State of Rajasthan vs. Firoz Khan @ Arif Khan

IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 750 OF 2006 State of Rajasthan Firoz Khan @ Arif Khan JUDGMENT Abhay Manohar Sapre J This appeal is filed by the State of Rajasthan against the final judgment and order dated 28.10.2005 passed by the High Court of Judicature for Rajasthan at Jodhpur in D.B. Criminal Leave to Appeal No. 2205 whereby the Division Bench of the High Court dismissed the application filed by the appellant herein Page 1 seeking leave to file appeal under Section 378(3) of the Criminal Procedure Code 1973against the judgment dated 13.08.2004 passed by the Sessions Judge Jaisalmer in Sessions Trial Case No. 402. 2) 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 The respondentwas prosecuted and tried for commission of an offence of murder of one Liley Khan aged around 11 years under Section 302 of the Indian Penal Code 1860pursuant to lodging of FIR No 44 2002 in Police Station Ramgarh District Jaisalmer in Sessions Trial Case No. 402 in the Court of District and Sessions Judge Jaisalmer. The Page 2 prosecution adduced evidence in support of their By judgment dated 13.8.2004 the Session Judge on appreciating the evidence adduced by the prosecution acquitted the respondent of the charge of murder by giving him benefit of doubt The State of Rajasthan felt aggrieved of respondent s acquittal filed application for leave to appeal before the High Court under Section 3789 SCC 475. Page 4 10) We are inclined to agree in part with the submission urged by the learned counsel for the 11) The question as to how the application for grant of leave to appeal made under Section 378declares 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 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 Page 5 application filed under sub section 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 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 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 Page 6 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 12) Coming now to the facts of this case it is apposite to reproduce the impugned order in No case for grant of leave is made out. Accordingly the leave to appeal stands 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 Page 7 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 In the light of 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. 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 It is made clear that we have not applied our mind to the merits of the case and remanded the Page 8 case 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 16) Since the case is old we request the High Court to decide the matter within three months from the date of receipt of this order. Since no one appeared in this Court for the respondent despite notice to him the High Court will issue a fresh notice of the application for grant of leave to the respondent and then decide the application as . ...................................J [ABHAY MANOHAR SAPRE …..................................J [ASHOK BHUSHAN New Delhi May 17 2016

Summary: That 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 [Case Brief] State of Rajasthan vs. Firoz Khan @ Arif Khan Case name: State of Rajasthan vs. Firoz Khan @ Arif Khan Case number: CRIMINAL APPEAL NO. 750 OF 2006 Court: Supreme Court of India Bench: Abhay Manohar Sapre, J. Ashok Bhushan J. Decided on: 17th May, 2016 Relevant Act/Sections: Section 378(3) of the Criminal Procedure Code    This appeal is filed by the State of Rajasthan against the final judgment and order dated 28.10.2005 passed by the High Court of Judicature for Rajasthan at Jodhpur in D.B. Criminal Leave to Appeal No. 227 of 2005 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”) against the judgment dated 13.08.2004 passed by the Sessions Judge, Jaisalmer in Sessions Trial Case No. 48 of 2002.The respondent (accused) was prosecuted and tried for commission of an offence of murder of one Liley Khan aged around 11 years under Section 302of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) pursuant to lodging of FIR No 44/2002 in Police Station Ramgarh, District Jaisalmer in Sessions Trial Case No. 48 of 2002 in the Court of District and Sessions Judge, Jaisalmer. The prosecution adduced evidence in support of their case.By judgment dated 13.8.2004, the Session Judge on appreciating the evidence adduced by the prosecution acquitted the respondent of the charge of murder by giving him benefit of doubt. The State of Rajasthan, felt aggrieved of respondent’s acquittal, filed application for leave to appeal before the High Court under Section 378 (3) of the Code. 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. Notice of lodgment of petition of appeal was served on the respondent but despite service of notice, the respondent has not appeared.Learned counsel for the appellant-State 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. Hence the present appeal ISSUE BEFORE THE COURT: How the application for grant of leave to appeal made under Section 378 (3) of the Code should be decided by the High Court?What are the parameters which the High Court should keep in mind remains no more res Integra? RATIO OF THE COURTThe court observed that this issue was examined by the Court in State of Maharashtra vs. Sujay Mangesh Poyarekar where it was held that it is 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.The court also observed that 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. In courts 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.The court observed that the High Court grossly erred in passing the impugned order without assigning any reason. In the considered opinion of court, 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, therefore, it was disapproved the casual approach of the High Court in deciding the application. The court observed that this issue was examined by the Court in State of Maharashtra vs. Sujay Mangesh Poyarekar where it was held that it is 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.The court also observed that 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. In courts 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.The court observed that the High Court grossly erred in passing the impugned order without assigning any reason. In the considered opinion of court, 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, therefore, it was disapproved the casual approach of the High Court in deciding the application. DECISION HELD BY COURT:The appeal thus succeeded and was accordingly allowed and the impugned order is set aside. The case was 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).The court held that since no one appeared in this Court for the respondent despite notice to him, the High Court will issue a fresh notice of the application for grant of leave to the respondent and then decide the application as directed. The appeal thus succeeded and was accordingly allowed and the impugned order is set aside. The case was 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).The court held that since no one appeared in this Court for the respondent despite notice to him, the High Court will issue a fresh notice of the application for grant of leave to the respondent and then decide the application as directed.