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CASE NO.: Appeal (crl.)  1166 of 1997

PETITIONER: State of Orissa                                                  

RESPONDENT: Dhaniram Luhar                                                   

DATE OF JUDGMENT: 04/02/2004

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT,J.

       The State of Orissa questions legality and propriety of  the order by which a learned Single Judge of Orissa High  Court rejected the prayer seeking leave to appeal under  Section 378 (3) of the Code of Criminal Procedure, 1973 (in  short ’the Code’). Following is the order passed on  1.2.1996:

               "Leave to appeal is refused."

The State sought leave to appeal against the order  passed by learned S.D.J.M., Nuapada, holding that the  respondent Dhaniram Luhar (hereinafter referred to as ’the  accused’) was not guilty of offences punishable under  Section 27(1)(a) of the Orissa Forest Act, 1972 (in short  ’the Act’).

Stand of the prosecution was that the respondent- accused had encroached about 5 acres of land for the purpose  of cultivation in the Patidanger reserved forest. The  official witnesses had deposed that the respondent-accused  had encroached the land inside the aforesaid reserved forest  within Sunabeda Wild Life Sanctuary and also produced sketch  map of the plot under occupation of the accused.  It is an  accepted position that the accused in his statement under  Section 313 of the Code had admitted encroachment of  Government land.  Learned S.D.J.M. held that mere acceptance  of encroachment was not sufficient for the purpose of  finding him guilty. He held that the authentic copy of the  notification purported to have been issued under Section 21  of the Act was required to be filed which had not been done.  He further observed that since the notification was not  filed, and the procedures prescribed under Sections 21 and  22 were not complied, the respondent-accused was entitled to  acquittal. As noted above, the State prayed for grant of  leave against acquittal which was rejected by the impugned  order. According to it, the Trial Court had erroneously  analysed the evidence and did not apply correct principles  of law.

Mr. J.K. Das, learned counsel appearing for the  appellant-State submitted that the High Court was required

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to indicate reasons for refusal to grant leave.  By a non- reasoned order the same should not have been rejected;  particularly, when questions of public importance and  substantial questions of law were involved.  The accused- respondent has not appeared in spite of service.           

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 of the Code deals with the  power of the High Court to grant leave in case of acquittal.  Sub-sections (1) and (3) of Section 378 read 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".

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 effect of the admission of the accused in  the background of testimony of official witnesses and the  documents exhibited 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.

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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’).    

Reason is the heartbeat of every conclusion, and  without the same it becomes lifeless.  (See Raj Kishore Jha  v. State of Bihar and Ors. (2003 (7) Supreme 152).

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 ICR 120)(NIRC) 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. The "inscrutable face of a sphinx" is  ordinarily incongruous with a judicial or quasi-judicial  performance.  

The above position was highlighted by us in State of  Punjab v. Bhag Singh (2004 (1) SCC 547).

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.