Criminal Case’ and it is only when the leave is granted
resulting in the appeal being entertained that it can
be registered as a criminal appeal. Thereafter it has
to be listed before the Division Bench for admission."
In making these observations the learned Judges appear
to have been swayed by a practice which was prevalent in
their Court.
88
The jurisdiction of the Court in these matters is, however,
statutory and the Court is not entitled to go outside the
provisions of a statute but must interpret them as they are.
The answer to the question involved must turn on a
proper construction of sub-s. (3) of s. 378 of the Code.
Section 378 of the Code corresponds to s. 417 of the old
Code, as amended in 1955. Sub-s. (1) of s. 378 of the Code
is in terms the same as sub-s. (1) of s. 417 of the old Code
and it provides that ’Save as otherwise provided in sub-s.
(2) and subject to the provisions of sub-ss. (3) and (5),
the State Government may, in any case, direct the Public
Prosecutor to present an appeal to the High Court from an
original or appellate order of acquittal passed by a court
other than a High Court’. Sub-s. (2) of s. 378 corresponds
to sub-s. (2) of s. 417 and confers the right of appeal on
the Central Government in certain class of cases subject to
the provisions of sub-s. (3) from such an order of
acquittal. Sub s. (3) of s. 378 is a new provision inserted
to implement the recommendation of the Law Commission made
in its 48th Report on Appeals against Acquittals, and
provides that:
"3. No appeal under sub-s. (1) or sub-s. (2) shall
be entertained except with the leave of the High
Court."
Sub-s. (4) and sub-s. (5) deal with an order of
acquittal passed in any case instituted upon a complaint.
Sub-s. (4) provides that if an order of acquittal is passed
in such a case, and the High Court on an application made to
it by the complainant in that behalf, grants ’special leave’
to appeal from the order of acquittal, the complainant may
present such an appeal to the High Court. Sub-s. (5)
provides for two distinct periods of limitation. No
application under sub-s. (4) for grant of special leave to
appeal from an order of acquittal in a complaint case shall
be entertained by the High Court at the expiry of six months
where the complainant is a public servant and sixty days in
other cases computed from the date of the order of
acquittal. There is no period of limitation prescribed for
presenting an application for grant of leave to appeal under
sub-s. (3) of s. 378 from an order of acquittal passed in a
case instituted otherwise than upon a complaint, obviously
because the Code does not contemplate the making of an
application for leave under sub-s. (3) of s. 378 of the
Code. Thus, the period of limita-
89
tion in such a case, is for an appeal from an order of
acquittal Under sub-s. (1) or sub-s. (2) of s. 378 of the
Code, as prescribed by Art. 114 of the Limitation Act, 1963.
The period of limitation prescribed therefor is sixty days
from the date of the order appealed from.
Under the scheme of the Code, the State Government or
the Central Government may prefer an appeal under sub-s. (1)
or sub-s. (2) of s. 378 of the Code, but such appeal shall
not be entertained unless the High Court grants ’leave’
under sub-s. (3) thereof. The words ’No appeal under sub-s.
(1) or sub-s. (2) shall be entertained’ used in sub-s. (3)
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9
of s. 378 create a qualified bar to the entertainment of an
appeal filed by the State Government or the Central
Government under sub-s. (1) or sub-s. (2) from an order of
acquittal passed in a case instituted otherwise than upon a
complaint. The Code, by enacting sub-s. (3) of s. 378,
therefore, brought about a change in that there is no longer
an unrestricted right of appeal against the orders of
acquittal passed in such cases. The making of an application
for grant of leave to appeal by the State Government or the
Central Government under sub-s. (3) of s. 378 is, however,
not a condition precedent to the entertainment of such an
appeal. The prayer for grant of leave under sub-s. (3) may,
as it should, be contained in the petition of appeal filed
under s. 382 of the Code.
There is no warrant for the view expressed by the High
Court in Narendrasingh’s case that the legislative object in
re-enacting the provisions of s. 417 of the old Code with
the addition of the new provision contained in sub-s. (3) of
s. 378 of the Code, was that there was to be a preliminary
scrutiny of a State appeal by the Court even prior to the
stage of admission, requiring the Court to consider at the
very outset whether the appeal should be entertained or not,
and that it was only after the appeal was entertained with
the leave of the Court that it was to be heard for admission
under sub-s. (1) of s. 384 read with sub-s. (1) of s. 385 of
the Code. The High Court appears to rest its decision more
on the Report of the Law Commission than the actual language
of sub-s. (3) of s. 378 of the Code, in coming to the
conclusion that sub-s. (3) contemplated two stages. Sub-s.
(3) of s. 378 is not susceptible of any such construction.
The Law Commission in its 48th Report had observed.
90
"While one may grant that cases of unmerited
acquittals do arise in practice, there must be some
limit as to the nature of cases in which the right
should be available."
And, keeping in view the general rule in most common law
countries not to allow an unrestricted right of appeal
against acquittals, it recommended:
"With these considerations in view, we recommend
that appeals against acquittals under s. 417, even at
the instance ’ of the Central Government or the State
Government, should be allowed only if the High Court
grants special leave.
It may be pointed out that even now the High Court
can summarily dismiss an appeal against an acquittal,
or for that matter, any criminal appeal. (Section 422,
Criminal P.C.).
Therefore, the amendment which we are recommending
will not be so radical a departure as may appear at the
first sight. It will place the State and the private
complainant on equal footing. Besides this, we ought to
add that under s. 422 of the Code, it is at present
competent to the appellate Court to dismiss the appeal
both of the State and of the complainant against
acquittal at the preliminary hearing."
The recommendations of the Law Commission were not, however,
fully carried into effect. Sub-s. (3) of s. 378 of the Code
was introduced by Parliament to create a statutory
restriction against entertainment of an appeal filed by the
State Government or the Central Government under sub-s. (1)
or sub-s. (2) of s. 378 from an order of acquittal passed in
a case instituted otherwise than upon complaint. At the same
time, Parliament re-enacted sub-ss. (3) and (4) of s. 417 as
sub-ss. (4) and (5) of s. 378, which deal with an order of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9
acquittal passed in any case instituted upon a complaint.
The result of this has been that there is a difference in
the procedure regulating entertainment of State appeals
against acquittals under sub-s. (1) or sub-s. (2) of s. 378
and appeals against acquittals filed by a complainant under
sub-s. (5) of s. 378. On a comparison of the language
employed in sub-s. (3) and sub-s. (4) of s. 378, it is clear
that the legislature has chosen to treat State appeals in a
manner different
91
from appeals by a complainant in the matter of preferring
appeals against acquittals. In the case of an appeal from an
order of acquittal passed in a case instituted otherwise
than upon complaint preferred by the State Government or the
Central Government under sub-s. (1) or sub-s. (2) of s 378,
the Code does not contemplate the making of an application
for leave under sub-s. (3) thereof, while the making of an
application under sub-s. (4) of s. 378 is a condition
precedent for the grant of ’special leave’ to a complainant
under sub-s. (5), The difference in language used in sub-s.
(3) and sub-s. (4) of s. 378 manifests the legislative
intent to preserve a distinction between the two classes of
appeals by prescribing two different procedures in the
matter of entertainment of appeals against acquittals. It,
therefore, follows that the State Government or the Central
Government may, while preferring an appeal against acquittal
under sub-s. (1) or sub-s. (2) of s. 378, incorporate a
prayer in the memorandum of appeal for grant of leave under
sub-s. (3) thereof, or. make a separate application for
grant of leave under sub-s. (3) of s. 378, but the making of
such an application is not a condition precedent for a State
appeal.
In the State of Rajasthan v. Ramdeen & Ors., this Court
dealt with a case where the Rajasthan High Court granted the
State Government leave to appeal under sub-s. (3) of s. 378
of the Code, but dismissed the appeal filed thereafter on
the ground that it had not been filed within ninety days
from the judgment appealed from and was therefore barred by
limitation under Art. 114 of the Limitation Act, 1963. The
application for grant of leave under sub-s. (3) contained
all the requisites of a memorandum of appeal and had been
filed within ninety days from the date of order of acquittal
but was not accompanied by a petition of appeal. It was held
that an appeal under sub-s. (1) of s. 378 was an integral
part of an application for leave to appeal under sub-s (3):
Accordingly, the order passed by the High Court dismissing
the appeal as barred by limitation was set aside. In dealing
with the question, it was observed:
"Under the law it will be perfectly in order if a
composite application is made giving the necessary
facts and circumstances of the case along with the
grounds which may be urged in the appeal with a prayer
for leave to enter-
92
tain the appeal. It is not necessary, as a matter of
law, that an application for leave to entertain the
appeal should be lodged first and only after grant of
leave by the High Court an appeal may be preferred
against the order of acquittal. If such a procedure is
adopted, as above, it is likely, as it has happened in
this case, the appeal may be time-barred if the High
Court takes more than ninety days for disposal of the
application for leave. The possibility that the High
Court may always in such cases condone the delay on
application filed before it does not, in law, solve the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9
legal issue. The right conferred by section 378 (1),
Cr. P.C., upon the State to prefer an appeal against
acquittal will be jeopardised if such a procedure is
adopted, for in certain cases it may so happen that the
High Court may refuse to exercise its discretion to
condone the delay. The right conferred under the
section cannot be put in peril by an interpretation of
section 378 Cr. P.C., which is likely to affect
adversely or even perhaps to destroy that right."
The view expressed by the High Court in Narendrasingh’s case
being in conflict with the decision of this Court in
Ramdeen’s case must be overruled.
It must accordingly be held that the learned Single
Judge had no competence to entertain, hear or dispose of the
question of grant of leave under sub-s. (3) of s. 378, as it
had virtually entailed dismissal of the appeal preferred by
the State Government under sub-s. (1) thereof. The matter
should have been dealt with by a Bench of two Judges in
terms of r. 1 (q) (ii), Chap. 1, Part I, of the Madhya
Pradesh High Court Rules.
The question at issue has now become academic. As
already stated, the High Court while refusing the grant of
certificate of fitness, had adverted to the fact that the
matter was being examined by the Rule-Making Committee. It
has since amended r. 1 (q) and made a distinction between
appeals from orders of acquittals under sub-s. (1) of s. 378
in respect of: (1) offences punishable with sentence of
death or imprisonment for life and triable by Court of
Sessions, and (2) other offences. All appeals falling under
category (1), together with applications for leave under
sub-s. (3) of s. 378, have to be heard by a Bench of two
Judges, and other appeals falling under category (2),
together with applications for leave under sub-s, (3) of s.
378, are to be heard by a Single Judge.
93
In the result, the appeal must succeed and is allowed.
The order passed by the High Court, dismissing the
application for leave under sub-s. (3) of s. 378 of the Code
of Criminal Procedure, 1973, filed by the State Government
of Madhya Pradesh, is set aside, and it is directed that the
application shall be dealt with by a Bench of two Judges as
required by r. 1 (q) (ii), Chap. I, Part I, of the Madhya
Pradesh High Court Rules, prior to its amendment.
H.L.C. Appeal allowed.
94