REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  1549      OF 2008 (Arising out of S.L.P. (Crl.) No.1546 of 2007

State of Himachal Pradesh …..Appellant

Versus

Manoj Kumar @ Chhotu  ….Respondent  

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a Division

Bench of  the  Himachal  Pradesh  High  Court  dismissing  the

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application  filed  in  terms  of  Section  378(3)  of  the  Code  of

Criminal  Procedure,  1973  (in  short  the  ‘Code’).  The

respondent  faced  trial  for  alleged  commission  of  offence

punishable  under  Sections  376/511 and 506  of  the  Indian

Penal Code, 1860 (in short ‘IPC’).  The Trial Court found that

the  accusations  were  not  established  and  directed  his

acquittal giving him the benefit of doubt.  An application for

grant of leave in terms of Section 378 of the Code was filed

which was dismissed summarily stating “Dismissed”.

3. 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.

4. 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) read as follow:

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“378(1)  Save  as  otherwise  provided  in  sub- section  (2)  and  subject  to  the  provisions  of sub-sections (3) and (5),-

(a)  the  District  Magistrate  may,  in any case, direct  the  Public  Prosecutor  to  present  an Appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;

(b)  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 an acquittal passed by any Court other than a High Court [not being an order under clause (a)] or an order of acquittal passed by the Court of Session in revision.

(2)  If  such an order of acquittal is passed in any  case  in  which  the  offence  has  been investigated  by  the  Delhi  Special  Police Establishment  constituted  under  the  Delhi Special Police Establishment Act, 1946 (25 of 1946)  or  by  any other  agency  empowered  to make investigation into an offence under any Central  Act  other  than  this  Code,  3  [the Central  Government  may,  subject  to  the provisions  of  sub-section  (3),  also  direct  the Public Prosecutor to present an Appeal-- (a)  to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence; (b)  to  the  High  Court  from  an  original  or appellate order of an acquittal passed by any Court other than a High Court [not being an order under clause (a)] or an order of acquittal passed by the Court of Session in revision.

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

5. 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 the 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 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

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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

amendable  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)  SC  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 recognised as imperative.  The view was reiterated 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’).

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6. 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 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.

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The “inscrutable  face of a sphinx”  is  ordinarily  incongruous

with a judicial or quasi-judicial performance.

7. 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

respondent hear the appeal  and dispose  it of in accordance

with  law,  uninfluenced  by  any  observation  made  in  the

present appeal. The appeal is allowed to the extent indicated.

……………………….…………..J. (Dr. ARIJIT PASAYAT)

……………………………….…..J. (Dr. MUKUNDAKAM SHARMA)

New Delhi September 29, 2008

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