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CASE NO.: Appeal (crl.)  971 of 2006

PETITIONER: Suga Ram @ Chhuga Ram

RESPONDENT: State of Rajasthan & Ors.

DATE OF JUDGMENT: 18/09/2006

BENCH: ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No. 5630 of 2005)

ARIJIT PASAYAT, J.

       Leave granted.

       This appeal is by the informant questioning correctness  of the order passed by a Division Bench of the Rajasthan High  Court at Jodhpur dismissing the revision application filed by  the appellant under Section 397 read with Section 401 of the  Code of Criminal Procedure, 1973 (in short the Cr.P.C.)  questioning legality and correctness of the order of acquittal  passed by the trial court in respect of respondent Nos. 2 to  5.   The said respondents faced trial for alleged commission of  offences punishable under Sections 148 and 302 read with  Section 149 of the Indian Penal Code, 1860 ( in short the ’IPC’)   and Section 3(2) of the Scheduled Castes and Scheduled  Tribes (Prevention of Atrocities ) Act, 1989 ( in short the  ’Atrocities Act’).  By judgment dated 22.6.2004 the trial court  i.e. Special Judge Scheduled Castes and Scheduled Tribes  (Prevention of Atrocities) Balotra, District Badmer, Rajasthan  held the accused persons to be not guilty and directed their  acquittal.  State of Rajasthan filed application in terms of  Section 378 (3) Cr.P.C. for grant of leave to appeal.  By order  dated 29.4.2005 the said application was rejected. Much  before on that date i.e. on 20.9.2004, the appellant had filed  an application for revision of the order of acquittal. As noted  above, by the impugned order the High Court dismissed the  revision application on the ground that the State’s application  for grant of leave has been dismissed and therefore the  revision petition was not entertainable.

       In support of the appeal learned counsel for the appellant  submitted that the High Court had summarily rejected the  application for grant of leave filed by the State.  The order was  a non-reasoned, cryptic one and is not sustainable in view of  what has been stated by this Court in several cases.  In any  event, this revision application has been filed earlier, and that  should have taken up along with the application for grant of  leave.  The revision application filed by the appellant cannot be  treated as infructuous and not entertainable merely because  State’s application for grant of leave has been rejected.  According to learned counsel for the appellant it was

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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.

       Learned counsel for the respondent Nos. 2 to 5 submitted  that the special leave petition is not maintainable.  The  application for revision was not maintainable, in view of the  fact that the prayer in the said petition was to direct  conviction.  Section 397 Cr.P.C. stipulates that only retrial can  be directed and an order of acquittal cannot be converted to  one of conviction in an application filed by the complainant.

 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. 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".

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 primary ground  for acquittal seems to be that the eye-witnesses did not make  any effort to save the deceased 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 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

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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 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.  

       These aspects were highlighted in State of Punjab v.  Bhag Singh (2004(1) SCC 547)

       Respondents Nos. 2 to 5 have questioned locus standi of  the appellant to file the appeal.  

A doubt has been raised in many cases about the  competence of a private party as distinguished from the State,  to invoke the jurisdiction of this Court under Article 136 of the  Constitution against a judgment of acquittal by the High  Court. We do not see any substance in the doubt. Appellate  power vested in this Court under Article 136 of the  Constitution is not to be confused with ordinary appellate  power exercised by appellate courts and appellate tribunals  under specific statutes. It is a plenary power, ’exercisable  outside the purview of ordinary law’ to meet the pressing  demands of justice (See Durga Shankar Mehta v. Thakur  Raghuraj Singh (AIR 1954 SC 520). Article 136 of the  Constitution neither confers on anyone the right to invoke the  jurisdiction of this Court nor inhibits anyone from invoking  the Court’s jurisdiction. The power is vested in this Court but  the right to invoke the Court’s jurisdiction is vested in no one.  The exercise of the power of this Court is not circumscribed by  any limitation as to who may invoke it. Where a judgment of  acquittal by the High Court has led to a serious miscarriage of  justice this Court cannot refrain from doing its duty and  abstain from interfering on the ground that a private party and  not the State has invoked the Court’s jurisdiction. We do not  have slightest doubt that we can entertain appeals against  judgments of acquittal by the High Court at the instance of  interested private parties also. The circumstance that the Code  does not provide for an appeal to the High Court against an  order of acquittal by a subordinate Court, at the instance of a  private party, has no relevance to the question of the power of  this Court under Article 136. We may mention that in Mohan  Lal v. Ajit Singh (1978 (3) SCC 279) this Court interfered with

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a judgment of acquittal by the High Court at the instance of a  private party. An apprehension was expressed that if appeals  against judgments of acquittal at the instance of private  parties are permitted there may be a flood of appeals. We do  not share the apprehension. Appeals under Article 136 of the  Constitution are entertained by special leave granted by this  Court, whether it is the State or a private party that invokes  the jurisdiction of this Court, and special leave is not granted  as a matter of course but only for good and sufficient reasons,  well established by the practice of this Court.                            Above was the view expressed by this Court in  Arunachalam v. P.S.R. Sadhanantham and Anr. (1979 (2) SCC  279). The view has again been reiterated by the Constitution  Bench in P.S.R. Sadhanantham v. Arunachalam and Anr.  (1980 (3) SCC 141).

       It is to be seen whether the broad spectrum spread out of  Article 136 fills the bill from the point of view of "procedure  established by law". In express terms, Article 136 does not  confer a right of appeal on a party as such but it confers a  wide discretionary power on this Court to interfere in suitable  cases. The discretionary dimension is considerable but that  relates to the power of the Court. Article 136 is a special  jurisdiction. It is residuary power; it is extraordinary in its  amplitude, its limits, when it chases injustice, is the sky itself.  This Court functionally fulfils itself by reaching out to injustice  wherever it is and this power is largely derived in the common  run of cases from Article 136. Is it merely a power in the court  to be exercised in any manner it fancies? Is there no  procedural limitation in the manner of exercise and the  occasion for exercise? Is there no duty to act fairly while  hearing a case under Article 136, either in the matter of grant  of leave or, after such grant, in the final disposal of the  appeal? There cannot be even a shadow of doubt that there is  a procedure necessarily implicit in the power vested in this  Court. The founding fathers unarguably intended in the very  terms of Article 136 that it shall be exercised by the judges of  the highest Court of the land with scrupulous adherence to  settled judicial principles, well established by precedents in  our jurisprudence.                   It is manifest that Article 136 is of composite structure, is  power-cum-procedure - power in that it vests jurisdiction in  this Court and procedure in that it spells a mode of hearing.  

       These aspects were highlighted in Esher Singh v. State of  A.P. (2004 (11) SCC 585).  

       Unfortunately it does not appear to have been brought to  the notice of the High Court that the complainant’s revision  petition was pending challenging the acquittal when the  application for grant of leave to appeal was taken up.  The  ideal situation would have been to hear both the applications  together.   

In view of the principles set out above it would be  appropriate to direct the High Court to hear both the  applications for grant of leave as filed by the State and the  revision application filed by the informant i.e. D.B. Criminal  Revision No. 667 of 2004 and D.B. Criminal Leave to Appeal  No. 300 of 2004 together. Needless to say that the applications  are to be considered in accordance with law.

       Appeal is allowed to aforesaid extent.