STATE OF UTTAR PRADESH versus ANIL KUMAR @ BADKA & ORS.
[2018] 10 S.C.R. 726, Supreme Court of India, 2018
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
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SUPREME COURT REPORTS
[2018] 10 S.C.R.
STATE OF UTTAR PRADESH
v.
ANIL KUMAR @ BADKA & ORS.
(Criminal Appeal No. 1094 of 2018)
AUGUST 29, 2018
[ABHAY MANOHAR SAPRE AND
UDAY UMESH LALIT, JJ.]
Code of Criminal Procedure, 1973: s.378(3) – Application
seeking leave to file appeal – Parameters which the High Court
should keep in mind for deciding the application, discussed – In
the instant case, the trial court and the appellate court ordered
acquittal of the respondent – State filed application seeking leave
to file appeal challenging the acquittal – High Court  declined to
grant leave and rejected the application – State’s appeal – Held:
High Court in its order neither set out the facts nor the submission
of the parties nor the findings nor the reason as to why the leave to
file appeal was declined to the appellant – Thus, it was a clear case
of non-application of mind to the case by the High Court – Impugned
order set aside and matter remitted to High Court for deciding the
application for grant of leave to appeal afresh on merits in
accordance with law keeping in view the law laid down in Sujay
Mangesh 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.
Case Law Reference
[2008] 13 SCR 750
      relied on
Para 9
CRIMINAL APPELLATE JURISDICTION :  Criminal Appeal
No. 1094 of 2018.
From the Judgment and Order dated 02.09.2014 of the High Court
of 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.
  [2018] 10 S.C.R. 726
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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 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 Division
Bench of the High Court dismissed the 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 accused-respondents 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
120-B of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”)
pursuant to lodging of FIR No. 139/2012 in Police Station  Gursahay
Ganj, 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 Judge
on appreciating the evidence adduced by the prosecution acquitted the
respondents (accused) of the charge of
offences punishable under
Sections 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 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.
9. Learned counsel for the appellant-State has made only  one
submission.  According to him, the High Court while dismissing the
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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.
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. Sub-section (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 sub-section (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 sub-section (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 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
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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 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
STATE OF UTTAR PRADESH v. ANIL KUMAR @ BADKA
[ABHAY MANOHAR SAPRE, J.]
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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 non-application of
mind to the case by the learned Judges because 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).
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.
 Devika Gujral
                                Appeal allowed.