REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.   1354        OF 2008

(Arising out of SLP (Crl.) No. 4503 of 2006)

State of Himachal Pradesh  ....Appellant

Versus

Sardara Singh ....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 learned

Division  Bench  of  the  Himachal  Pradesh  High  Court

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dismissing  the  application  filed  by  the  State  in  terms  of

Section 378(3)  of  the  Code  of  Criminal  Procedure,  1973 (in

short the ‘Code’).  The application was dismissed summarily

by simply stating “Dismissed”.

3. The  respondent  faced  trial  for  alleged  commission  of

offences punishable under Section 15 of the Narcotic Drugs

and Psychotropic Substances Act,  1985 (in short the ‘NDPS

Act’).

4. The trial court directed acquittal on the ground that the

evidence  of  the  official  witnesses  cannot  be  accepted  and

accordingly the acquittal was recorded.  The application under

Section 378 was filed  which as noted  above  was dismissed

summarily.

5. Learned  counsel  for  the  appellant  submitted  that  the

manner  of  disposal  of  the  application  is  contrary  to  the

decisions of this court in a large number of cases.   

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6. Learned counsel for the respondent submitted that there

is  no merit  in the case  and,  therefore,  the  High Court  was

justified in rejecting the application for grant of leave.

7. Section 378 (3) of the Cr.P.C. deals with the power of the

High Court to grant leave in case of acquittal. Section 378 (1)

and (3) of the Cr.P.C. as it stood then, reads as follows:

“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”.

8. The  trial  Court  was  required  to  carefully  appraise  the

entire  evidence  and  then  come  to  a  conclusion.  If  the  trial

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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  primary

ground  for  acquittal  seems  to  be  that  the  alleged  eye-

witnesses did not support the prosecution case and, therefore,

their presence is doubtful. 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

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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’).    

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9. 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.  

10. These  aspects  were  highlighted  in  State  of  Punjab v.

Bhag Singh (2004(1) SCC 547)

11. In  view  of  the  principles  set  out  above  it  would  be

appropriate to direct the High Court to grant leave as grounds

raised are not without substance.

12. Appeal is allowed.

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

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

New Delhi August 27, 2008

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