iminal Appeal No 278 of 1975
Appeal by special leave from the judgment and order dated the 16th October 1974 of the Madhya Pradesh High Court in Misc
Criminal Case No 786 of 1974
Gopal Subramaniam for the Appellant
PD Sharma for the Respondent
The Judgment of the Court was delivered by SEN J
The short question involved in this appeal by special leave from the judgment and order of the Madhya Pradesh High Court is whether an application for leave  to appeal under sub section
3 of section 378 of the Code of Criminal Procedure 1973 hereinafter referred to as the Code  without which no appeal under sub section
1 or sub section
2 thereof can be entertained being an integral part of the appeal must be laid before a Bench of two Judges of the High Court under r 1 q ii Chap
I Part I of the Madhya Pradesh High Court Rules or can be heard and disposed of by a Single Judge of the High Court under r 1 q of the Rules
The material facts giving rise to the appeal are these
The State Government of Madhya Pradesh having decided to prefer an appeal under sub section
1 of section 378 of the Code filed an application for leave  to appeal under sub section
3 thereof setting out therein the grounds of appeal
According to the practice prevalent in the Madhya Pradesh High Court the application was listed before a Single Judge as per rule 1 q Chapter I Part I of the Madhya Pradesh
High Court Rules The learned Single Judge refused to grant leave to appeal under sub section
3 of section 378 on the ground that the judgment of acquittal was based on appreciation of evidence and was not perverse or unreasonable
The State Government applied for grant of a certificate under article 134 1 c of the Constitution
The application for grant of a certificate was placed before and heard by a Division Bench
The contention on behalf of the State Government was that an application for grant of leave under sub section
3 of section 378 of the Code must be treated as a part of the appeal preferred by the State Government under sub section
1 thereof and 84 therefore should have been placed before a Bench of two Judges and consequently the order of the learned Single Judge rejecting the application for grant of leave under sub section
3 of section 378 of the Code was a nullity
The Division Bench following the decision of another Division Bench in the State of Madhya Pradesh vs Narendrasingh rejected the contention of the State that the learned Single Judge had no jurisdiction to entertain or decide the application for leave to appeal under sub section
3 of section 378 of the Code
It however noticed the incongruity of the requirement that an appeal under sub section
1 or sub section
2 of section 378 should be placed before a Bench of two Judges under r 1 q ii of the Madhya Pradesh High Court Rules and the hearing and disposal of an application for leave under sub s 3 thereof should be by a Single Judge and observed The matter is being examined by the rule making Committee
It is rather anomalous that under rule 1 q item ii of Chapter I of the Madhya Pradesh High Court Rules an appeal against acquittal filed by the State Government has to be heard by a Division Bench still the application for leave under section 378 3 of the Code should be laid before a Single Judge
 As the case involved an important question relating to procedure and practice and as the correctness of the decision of the High Court in Narendrasingh s case was open to question special leave was granted by this Court
It appears that a practice was prevalent in the Madhya Pradesh High Court requiring the State Government or the Central Government desirous of preferring an appeal under sub section
1 or sub section
2 of section 378 of the Code to make an application for leave under sub section
3 thereof and it was registered as a Miscellaneous Criminal Case and treated as a petition and as such placed before a Single Judge for hearing as per r 1 q Chap
I Part 1 of the Madhya Pradesh High Court Rules
It was only when the Single Judge granted leave to appeal under sub section
3 that the petition for Leave was registered as a Criminal Appeal and placed before a Division Bench for admission under sub section
1 of section 384 of the Code
85 The contention that there was inherent lack of jurisdiction on the part of a Single Judge to hear and decide an application for leave under sub section
3 of section 378 of the Code and therefore the proceedings were null and void is based on the provisions contained in r 1 qii Chap
I Part I of the Madhya Pradesh High Court Rules which read as follows l
The following matters shall ordinarily be heard and disposed of by a Judge sitting alone xx xx xx xx q An appeal petition or reference under the Code of Criminal Procedure other than xx xx xx xx ii an appeal by the Provincial Government under section 417 of the Code from an order of acquittal
 The heading of Chap
I in which the rule finds place is Jurisdiction of a Single Judge and of Benches of the Court
 It is urged that any breach of the rule would render the judgment a nullity
Rule 4 of the said Rules provides that Save as provided by law or by rules or by special orders of the Chief Justice all matters shall be heard and disposed of by a Bench of two Judges 
By reason of section 8 2 of the  reference to an appeal against acquittal under section 417 1 of the Code of Criminal Procedure 1898 hereinafter referred to as the old Code  by the Provincial Government has to be read as an appeal against acquittal by the State Government under sub section
1 of section 378
It is contended on behalf of the State Government that the making of an application for leave under sub section
3 of s 378 of the Code is tantamount to filing an appeal under sub section 1 thereof and the High Court can grant leave and entertain the appeal at one and the same time inasmuch as such an application by the State Government under sub section
3 is transmuted into an appeal against acquittal under sub section
1 of section 378 when leave is granted under sub section
3 and therefore the application for leave under sub section 3 had to be heard by a Bench of two Judges
It is urged that a com 86 parison of the language employed in sub sections
3 and 4 of section 378 would make it clear that the Parliament never intended in the case of an acquittal that the State Government should first make an application for leave under sub 3 of section 378 and then if leave is granted present an appeal under sub section
1 of section 378
It is further urged that the jurisdiction of a Single Judge is limited by the words other than  in r 1 q of the Madhya Pradesh High Court Rules and an appeal preferred by the State Government under sub section
1 of section 378 of the Code could be heard and decided only by a Bench of two Judges as required by r 1 q ii of the Rules
The submission advanced on behalf of the respondents on the other hand is that the introduction of the new provision in sub section
3 of section 378 and the use of the words leave of the High Court  and the word entertained  clearly indicates the legislative intent to prescribe for two different stages 1 the making of an application for leave under sub section
3 of section 378 and 2 then if leave is granted presenting the petition of appeal under section 382 of the Code
It is urged that the State Government must obtain leave  of the High Court under sub section
3 of section 378 before an appeal against acquittal is preferred under sub section
1 thereof as in the case of a private complainant under sub section
4 of section 378 and the difference in language in sub section 3 and sub section
4 is of little consequence
In Narendrasingh s case the State Government being
desirous of preferring an appeal against acquittal under sub section
1 of section 378 made an application for grant of leave under sub section
3 and the proposed memorandum of appeal was annexed thereto
An application was filed on behalf of the State Government stating that the prayer for grant of leave under sub section
3 be treated as a part of the appeal itself and not separately
It was further prayed that the case which had originally been registered as a Miscellaneous Criminal Case relating to the grant of leave should be registered as a Criminal Appeal 
The matter was therefore placed before a Division Bench
The learned Judges of the High Court referred to the report of the Law Commission and observed that the legislative object in re enacting the provisions of section 417 of the old Code with the addition of the new provision contained in sub section
3 87 of section 378 of the Code was that there had to be a further scrutiny of a State appeal by the Court even prior to the stage of admission requiring the Court to consider at the very outset whether the appeal should be entertained or not
It was only after the appeal was entertained with the leave  of the Court that it had to be heard for admission and it may be dismissed summarily without notice to the other side
It was further observed that the legislature brought about the change while accepting the recommendation of the Law Commission to retain the power of the High Court to dismiss State appeals summarily without notice to the respondents
In substance the decision in Narendrasingh s case as expressed in the words of the learned Judges may be thus stated A the very outset on an appeal against acquittal being lodged by the State the High Court is to consider whether leave should be granted or not
It is only when leave is granted under section 3783 that the appeal is entertained
On the appeal being so entertained as a con sequence of the grant of leave it is to be listed for admission and in case it is not dismissed summarily under section 384 1 notice is to be issued to the accused under section 385 1 iv
xx xx xx xx The appeal being entertained only on the grant of leave under sec
378 3 the matter relating to grant of leave has to be ordinarily heard and disposed of by a Single Bench of this Court according to Rules
The appeal itself being entertained only when leave is granted there is in fact no appeal as such till the leave is granted even though it may have been lodged while praying for leave
The matter has therefore to be initially registered only as a Miscellaneous Criminal Case  and it is only when the leave is granted resulting in the appeal being entertained that it can be registered as a criminal appeal
Thereafter it has to be listed before the Division Bench for admission
 In making these observations the learned Judges appear to have been swayed by a practice which was prevalent in their Court
88 The jurisdiction of the Court in these matters is however statutory and the Court is not entitled to go outside the provisions of a statute but must interpret them as they are
The answer to the question involved must turn on a proper construction of sub section
3 of section 378 of the Code
Section 378 of the Code corresponds to section 417 of the old Code as amended in 1955
Sub section
1 of section 378 of the Code is in terms the same as sub section
1 of section 417 of the old Code and it provides that Save as otherwise provided in sub section
2 and subject to the provisions of sub sections
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 a court other than a High Court 
Sub section
2 of section 378 corresponds to sub section
2 of section 417 and confers the right of appeal on the Central Government in certain class of cases subject to the provisions of sub section
3 from such an order of acquittal
Sub section 3 of section 378 is a new provision inserted to implement the recommendation of the Law Commission made in its 48th Report on Appeals against Acquittals and provides that 3
No appeal under sub section
1 or sub section
2 shall be entertained except with the leave of the High Court
 Sub section
4 and sub section
5 deal with an order of acquittal passed in any case instituted upon a complaint
Sub section
4 provides that if an order of acquittal is passed in such a case and the High Court on an application made to it by the complainant in that behalf grants special leave  to appeal from the order of acquittal the complainant may present such an appeal to the High Court
Sub section
5 provides for two distinct periods of limitation
No application under sub section
4 for grant of special leave to appeal from an order of acquittal in a complaint case shall be entertained by the High Court at the expiry of six months where the complainant is a public servant and sixty days in other cases computed from the date of the order of acquittal
There is no period of limitation prescribed for presenting an application for grant of leave to appeal under sub section
3 of section 378 from an order of acquittal passed in a case instituted otherwise than upon a complaint obviously because the Code does not contemplate the making of an application for leave under sub section
3 of section 378 of the Code
Thus the period of limita 89 tion in such a case is for an appeal from an order of acquittal Under sub section
1 or sub section
2 of section 378 of the Code as prescribed by article 114 of the 
The period of limitation prescribed therefor is sixty days from the date of the order appealed from
Under the scheme of the Code the State Government or the Central Government may prefer an appeal under sub section
1 or sub section
2 of section 378 of the Code but such appeal shall not be entertained unless the High Court grants leave  under sub section
3 thereof
The words No appeal under sub section
1 or sub section
2 shall be entertained  used in sub section
3 of section 378 create a qualified bar to the entertainment of an appeal filed by the State Government or the Central Government under sub section
1 or sub section
2 from an order of acquittal passed in a case instituted otherwise than upon a complaint
The Code by enacting sub section
3 of section 378 therefore brought about a change in that there is no longer an unrestricted right of appeal against the orders of acquittal passed in such cases
The making of an application for grant of leave to appeal by the State Government or the Central Government under sub section
3 of section 378 is however not a condition precedent to the entertainment of such an appeal
The prayer for grant of leave under sub section
3 may as it should be contained in the petition of appeal filed under section 382 of the Code
There is no warrant for the view expressed by the High Court in Narendrasingh s case that the legislative object in re enacting the provisions of section 417 of the old Code with the addition of the new provision contained in sub section
3 of section 378 of the Code was that there was to be a preliminary scrutiny of a State appeal by the Court even prior to the stage of admission requiring the Court to consider at the very outset whether the appeal should be entertained or not and that it was only after the appeal was entertained with the leave of the Court that it was to be heard for admission under sub section
1 of section 384 read with sub section
1 of section 385 of the Code
The High Court appears to rest its decision more on the Report of the Law Commission than the actual language of sub section
3 of section 378 of the Code in coming to the conclusion that sub section
3 contemplated two stages
Sub section
3 of section 378 is not susceptible of any such construction
The Law Commission in its 48th Report had observed
90 While one may grant that cases of unmerited acquittals do arise in practice there must be some limit as to the nature of cases in which the right should be available And keeping in view the general rule in most common law countries not to allow an unrestricted right of appeal against acquittals it recommended With these considerations in view we recommend that appeals against acquittals under section 417 even at the instance  of the Central Government or the State Government should be allowed only if the High Court grants special leave
It may be pointed out that even now the High Court can summarily dismiss an appeal against an acquittal or for that matter any criminal appeal
Section 422 Criminal PC
Therefore the amendment which we are recommending will not be so radical a departure as may appear at the first sight
It will place the State and the private complainant on equal footing
Besides this we ought to add that under section 422 of the Code it is at present competent to the appellate Court to dismiss the appeal both of the State and of the complainant against acquittal at the preliminary hearing
 The recommendations of the Law Commission were not however fully carried into effect
Sub section
3 of section 378 of the Code was introduced by Parliament to create a statutory restriction against entertainment of an appeal filed by the State Government or the Central Government under sub section
1 or sub section
2 of section 378 from an order of acquittal passed in a case instituted otherwise than upon complaint
At the same time Parliament re enacted sub sections
3 and 4 of section 417 as sub sections
4 and 5 of section 378 which deal with an order of acquittal passed in any case instituted upon a complaint
The result of this has been that there is a difference in the procedure regulating entertainment of State appeals against acquittals under sub section
1 or sub section
2 of section 378 and appeals against acquittals filed by a complainant under sub section
5 of section 378
On a comparison of the language employed in sub section
3 and sub section
4 of section 378 it is clear that the legislature has chosen to treat State appeals in a manner different 91 from appeals by a complainant in the matter of preferring appeals against acquittals
In the case of an appeal from an order of acquittal passed in a case instituted otherwise than upon complaint preferred by the State Government or the Central Government under sub section
1 or sub section
2 of s 378 the Code does not contemplate the making of an application for leave under sub section
3 thereof while the making of an application under sub section
4 of section 378 is a condition precedent for the grant of special leave  to a complainant under sub section
5 The difference in language used in sub section
3 and sub section
4 of section 378 manifests the legislative intent to preserve a distinction between the two classes of appeals by prescribing two different procedures in the matter of entertainment of appeals against acquittals
It therefore follows that the State Government or the Central Government may while preferring an appeal against acquittal under sub section
1 or sub section
2 of section 378 incorporate a prayer in the memorandum of appeal for grant of leave under sub section
3 thereof or
make a separate application for grant of leave under sub section
3 of section 378 but the making of such an application is not a condition precedent for a State appeal
In the State of Rajasthan vs Ramdeen  Ors this Court dealt with a case where the Rajasthan High Court granted the State Government leave to appeal under sub section
3 of section 378 of the Code but dismissed the appeal filed thereafter on the ground that it had not been filed within ninety days from the judgment appealed from and was therefore barred by limitation under article 114 of the 
The application for grant of leave under sub section
3 contained all the requisites of a memorandum of appeal and had been filed within ninety days from the date of order of acquittal but was not accompanied by a petition of appeal
It was held that an appeal under sub section
1 of section 378 was an integral part of an application for leave to appeal under sub s 3 Accordingly the order passed by the High Court dismissing the appeal as barred by limitation was set aside
In dealing with the question it was observed Under the law it will be perfectly in order if a composite application is made giving the necessary facts and circumstances of the case along with the grounds which may be urged in the appeal with a prayer for leave to enter 92 tain the appeal
It is not necessary as a matter of law that an application for leave to entertain the appeal should be lodged first and only after grant of leave by the High Court an appeal may be preferred against the order of acquittal
If such a procedure is adopted as above it is likely as it has happened in this case the appeal may be time barred if the High Court takes more than ninety days for disposal of the application for leave
The possibility that the High Court may always in such cases condone the delay on application filed before it does not in law solve the legal issue
The right conferred by section 378 1 Cr
PC upon the State to prefer an appeal against acquittal will be jeopardised if such a procedure is adopted for in certain cases it may so happen that the High Court may refuse to exercise its discretion to condone the delay
The right conferred under the section cannot be put in peril by an interpretation of section 378 Cr
PC which is likely to affect adversely or even perhaps to destroy that right
 The view expressed by the High Court in Narendrasingh s case being in conflict with the decision of this Court in Ramdeen s case must be overruled
It must accordingly be held that the learned Single Judge had no competence to entertain hear or dispose of the question of grant of leave under sub section
3 of section 378 as it had virtually entailed dismissal of the appeal preferred by the State Government under sub section
1 thereof
The matter should have been dealt with by a Bench of two Judges in terms of r 1 q ii Chap
1  of the Madhya Pradesh High Court Rules
The question at issue has now become academic
As already stated the High Court while refusing the grant of certificate of fitness had adverted to the fact that the matter was being examined by the Rule Making Committee
It has since amended r 1 q and made a distinction between appeals from orders of acquittals under sub section
1 of section 378 in respect of 1 offences punishable with sentence of death or imprisonment for life and triable by Court of Sessions and 2 other offences
All appeals falling under category 1 together with applications for leave under sub section
3 of section 378 have to be heard by a Bench of two Judges and other appeals falling under category 2 together with applications for leave under sub s 3 of section 378 are to be heard by a Single Judge
93 In the result the appeal must succeed and is allowed
The order passed by the High Court dismissing the application for leave under sub section
3 of section 378 of the Code of Criminal Procedure 1973 filed by the State Government of Madhya Pradesh is set aside and it is directed that the application shall be dealt with by a Bench of two Judges as required by r 1 q ii Chap
I Part I of the Madhya Pradesh High Court Rules prior to its amendment
HLC Appeal allowed


Summary:
The Code of Criminal Procedure 1973 provides inter alia by sub section
3 of section 38 that no appeal against an order of acquittal passed by a lower court shall be entertained under sub section
1 or sub s2 except with the leave of the High Court
A practice was prevalent in the Madhya Pradesh High Court requiring the State Government or the Central Government desirous of preferring an appeal under sub section
1 or sub section
2 of section 378 of the Code to make an application for leave under sub section
3 thereof and it was registered as a Miscellaneous Criminal Case and treated as a petition and as such placed before a Single Judge for hearing as per r 1 q Chapter I Part I of the Madhya Pradesh High Court Rules
It was only when the Single Judge granted leave to appeal under sub section
3 that the petition for leave was registered as a Criminal Appeal and placed before a Division Bench for admission under sub section
1 of section 384
The State Government of Madhya Pradesh having decided to prefer an appeal under sub section
1 of section 378 filed an application for leave to appeal under sub section
3 setting out therein the grounds of appeal and the Single Judge who heard it refused to grant the leave
The State Government made an application for grant of certificate under Article 134 1 c of the Constitution
The application was heard by a Division Bench
The contention was that there was inherent lack of jurisdiction on the part of the Single Judge to hear and decide an application for leave under sub section
3 of section 378 of the Code inasmuch as under r 1 q ii of the Madhya Pradesh High Court Rules Chapter I Part 1 the matter had to be dealt with by a Bench of two Judges
The High Court following its earlier decision in State of Madhya Pradesh vs Narendrasingh 1974 MPLJ N 102 rejected the contention holding that the State had to obtain leave  of the High Court under sub section
3 of section 378 before an appeal against acquittal was preferred under sub section 1 thereof and therefore the learned Single Judge had jurisdiction to deal with tho application for leave under sub section
82 In appeal to this Court the State Government contended that the making of an application for leave under sub section
3 of section 378 is tantamount to filing an appeal under sub section
1 thereof that the High Court could grant leave and entertain the appeal at one and the same time inasmuch as an application under sub section
3 would be transmuted into an appeal under sub section
1 when leave is granted under sub section 3 and therefore the application for leave under sub section
3 must have been laid before a Bench of two Judges under r 1 q ii of the High Court Rules
Allowing the appeal  HELD 1
An application for leave  to appeal under sub section
3 of section 378 without which no appeal under sub section
I or sub section
2 thereof can be entertained being an integral part of the appeal must be laid before a Bench of two Judges of the High Court under r 1 q ii Chapter I Part I of the Madhya Pradesh High Court Rules as it stood before the amendment and could not be heard and disposed of by a Single Judge of the High Court under r 1 q of the Rules as it stood prior to its amendment
92 E F 83 D 2
Sub section
3 of section 378 was introduced by Parliament to create a statutory restriction against entertainment of an appeal filed by the State Government or the Central Government under sub section
1 or sub section
2 thereof from an order of acquittal passed in a case instituted otherwise than upon a complaint
T here is a difference in the procedure regulating entertainment of State appeals under sub section
1 or sub section
2 of section 378 and appeals against acquittals filed by a complainant under sub section
4 of section 378
On a comparison of the language employed in sub section
3 and sub section
4 of section 378 it is clear that in the case of an appeal by the State Government or the Central Government under sub section
1 or sub section
2 the Code does not contemplate the making of
an application for leave under sub section
3 while making of an application under sub section
4 is a condition precedent for the grant of special leave to a complainant under sub section
The difference in language used in sub section
3 and sub section
4 of section 378 manifests the legislative intent to preserve a distinction between the two classes of appeals by prescribing two different procedures in the matter of entertainment of appeals against acquittals
While a period Of limitation has been prescribed in sub section
5 of section 378 for an application of the complainant under sub section
4 there is no period of limitation prescribed for an application for grant of Leave to appeal under sub section
3 obviously because the Code does not contemplate the making of an application for leave under sub section
3 of section 378
It therefore follows that the State Government or the Central Government may while preferring an appeal under sub section
1 or sub section
2 of section 378 incorporate a prayer in the memorandum of appeal for grant of leave under sub section
3 thereof or make a separate application for grant of leave under sub section
3 of section 378 but the making of such an application is not a condition precedent for a State appeal
90 F H 91 A C 88 G H 91 C D State of Madhya Pradesh vs Narendra Singh 1974 MPLJ N 102 over ruled
State of Rajasthan vs Ramdeen  ors
1977 3 SCR 139 relied on 83