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. Sub-section (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 sub-section (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 sub-section (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
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.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 750 OF 2006
State of Rajasthan Appellant(s)
VERSUS
Firoz Khan @ Arif Khan Respondent(s)
Citation:AIR 2016SC 2389
Abhay Manohar Sapre, J.
1) This appeal is filed by the State of Rajasthan
against the final judgment and order dated 28.10.2005
passed by the High Court of Judicature for Rajasthan
at Jodhpur in D.B. Criminal Leave to Appeal No. 227
of 2005 whereby the Division Bench of the High Court
dismissed the 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”) against the judgment dated 13.08.2004
passed by the Sessions Judge, Jaisalmer in Sessions
Trial Case No. 48 of 2002.
2) 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.
3) The respondent (accused) was prosecuted and
tried for commission of an offence of murder of one
Liley Khan aged around 11 years under Section 302
of the Indian Penal Code, 1860 (hereinafter referred
to as “IPC”) pursuant to lodging of FIR No 44/2002
in Police Station Ramgarh, District Jaisalmer in
Sessions Trial Case No. 48 of 2002 in the Court of
District and Sessions Judge, Jaisalmer. The
prosecution adduced evidence in support of their
case.
4) By judgment dated 13.8.2004, the Session
Judge on appreciating the evidence adduced by the
prosecution acquitted the respondent of the charge
of murder by giving him benefit of doubt.
5) The State of Rajasthan, felt aggrieved of
respondent's acquittal, filed application for leave to
appeal before the High Court under Section 378 (3)
of the Code.
6) 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.
7) Notice of lodgment of petition of appeal was
served on the respondent but despite service of
notice, the respondent has not appeared.
8) Heard learned counsel for the State of
Rajasthan.
9) Learned counsel for the appellant-State 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.
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. Sub-section (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 sub-section (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 sub-section (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
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
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.
“Heard.
No case for grant of leave is made out.
Accordingly, the leave to appeal stands
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 non application
of mind to the case by the learned Judges because
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 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).
15) It is made clear that we have not applied our
mind to the merits of the case and remanded the
case 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.
16) Since the case is old, we request the High
Court to decide the matter within three months
from the date of receipt of this order. Since no one
appeared in this Court for the respondent despite
notice to him, the High Court will issue a fresh
notice of the application for grant of leave to the
respondent and then decide the application as
directed.
.……...................................J.
[ABHAY MANOHAR SAPRE]
………..................................J.
[ASHOK BHUSHAN]
New Delhi,
May 17, 2016.
Print Page
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. Sub-section (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 sub-section (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 sub-section (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
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.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 750 OF 2006
State of Rajasthan Appellant(s)
VERSUS
Firoz Khan @ Arif Khan Respondent(s)
Citation:AIR 2016SC 2389
Abhay Manohar Sapre, J.
1) This appeal is filed by the State of Rajasthan
against the final judgment and order dated 28.10.2005
passed by the High Court of Judicature for Rajasthan
at Jodhpur in D.B. Criminal Leave to Appeal No. 227
of 2005 whereby the Division Bench of the High Court
dismissed the 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”) against the judgment dated 13.08.2004
passed by the Sessions Judge, Jaisalmer in Sessions
Trial Case No. 48 of 2002.
2) 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.
3) The respondent (accused) was prosecuted and
tried for commission of an offence of murder of one
Liley Khan aged around 11 years under Section 302
of the Indian Penal Code, 1860 (hereinafter referred
to as “IPC”) pursuant to lodging of FIR No 44/2002
in Police Station Ramgarh, District Jaisalmer in
Sessions Trial Case No. 48 of 2002 in the Court of
District and Sessions Judge, Jaisalmer. The
prosecution adduced evidence in support of their
case.
4) By judgment dated 13.8.2004, the Session
Judge on appreciating the evidence adduced by the
prosecution acquitted the respondent of the charge
of murder by giving him benefit of doubt.
5) The State of Rajasthan, felt aggrieved of
respondent's acquittal, filed application for leave to
appeal before the High Court under Section 378 (3)
of the Code.
6) 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.
7) Notice of lodgment of petition of appeal was
served on the respondent but despite service of
notice, the respondent has not appeared.
8) Heard learned counsel for the State of
Rajasthan.
9) Learned counsel for the appellant-State 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.
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. Sub-section (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 sub-section (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 sub-section (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
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
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.
“Heard.
No case for grant of leave is made out.
Accordingly, the leave to appeal stands
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 non application
of mind to the case by the learned Judges because
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 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).
15) It is made clear that we have not applied our
mind to the merits of the case and remanded the
case 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.
16) Since the case is old, we request the High
Court to decide the matter within three months
from the date of receipt of this order. Since no one
appeared in this Court for the respondent despite
notice to him, the High Court will issue a fresh
notice of the application for grant of leave to the
respondent and then decide the application as
directed.
.……...................................J.
[ABHAY MANOHAR SAPRE]
………..................................J.
[ASHOK BHUSHAN]
New Delhi,
May 17, 2016.
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