State Of Himachal Pradesh vs Sardara Singh

Division Bench of the Himachal Pradesh High Court

1 dismissing the application filed by the State in terms of

Section 378(3) of the Code of Criminal Procedure, 1973 (in

short the `Code'). The application was dismissed summarily

by simply stating "Dismissed".

3. The respondent faced trial for alleged commission of

offences punishable under Section 15 of the Narcotic Drugs

and Psychotropic Substances Act, 1985 (in short the `NDPS

Act').

4. The trial court directed acquittal on the ground that the

evidence of the official witnesses cannot be accepted and

accordingly the acquittal was recorded. The application under

Section 378 was filed which as noted above was dismissed

summarily.

5. Learned counsel for the appellant submitted that the

manner of disposal of the application is contrary to the

decisions of this court in a large number of cases.

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6. Learned counsel for the respondent submitted that there

is no merit in the case and, therefore, the High Court was

justified in rejecting the application for grant of leave.

7. Section 378 (3) of the Cr.P.C. deals with the power of the

High Court to grant leave in case of acquittal. Section 378 (1)

and (3) of the Cr.P.C. as it stood then, reads as follows:

"378(1) Save as otherwise provided in sub-section (2) and subject to the provisions of sub-section (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 any Court other than a High Court or an order of acquittal passed by the Court of Session in revision.

(3) No appeal under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court".

8. The trial Court was required to carefully appraise the

entire evidence and then come to a conclusion. If the trial

3 Court was at lapse in this regard the High Court was obliged

to undertake such an exercise by entertaining the appeal. The

trial Court on the facts of this case did not perform its duties,

as was enjoined on it by law. The High Court ought to have in

such circumstances granted leave and thereafter as a first

court of appeal, re-appreciated the entire evidence on the

record independently and returned its findings objectively as

regards guilt or otherwise of the accused. It has failed to do

so. The questions involved were not trivial. The primary

ground for acquittal seems to be that the alleged eye-

witnesses did not support the prosecution case and, therefore,

their presence is doubtful. The High Court has not given any

reasons for refusing to grant leave to file appeal against

acquittal, and seems to have been completely oblivious to the

fact that by such refusal, a close scrutiny of the order of

acquittal, by the appellate forum, has been lost once and for

all. The manner in which appeal against acquittal has been

dealt with by the High Court leaves much to be desired.

Reasons introduce clarity in an order. On plainest

consideration of justice, the High Court ought to have set forth

4 its reasons, howsoever brief, in its order indicative of an

application of its mind, all the more when its order is

amenable to further avenue of challenge. The absence of

reasons has rendered the High Court order not sustainable.

Similar view was expressed in State of U.P. v. Battan and Ors

(2001 (10) SCC 607). About two decades back in State of

Maharashtra v. Vithal Rao Pritirao Chawan (AIR 1982 SC

1215) the desirability of a speaking order while dealing with

an application for grant of leave was highlighted. The

requirement of indicating reasons in such cases has been

judicially recognized as imperative. The view was re-iterated in

Jawahar Lal Singh v. Naresh Singh and Ors. (1987 (2) SCC

222). Judicial discipline to abide by declaration of law by this

Court, cannot be forsaken, under any pretext by any authority

or Court, be it even the Highest Court in a State, oblivious to

Article 141 of the Constitution of India, 1950 (in short the

`Constitution').

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9. Even in respect of administrative orders Lord Denning

M.R. in Breen v. Amalgamated Engineering Union (1971 (1) All

E.R. 1148) observed "The giving of reasons is one of the

fundamentals of good administration". In Alexander

Machinery (Dudley) Ltd. v. Crabtree (1974 LCR 120) it was

observed: "Failure to give reasons amounts to denial of

justice". Reasons are live links between the mind of the

decision taker to the controversy in question and the decision

or conclusion arrived at". Reasons substitute subjectivity by

objectivity. The emphasis on recording reasons is that if the

decision reveals the "inscrutable face of the sphinx", it can, by

its silence, render it virtually impossible for the Courts to

perform their appellate function or exercise the power of

judicial review in adjudging the validity of the decision. Right

to reason is an indispensable part of a sound judicial system,

reasons at least sufficient to indicate an application of mind to

the matter before Court. Another rationale is that the affected

party can know why the decision has gone against him. One of

the salutary requirements of natural justice is spelling out

reasons for the order made, in other words, a speaking out.

6 The "inscrutable face of a sphinx" is ordinarily incongruous

with a judicial or quasi-judicial performance.

10. These aspects were highlighted in State of Punjab v.

Bhag Singh (2004(1) SCC 547)

11. In view of the principles set out above it would be

appropriate to direct the High Court to grant leave as grounds

raised are not without substance.

12. Appeal is allowed.

..........................................J. (Dr. ARIJIT PASAYAT)

............................................J. (Dr. MUKUNDAKAM SHARMA) New Delhi August 27, 2008

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