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 Reportable  

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 2031  2012 [Arising out of SLP (CRL.) No. 9775 of  2012 [(CRL.M.P. NO. 24427 of  2012)]

Kumari Shaima Jafari       ….. Appellant

Versus

Irphan @ Gulfam and Ors.     …  Respondents  

J U D G M E N T

Dipak  Misra, J.

[CRL.M.P. NO. 24427  OF  2012]

This  is  an  application  for  grant  of  permission  to  file  

Special Leave Petition under Article 136 of the Constitution

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of India for assailing the judgment and order dated 4.7.2012  

passed  in  Government  Appeal  No.  3432  of  2011  by  the  

Division Bench of the High Court of Judicature at Allahabad,  

whereby the Bench declined to entertain the appeal directed  

against the judgment of acquittal rendered by the learned  

Additional Sessions Judge, Kanpur Nagar in S.T. No. 944 of  

2007  wherein  the  accused  persons  faced  trial  for  the  

offences punishable under Sections 363, 366, 328, 323, 506,  

368 and 376(2)(g) of the Indian Penal Code (for short “the  

IPC”).     

2. On a perusal of the material on record, there cannot be  

any dispute that the appellant was the complainant and the  

real aggrieved party.  Being aggrieved by the decision of the  

High Court, she has sought permission to prefer the special  

leave  petition.   Regard  being  had  to  the  essential  

constitutional concept of jurisdiction under Article 136 of the  

Constitution of India as has been stated in Arunachalam v.  

P.S.R.  Sadhanantham1 and  the  pronouncement  by  the  

Constitution  Bench  in  P.S.R.  Sadhanantham  v.  

1 (1979) 2 SCC 297

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Arunachalam2  where  the  assail  was  to  the  decision  in  

Arunachalam  (supra)  under  Article  32,  we  allow  the  

application and permit the applicant to prosecute the Special  

Leave Petition. The Crl.M.P. No. 24427 of 2012 is accordingly  

disposed of.  

3. Leave granted.

4. The  spinal  issue  that  has  spiralled  to  this  Court  is  

whether  the  appeal  preferred  by  the  Government  

questioning  the  legal  substantiality  of  the  judgment  of  

acquittal  could have been dismissed by the High Court in  

such a manner as it has been done.     

5. At  this  juncture,  it  is  apposite  to  state  that  the  

complainant had filed Appeal No. 1674 of 2011 which has  

also  been  dismissed  by  another  Division  Bench  on  the  

foundation that when the Government Appeal had already  

met  its  fate  of  dismissal,  there  was  no  justification  to  

entertain the said appeal.  No fault can be found in the order  

passed  by  the  Division  Bench  dealing  with  the  appeal  

preferred by the complainant as that  cannot survive after  2 (1980) 3 SCC 141

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the Coordinate Bench had given the stamp of imprimatur to  

the judgment of acquittal passed by the learned trial Judge  

in  the  Government  Appeal.   Hence,  the  prayer  has  been  

restricted  and,  rightly  so,  by  the  learned  counsel  for  the  

appellant  to  the  assail  of  the  judgment  passed  in  the  

Government Appeal.

6. To  dwell  upon  the  seminal  issue,  it  is  seemly  to  

reproduce the judgment passed by the High Court in appeal.  

It reads thus: -

“The learned trial  Judge has discussed  elaborately  the  evidence  of  PW1,  the  prosecutrix, which appears at pages 12  to  20  of  the  judgment  in  the  light  of  submissions of the defence and we are  satisfied  that  it  could  not  be  a  case  under any of the sections for which the  accused  had  been  charged  and  tried.  The  judgment  herein  suffers  from  no  perversity  and,  as  such,  the  appeal  is  dismissed.”

7. It is urged by Mr. Shakil Ahmed Syed, learned counsel  

for  the complainant-appellant,  that  it  is  obligatory on  

the part of the High Court while dealing with an appeal  

to  ascribe  reasons and not  to  dismiss  it  in  a  cryptic  

manner.   He  would  further  submit  that  reference  to  

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certain paragraphs of the judgment of the trial  Court  

would not clothe the decision of the High Court to be  

reflective  of  appreciation  and  reason  but,  on  the  

contrary, it would still be an apology for reason which  

the law does not countenance.

8. The issue that emerges for consideration is whether the  

aforesaid delineation by the High Court in appeal can  

be treated to be informed with reason. At this stage, we  

think it apt to refer to certain authorities of this Court  

where there has been illumined enunciation of law as  

regards the duty of the High Court while dealing with  

criminal  appeals,  whether  it  may  be  an  appeal  

preferred by the Government or an application for leave  

to appeal by the complainant against the judgment of  

acquittal.

9. In  State of  Uttar  Pradesh v.  Jagdish  Singh and  

Others3,  a three-Judge Bench, while dealing with the  

role  of  the  High  Court  at  the  time  of  disposal  of  a  

criminal appeal, stated thus: - 3 1990 (Supp) SCC 150

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“This Court has observed before, in more  than one case, that when the High Court  disposes  of  a  criminal  appeal  it  should  set  forth  the  reasons,  even  though  briefly,  in  its  order.   That  is  a  requirement necessitated by the plainest  considerations  of  justice.   We  are  constrained to remark that the repeated  observations  of  this  Court  have  not  received  the  attention  which  they  deserve.  The impugned order before us  does not disclose the reasons for making  it.  We trust that it will not be necessary  for us to make these observations in any  future case.”

10. In  State  of  U.P.  v.  Haripal  Singh  and  Another4  

while  laying  emphasis  on  ascribing  of  reasons  while  

disposing a criminal appeal, a two-Judge Bench has opined  

thus: -

“It appears that the appeal was preferred  by the State of Uttar Pradesh against the  order  of  acquittal  dated  24-5-1989  passed  by  the  Special  Sessions  Judge,  Pilibhit in Case No. 153 of 1986. The said  sessions  case  was  filed  against  the  respondent-accused  under  Section  302  read with Sections 307 and 34 IPC. The  leave  application  was  dismissed  summarily without indicating any reason  and the consequential order of dismissal  of  appeal  was  also  passed  without  indicating  any  reason.  It  is  really  unfortunate that the appeal was disposed  

4 (1998) 8 SCC 747

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of without giving any reason whatsoever.  On 26-4-1988, against a similar order of  dismissal  in  limine  passed  by  the  Allahabad High Court in  State of U.P. v.  Jagdish  Singh1 (an  appeal)  was  moved  before  this  Court  and  a  three  Judges'  Bench  of  this  Court  deprecated  such  order  disposing  of  the  appeal  without  giving  any  reason.  Unfortunately,  a  similar improper order has been passed  in this case. To say the least, it is a sorry  state of affairs. We, therefore, allow this  appeal, set aside the order of dismissal of  the appeal in limine and send the matter  back to the High Court with a direction to  dispose of the matter within a period of  four months from the date of receipt of  this order.”

11. Yet  again,  in  Narendra  Nath  Khaware  v.  

Parasnath  Khavare  and Others5,  this  Court  had  the  

occasion to deal with such a situation.  In that context, the  

Court observed thus: -

“We  are  constrained  to  observe  a  growing tendency with the High Courts in  disposing  of  Criminal  Appeals  involving  vexed  questions  of  law  and  fact  in  cursory  manner  without  going  into  the  facts and the questions of law involved in  the  cases.  May  be  this  approach  is  gaining  ground  on  account  of  huge  pendency of cases. But such a summary  disposal is no solution to the problem of  arrears  of  cases  in  courts.  Disposal  of  

5 (2003) 5 SCC 488

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appeals where the High Court is the first  court of appeal in such a manner results  in denial of right of appeal to the parties.  So long as the statute provides a right of  appeal,  in  our  view  the  court  will  be  failing in its duty if the appeal is disposed  of in such a casual and cavalier manner  as  the  High  Court  has  done  in  the  present case.”

12. Be  it  noted,  in  the  above-referred  case,  an  appeal  

against acquittal was preferred by the State of Bihar and the  

High Court had dismissed the appeal by stating that it was  

clear  from  the  perusal  of  the  record  that  the  witnesses  

named  in  the  fardbayan  had  not  been  examined  by  the  

prosecution and also the witnesses examined in Court were  

examined by the police after eight months after the date of  

occurrence.   The  High  Court  had  also  stated  that  the  

investigating  officer  had  not  been  examined.   The  said  

deliberation was treated to be unsatisfactory and, if fact, not  

appreciated by this Court.

13. From the  aforesaid  pronouncements,  it  is  graphically  

clear that the deliberation by the High Court while exercising  

criminal  appellate  jurisdiction  has  to  be  reflective  of  due  

cogitation  and  requisite  rumination.   It  must  reflect  

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application  of  mind,  consideration  of  facts  in  proper  

perspective  and  appropriate  ratiocination  either  for  

affirmation  or  reversal  of  the  judgment.   The  reasons  

ascribed  may  not  be  lengthy  but  it  should  be  cogent,  

germane and reflective.  It is to be borne in mind, to quote  

from Wharton’s Law Lexicon: -

“The  very  life  of  law,  for  when  the  reason  of  a  law  once  ceases,  the  law  itself generally ceases, because reason  is the foundation of all our laws.”    

14. This Court, in Raj Kishore Jha v. State of Bihar and  

others6 and State of Orissa v.  Dhaniram Luhar7,  had  

held that “reason” is the heartbeat of every conclusion and  

without the same,  it  becomes lifeless.   It  is  dangerous to  

forget  that  reason is  the  essential  foundation  on which  a  

conclusion can be based.  Giving reasons for an order is the  

sacrosanct  requirement  of  law  which  is  the  aim of  every  

civilized society.  And intellect respects it.  It would not be  

out  of  place  to  state  here  that  the  reasons  in  criminal  

jurisprudence must flow from the material on record and in  

this regard, a line from Bossuet is worth reproducing: - 6 JT (2003) Supp 2 SCC 354 7 JT (2004) 2 SC 172

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“The heart has reasons that reason does  not understand.”

We have said so as a Judge should not be guided by any kind  

of emotion, prejudice or passion while giving his reasons.  

15. At this juncture, it may be instructive to sit in a Time  

Machine and have a look at what our “Shastras” have stated  

about the role of an adjudicator.  While describing the role of  

a Judge, it has been stated thus:-  

“Vivaade  pruchhati  pprasnam  pratiprasnam  tathaiva cha  

 Nyayapurvancha vadati  pradvivaaka iti smrutah.”

The free English translation of the same would be that  he  

who puts questions and counter questions (to petitioner and  

respondent)  in  a  dispute  and  gives  his  concluding  

observations is called ‘Praadvivaakah’ or a Judge.

16. In certain ancient texts while describing a Judge, it has  

been laid down that a Judge is also called a ‘vivaakah’ i.e. he  

who considers the matter from legal spectrum after applying  

his mind. Be it noted ‘vivek’ means conscience. In another  

place  in  smritis it  has  been  said  that  adjudicator  has  to  

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decide the dispute with great care and caution after patient  

hearing.   

17. A Judge in the times of yore in this country was wedded  

to Dharma.  We are not going to delve into the connotative  

expanse of the term “Dharma”.  In one context, it has been  

stated that Dharma is not a thing that can be determined by  

any person as per his whim.  Thus, personal whim or for that  

matter any individual notion has no place while doing an act  

of justice which is a facet of Dharma.  In Nyaya Shastras,  

there  is  reference  to  the  methodology  of  inference which  

involves a combination and inductive and deductive logic.  

The logic, as is understood, means :-   

“The science of right reasoning or the science  of discussion.”      

18. We have referred to the aforesaid concepts solely for  

the purpose that even the ancient wisdom commanded that  

the decision has to be founded on reasons.  

19. Coming to the judgment passed by the High Court, it is  

clear  as  a  cloudless  sky  that  it  does  not  show  any  

contemplation  or  independent  application  of  mind  as  

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required of an appellate Court.  Reference to the trial Court  

judgment in such a manner would not clothe the judgment  

to be reflective of reasons or indicative of any analysis.  It  

does  not  require  Solomon’s  wisdom  to  state  that  it  is  

absolutely  sans  reasons,  bereft  of  analysis  and  shorn  of  

appreciation.  Thus viewed, this Court has no other option  

but to overturn the same and send the appeal for re-hearing  

to the High Court and we so do.   

20. Resultantly,  the  appeal  is  allowed  and  the  judgment  

passed by the High Court in Government Appeal No. 3432 of  

2011 is set aside and the appeal is remitted for re-hearing  

by the High Court.   

……………………………….J. [K. S. Radhakrishnan]

……………………………….J.                                            [Dipak Misra]

New Delhi; December 11, 2012

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