State Of Himachal Pradesh vs Shish Ram

Division Bench of the Himachal Pradesh High Court dismissing the application filed by the appellant-State for

grant of leave to file appeal against the judgment of acquittal

passed by the Trial Court i.e. learned Additional Chief Judicial

Magistrate, Kandaghat, Camp at Solan, H.P. in Criminal case

no.133/2 of 02/95. Respondent faced trial for alleged

commission of offences punishable under Sections 420, 467,

468 and 471 of the Indian Penal Code, 1860 (in short the

`IPC').

3. Though various points were urged in support of the

appeal, the primary stand was that by non-reasoned order the

application was disposed of.

4. There is no appearance on behalf of respondent in spite

of the service of notice.

5. The order which is impugned in the present appeal reads

as follows:

"Be registered. Heard. Dismissed."

2 6. Reasons introduce clarity in an order. On plainest

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

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's judgment not

sustainable.

7. 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

3 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.

The "inscrutable face of a sphinx" is ordinarily incongruous

with a judicial or quasi-judicial performance.

7. In State of Punjab vs. Bhag Singh (2004 (1) SCC 547), it

was observed as follows:

"4. According to learned counsel for the appellant-State it was imperative on the High Court to indicate reasons as to why the prayer for grant of leave was found untenable. In the absence of any such reasons the order of the High Court is indefensible. Section 378 (3) of the Code deals with the power of the High Court to grant leave in case of acquittal.

4 Section 378 (1) and (3) of the Code 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.

xx xx xx

(3) No appeal under sub-

section (1) or sub-section (2) shall be entertained except with the leave of the High Court".

5. The trial Court was required to carefully appraise the entire evidence and then come to a conclusion. If the trial 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 5 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 requirement of independent witness and discarding testimony of official witnesses even if it was reliable, cogent or trustworthy needed adjudication in appeal. 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 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 6 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')".

8. The appeal is allowed.

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

...............................J. (P. SATHASIVAM)

New Delhi, July 15, 2008

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