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CASE NO.: Appeal (crl.)  277 of 2008

PETITIONER: State of U.P.

RESPONDENT: Ajai Kumar

DATE OF JUDGMENT: 07/02/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO.   277                OF 2008 (Arising out of SLP (Crl.) No.2374 of 2007)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      Challenge in this appeal is to the order passed by a  Division Bench of the Allahabad High Court dismissing the  appeal filed by the appellant-State questioning correctness of  the order of acquittal recorded by the trial Court.  Originally,  three persons apart from respondents were arrayed as accused  persons.  Two of them expired before trial was concluded and  one had absconded and could not be arrested.  

Four persons faced trial for offences punishable under  Sections 394, 307, 411 of the Indian Penal Code, 1860 (in  short the ’IPC’). The allegation was that on 15.3.1994 while the  informant alongwith one Sushil Kumar, son of the owner Shri  Gopal was going towards the shop after withdrawing  Rs.1,25,000/- from the State Bank of India, the accused  persons forcibly snatched away the money after firing shots  from the pistols held by them. The informant and aforesaid  Sushil Kumar suffered injuries and were taken to hospital for  treatment. The first information report was lodged and  investigation was undertaken and part of the money was  recovered from the accused persons. Several witnesses were  examined to further the prosecution version.  

PWs 1 and 2 i.e. Bhagwat Narain and Sushil Kumar were  stated to have sustained injuries in the incident. The trial  Court directed acquittal primarily on the ground that the  witnesses could not say definitely as regards the numbers on  currency notes which were stated to have been withdrawn  from the bank and to have been robbed by the accused  persons.  This was highlighted to show the fallacy of the  conclusions to direct acquittal.    

       Several other factors were also indicated questioning  correctness of the decision. Appeal was filed with leave of the  High Court and same was dismissed with the following  observations:

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       "..We have perused the judgment. A perusal of  which would indicate that Prem Narayan the  relative of Chandesh Ravat (dead) has made a  telegram on 17.3.1994 to the Senior Superintendent  of Police concerned to the effect that Chandesh  Ravat was arrested by the police of Mahurani from  his house and the arrest has shown by the police is  20.3.1994, therefore, the arrest as well as the  recovery becomes doubtful.   

In above view of the matter no interference in  the order of acquittal is warranted.   The leave to appeal is hereby rejected."

3.      Learned counsel for the appellant submitted that the  High Court has not indicated the basis for coming to the  conclusion that the trial Court was right. In fact there was no  analysis of the evidence of the victims who had categorically  implicated the accused persons and had also described in  detail the respective role played by each.  

4.      Learned counsel for the respondent on the other hand  submitted that the order of acquittal was reinforced by the  order of dismissal of the appeal by the impugned order and no  interference is therefore called for.   

5.      While dealing with leave to appeal against acquittal, this  Court in State of Rajasthan v. Sohan Lal (2004 (5) SCC 573)  inter-alia observed as under:    "3. We have carefully considered the  submissions of the learned counsel appearing  on either side. This Court in State of Orissa v.  Dhaniram Luhar (2004 95) SCC 568) has while  reiterating the view expressed in the earlier  cases for the past two decades emphasised the  necessity, duty and obligation of the High  Court to record reasons in disposing of such  cases. The hallmark of a judgment/order and  exercise of judicial power by a judicial forum is  to disclose the reasons for its decision and  giving of reasons has been always insisted  upon as one of the fundamentals of sound  administration justice-delivery system, to  make known that there had been proper and  due application of mind to the issue before the  Court and also as an essential requisite of  principles of natural justice. The fact that the  entertaining of an appeal at the instance of the  State against an order of acquittal for an  effective consideration of the same on merits is  made subject to the preliminary exercise of  obtaining of leave to appeal from the High  Court, is no reason to consider it as an appeal  of any inferior quality or grade, when it has  been specifically and statutorily provided for,  or sufficient to obviate and dispense with the  obvious necessity to record reasons. Any  judicial power has to be judiciously exercised  and the mere fact that discretion is vested with  the court/forum to exercise the same either  way does not constitute any licence to exercise  it at whims or fancies and arbitrarily as used

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to be conveyed by the well-known saying:  "varying according to the Chancellor’s foot".  Arbitrariness has been always held to be the  anathema of judicial exercise of any power, all  the more so when such orders are amenable to  challenge further before higher forums. The  State does not in pursuing or conducting a  criminal case or an appeal espouse any right of  its own but really vindicates the cause of  society at large, to prevent recurrence as well  as punish offences and offenders respectively,  in order to preserve orderliness in society and  avert anarchy, by upholding the rule of law.  The provision for seeking leave to appeal is in  order to ensure that no frivolous appeals are  filed against orders of acquittal, as a matter of  course, but that does not enable the High  Court to mechanically refuse to grant leave by  mere cryptic or readymade observations, as in  this case ("the court does not find any error"),  with no further, on the face of it, indication of  any application of mind whatsoever. All the  more so, when the orders of the High Court are  amenable to further challenge before this  Court. Such ritualistic observations and  summary disposal which has the effect of, at  times, and as in this case, foreclosing  statutory right of appeal, though a regulated  one, cannot be said to be a proper and judicial  manner disposing of judiciously the claim  before courts. The giving of reasons for a  decision is an essential attribute of judicial  and judicious disposal of a matter before  courts, and which is the only indication to  know about the manner and quality of exercise  undertaken, as also the fact that the court  concerned had really applied its mind. All the  more so, when refusal of leave to appeal has  the effect of foreclosing once and for all a scope  for scrutiny of the judgment of the trial court  even at the instance and hands of the first  appellate court. The need for recording reasons  for the conclusion arrived at by the High  Court, to refuse to grant leave to appeal, in our  view, has nothing to do with the fact that the  appeal envisaged under Section 378 Cr.P.C is  conditioned upon the seeking for and  obtaining of the leave from the court. This  Court has repeatedly laid down that as the  first appellate court the High Court, even while  dealing with an appeal against acquittal, was  also entitled, and obliged as well, to scan  through and if need be reappreciate the entire  evidence, though while choosing to interfere  only the court should find an absolute  assurance of the guilt on the basis of the  evidence on record and not merely because the  High Court could take one more possible or a  different view only. Except the above, where  the matter of the extent and depth of  consideration of the appeal is concerned, no  distinctions or differences in approach are  envisaged in dealing with an appeal as such  merely because one was against conviction or  the other against an acquittal."

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                                 (Underlined for emphasis)

6.      In view of the fact that the High Court’s conclusion is  clearly presumptuous and the mere claim that a telegram was  sent by a relative of Chandesh Ravat the deceased- accused,  same could not have been a ground to hold that the  prosecution version was unacceptable and the trial Court had  rightly directed acquittal.  

7.      Learned counsel for the respondent on the other hand  submitted that not only on the ground of a telegram but also  on other grounds, the High Court upheld the view of the trial  Court.

8.      A bare reading of the impugned order which is  reproduced above goes to show that the only ground on which  the High Court found that there was no scope for interference  was the telegram sent by a relative.  Various other factors  which throw light on the controversy have not been considered  in the proper perspective by the High Court. The effect of the  evidence of the two victims and the recovery of part of the  recovered amount has been completely lost sight of. It is to be  noted that contrary to what the trial Court and the High Court  noted, the seized recovery notes clearly show the stamp of the  bank from where the money was withdrawn. The relevance of  this factor has been completely lost sight of by the trial Court  and the High Court.  

9.      That being so, we set aside the impugned order of the  High Court and remit the matter to it for consideration in  accordance with law.  

10.     The appeal is allowed.