The State Of Uttar Pradesh vs Anil Kumar @ Badka

CRIMINAL APPEAL NO.1094 OF 2018 (Arising out of S.L.P.(Criminal) No.5528 of 2015)

State of Uttar Pradesh Appellant(s)

VERSUS

Anil Kumar @ Badka & Ors. Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1) Leave granted.

2) This appeal is filed by the State of U.P. against

the final judgment and order dated 02.09.2014 passed

by the High Court of Judicature at Allahabad in

Government Appeal No.3317 of 2014 whereby the Signature Not Verified Digitally signed by ANITA MALHOTRA Date: 2018.08.29 Division Bench of the High Court dismissed the 13:38:38 IST Reason: 1 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”) and affirmed the judgment dated 31.05.2014

passed by the Additional Sessions Judge, Court No.3,

Kannauj acquitting the accused­respondents in S.T.

No.204 of 2012.

3) 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.

4) The respondents (accused) were prosecuted

and tried for commission of offences punishable

under Sections 363, 366, 376 and 120­B of the

Indian Penal Code, 1860 (hereinafter referred to as

“IPC”) pursuant to lodging of FIR No. 139/2012 in

Police Station Gursahay Ganj, sub­District Sadar,

District Kannauj in Sessions Trial Case No. 204 of

2012 in the Court of the Additional District Judge,

2 Court No.3, Kannauj. The prosecution adduced

evidence in support of their case.

5) By judgment dated 31.05.2014, the Additional

Sessions Judge on appreciating the evidence

adduced by the prosecution acquitted the

respondents (accused) of the charge of offences

punishable under Sections 363, 366, 376, 120­B

IPC.

6) The State of U.P., felt aggrieved by the

respondents' acquittal, filed an application for leave

to appeal before the High Court under Section 378

(3) of the Code.

7) 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

in this Court.

8) Heard learned counsel for the parties.

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9) Learned counsel for the appellant­State 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.

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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. Sub­section (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 sub­section (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 sub­section (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

5 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

6 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:

“On a careful perusal of the judgment and record, it cannot be said that the view taken by the trial judge is perverse or unreasonable. Simply because another view might have been taken of the evidence provides no ground for interfering with the order of acquittal unless the view taken by the trial judge is not a possible view. On the evidence available on record, it cannot be said that the view taken by the trial judge was not a reasonably possible view.

In this view of the matter, there is no merit in the application for leave to appeal which is rejected and consequently, the Government Appeal is also 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 non­application

of mind to the case by the learned Judges because

7 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 the 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).

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15) It is made clear that we have not applied our

mind to the merits of the case and remanded the

case to the High Court 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.

.……...................................J. [ABHAY MANOHAR SAPRE]

………..................................J. [UDAY UMESH LALIT] New Delhi, August 29, 2018.

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