STATE OF UTTAR PRADESH versus ANIL KUMAR @ BADKA & ORS.

[2018] 10 S.C.R. 726

[2018] 10 S.C.R.

STATE OF UTTAR PRADESH

ANIL KUMAR @ BADKA & ORS.

(Criminal Appeal No. 1094 of 2018)

AUGUST 29, 2018

[ABHAY MANOHAR SAPRE ANDUDAY UMESH LALIT, JJ.]

Code of Criminal Procedure, 1973: s.378(3) – Applicationseeking leave to file appeal – Parameters which the High CourtCshould keep in mind for deciding the application, discussed – Inthe instant case, the trial court and the appellate court orderedacquittal of the respondent – State filed application seeking leaveto file appeal challenging the acquittal – High Court declined togrant leave and rejected the application – State’s appeal – Held:DHigh Court in its order neither set out the facts nor the submissionof the parties nor the findings nor the reason as to why the leave tofile appeal was declined to the appellant – Thus, it was clear caseof non-application of mind to the case by the High Court – Impugnedorder set aside and matter remitted to High Court for deciding theapplication for grant of leave to appeal afresh on merits inEaccordance with law keeping in view the law laid down in SujayMangesh case – Penal Code, 1860 – ss.363, 366, 376, and 120B.

State of Maharashtra v. Sujay Mangesh Poyarekar(2008) 9 SCC 475 : [2008] 13 SCR 750 – relied on.

FCase Law Reference

[2008] 13 SCR 750 relied on

Para 9

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1094 of 2018.

GFrom the Judgment and Order dated 02.09.2014 of the High Courtof Judicature at Allahabad in Government Appeal No. 3317 of 2014.

Garvesh Kabra, Vikash Chaudhary, Ms. Mona K. Rajwanshi,B. P. Gupta, Ram Naresh, Mukesh Kumar Singh, Saurabh Chopra,Shekhar Kumar, Advs. for the appearing parties.

The Judgment of the Court was delivered by

ABHAY MANOHAR SAPRE, J. 1. Leave granted.

2. This appeal is filed by the State of U.P. against the final judgmentand order dated 02.09.2014 passed by the High Court of Judicature atAllahabad in Government Appeal No.3317 of 2014 whereby the DivisionBench of the High Court dismissed the application filed by the appellantherein seeking leave to file appeal under Section 378(3) of the CriminalProcedure Code, 1973 (hereinafter referred to as “the Code”) andaffirmed the judgment dated 31.05.2014 passed by the Additional SessionsJudge, Court No.3, Kannauj acquitting the accused-respondents in S.T.No.204 of 2012.

3. Keeping in view the short point involved in the appeal, it is notnecessary to state the facts in detail except few to appreciate thegrievance of the appellant.

4. The respondents (accused) were prosecuted and tried forcommission of offences punishable under Sections 363, 366, 376 and120-B of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”)pursuant to lodging of FIR No. 139/2012 in Police Station GursahayGanj, sub-District Sadar, District Kannauj in Sessions Trial Case No.204 of 2012 in the Court of the Additional District Judge, Court No.3,Kannauj. The prosecution adduced evidence in support of their case.

5. By judgment dated 31.05.2014, the Additional Sessions Judgeon appreciating the evidence adduced by the prosecution acquitted therespondents (accused) of the charge of offences punishable underSections 363, 366, 376, 120-B IPC.

6. The State of U.P., felt aggrieved by the respondents’ acquittal,filed an application for leave to appeal before the High Court underSection 378 (3) of the Code.

7. By impugned order, the High Court declined to grant leave andaccordingly rejected the application made by the State. It is against thisorder, the State has filed this appeal by way of special leave petition inthis Court.

8. Heard learned counsel for the parties.

9. Learned counsel for the appellant-State has made only onesubmission. According to him, the High Court while dismissing the

Aapplication for leave to appeal did not assign any reason and hence theimpugned order is rendered bad in law. It was his submission that therewere several discrepancies and errors in the judgment of the SessionsJudge against which the leave to appeal was sought and, therefore, thiswas fit case where the High Court should have granted leave to appealfor further probing into the case by the Appellate Court. In support of hisBsubmission, he placed reliance on the decision of this Court in State ofMaharashtra vs. Sujay Mangesh Poyarekar, (2008) 9 SCC 475.

10. We are inclined to agree in part with the submission urged bythe learned counsel for the appellant.

C11. The question as to how the application for grant of leave toappeal made under Section 378 (3) of the Code should be decided by theHigh Court and what are the parameters which the High Court shouldkeep in mind remains no more res integra. This issue was examined bythis Court in State of Maharashtra vs. Sujay Mangesh Poyarekar(supra). Justice C.K. Thakker speaking for the Bench held in paras 19,D20, 21 and 24 as under:

“19. Now, Section 378 of the Code provides for filing ofappeal by the State in case of acquittal. Sub-section (3)declares that no appeal “shall be entertained except withthe leave of the High Court”. It is, therefore, necessaryEfor the State where it is aggrieved by an order of acquittalrecorded by Court of Session to file an application forleave to appeal as required by sub-section (3) of Section378 of the Code. It is also true that an appeal can beregistered and heard on merits by the High Court only afterFthe High Court grants leave by allowing the application filedunder sub-section (3) of Section 378 of the Code.

20. In our opinion, however, in deciding the questionwhether requisite leave should or should not be granted,the High Court must apply its mind, consider whether aGprima facie case has been made out or arguable points havebeen raised and not whether the order of acquittal wouldor would not be set aside.

21. It cannot be laid down as an abstract proposition of lawof universal application that each and every petition seeking

leave to prefer an appeal against an order of acquittalrecorded by trial court must be allowed by the appellatecourt and every appeal must be admitted and decided onmerits. But it also cannot be overlooked that at that stage,the court would not enter into minute details of theprosecution evidence and refuse leave observing that thejudgment of acquittal recorded by the trial court could notbe said to be “perverse” and, hence, no leave should begranted.

24. We may hasten to clarify that we may not be understoodto have laid down an inviolable rule that no leave should berefused by the appellate court against an order of acquittalrecorded 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 recordreasons why leave sought by the State should not be grantedand the order of acquittal recorded by the trial court shouldnot be disturbed. Where there is application of mind by theappellate court and reasons (may be in brief) in support ofsuch view are recorded, the order of the court may not besaid to be illegal or objectionable. At the same time,however, if arguable points have been raised, if the materialon record discloses deeper scrutiny and reappreciation,review or reconsideration of evidence, the appellate courtmust grant leave as sought and decide the appeal on merits.In the case on hand, the High Court, with respect, didneither. In the opinion of the High Court, the case did notrequire grant of leave. But it also failed to record reasonsfor refusal of such leave.”

12. Coming now to the facts of this case, it is apposite to reproducethe impugned order in verbatim infra:

“On careful perusal of the judgment and record, it cannotbe said that the view taken by the trial judge is perverse orunreasonable. Simply because another view might havebeen taken of the evidence provides no ground forinterfering with the order of acquittal unless the view takenby the trial judge is not possible view. On the evidence

Aavailable on record, it cannot be said that the view takenby the trial judge was not reasonably possible view.

In this view of the matter, there is no merit in theapplication for leave to appeal which is rejected andconsequently, the Government Appeal is also dismissed.”

13. We are constrained to observe that the High Court grosslyerred in passing the impugned order without assigning any reason. Inour considered opinion, it was clear case of total non-application ofmind to the case by the learned Judges because the order impugnedneither sets out the facts nor the submissions of the parties nor the findingsCand nor the reasons as to why the leave to file appeal is declined to theappellant. We, therefore, disapprove the casual approach of the HighCourt in deciding the application which, in our view, is against the lawlaid down by this Court in the case of State of Maharashtra vs. SujayMangesh Poyarekar (supra).

14. In the light of the foregoing discussion, the impugned orderdeserves to be set aside. The appeal thus succeeds and is accordinglyallowed and the impugned order is set aside. The case is remanded tothe High Court for deciding the application made by the appellant forgrant of leave to appeal afresh on merits in accordance with law keepingin view the law laid down by this Court in State of Maharashtra vs.

ESujay Mangesh Poyarekar (supra).

15. It is made clear that we have not applied our mind to themerits of the case and remanded the case to the High Court havingnoticed that it was an unreasoned order. The High Court will accordinglydecide the application on merits uninfluenced by any of our observationsFmade in this order.

Devika Gujral

Appeal allowed.