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CASE NO.: Appeal (crl.)  778 of 1997

PETITIONER: State of Punjab                                                  

RESPONDENT: Bhag Singh                                               

DATE OF JUDGMENT: 16/12/2003

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

       Refusal to grant leave to question acquittal in terms of Section  378 (3) of the Code of Criminal Procedure, 1973 (in short the ’Code’) is  the subject matter of challenge. According to the appellant-State of  Punjab the one line "No merit. Dismissed" order of the High Court  without assigning reasons therefor does not meet the requirements of  law.  

Respondent (hereinafter referred to as the ’accused’) faced trial  for alleged commission of offence punishable under Section 18 of the  Narcotics Drugs and Psychotropic Substances Act, 1985 (in short the  ’Act’). Prosecution version was that on 26.4.1995 accused was found in  illicit possession of a large quantity of opium weighing one kilogram  which was being carried in a bag. The officer who apprehended the  accused informed him that if he wanted the bag to be searched in the  presence of a gazetted officer of police or a magistrate, he could  indicate his choice.  The accused however reposed confidence on the Sub- Inspector of Police who had apprehended the accused. Samples were  collected and sent for chemical examination. As the samples were found  to contain opium, on completion of investigation accused was challaned  to face trial. During his examination under Section 313 of the Code the  accused denied the allegations and pleaded false implication.

The trial Court held that the prosecution version was entirely  dependent upon the testimony of official witnesses and since no  independent witness was involved, the prosecution version was  vulnerable. It was noted that the search and seizure was made at a  through fare and it is unbelievable that no independent witness was  available. The trial Court therefore directed acquittal. The appellant- State filed an appeal before the Punjab and Haryana High Court which  refused to grant leave and disposed of the application for leave in the  following manner:

               "Heard. No merit.                  Dismissed."   

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. Section 378 (1) and (3) of the Code reads as follows:

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       "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.

       (3)       No appeal under sub-section (1) or sub- section (2) shall be entertained except with the  leave of the High Court".

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  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 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’).    

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 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

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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.  

In view of the aforesaid legal position, the impugned judgment of  the High Court is unsustainable and is set aside. We grant leave to the  State to file the appeal. The High Court shall entertain the appeal and  after formal notice to the respondents hear the appeal and dispose of it  in accordance with law, uninfluenced by any observation made in the  present appeal. The appeal is allowed to the extent indicated.