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Reportable 1

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  319      OF 2013 (Arising out of S.L.P. (Crl.) No. 1374  of 2013)

Criminal M.P. No. 2088 of 2013

State of Madhya Pradesh ...  Appellant

Versus

Giriraj Dubey               ..Respondent

J U D G M E N T

Dipak Misra, J.

Leave granted.

2. Questioning the assailability and substantiality of the  

order dated 4.7.2012 passed by the Division Bench of  

the High Court of Judicature of Madhya Pradesh at  

Gwalior  in  M.Cr.C.  No.  1835  of  2012  whereby  the

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High Court has declined to grant leave to the State to  

prefer  an appeal  against  the judgment of  acquittal  

dated  2.12.2011  passed  by  the  learned  Sessions  

Judge, Bhind in Sessions Trial No. 193 of 2010, the  

present appeal by special leave has been preferred.

3. Shorn  of  unnecessary  details,  the  facts  which  are  

requisite to be stated are that on the basis of an FIR  

lodged by the complainant, the investigating agency  

laid  a  charge-sheet  before  the  competent  court  

against  the  accused-respondent  for  the  offences  

punishable under Sections 294 and 436 of the Indian  

Penal  Code  (for  short  “the  IPC”).   The  learned  

Magistrate,  on  receipt  of  the  charge-sheet,  

committed the matter to the Court of Session.  The  

learned  Sessions  Judge,  by  his  judgment  dated  

2.12.2011,  acquitted  the  respondent  herein  of  the  

charge on the foundation that there was no witness  

to the occurrence of the crime and further PW-2, the  

wife  of  the  complainant,  could  not  tell  the  exact  

abuses hurled at her by the accused respondent.  In  

the  application  seeking  leave  to  appeal,  many  a  

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ground  was  urged  challenging  the  judgment  of  

acquittal.  The Division Bench of the High Court, by  

the  impugned  order,  referred  to  the  trial  court  

judgment  and  opined  that  the  trial  court,  after  

appreciation of the evidence on record, has opined  

that the prosecution has failed to prove the offence  

against  the  respondent  beyond  reasonable  doubt  

inasmuch  as  there  was  not  adequate  evidence  to  

substantiate the charges against the respondent and,  

hence,  there  was  no  legality  in  the  judgment  of  

acquittal.

4. Mr. Samir Ali Khan, learned counsel for the State, has  

raised  a  singular  contention  that  the  High  Court,  

while declining to grant leave to appeal,  has really  

not  ascribed any reason whatsoever  and what  has  

been stated in the impugned order does not remotely  

reflect any reason, for the High Court has only stated  

that  the  prosecution  has  failed  to  establish  the  

offence  against  the  respondent  by  adducing  

adequate  evidence.   It  is  urged  by  him  that  it  is  

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obligatory  on  the  part  of  the  High  Court  to  give  

reasons while dismissing the application for leave.

5. To  appreciate  the  aforesaid  submission,  we  have  

bestowed  our  anxious  consideration  and  carefully  

perused the order  passed by the High Court.   The  

High Court has only stated that the trial court, after  

appreciation  of  the  evidence,  had  found  that  the  

prosecution  had  failed  to  establish  the  offence  

against the respondent and, hence, the judgment of  

acquittal did not suffer from infirmity.  We are afraid  

that such an order cannot be said to be a reasoned  

order.  On the contrary, such an order is, irrefragably,  

cryptic and clearly shows non-application of mind.   

6. It  needs  no  special  emphasis  to  say  that  while  

dealing with an application for leave to appeal, it is  

obligatory  on  the  part  of  the High  Court  to  assign  

reasons.  In  State of Maharashtra  v.  Vithal Rao  

Pritirao  Chawan1,  this  Court  has  observed  as  

follows: -

1 (1981) 4 SCC 129

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“If we would have had the benefit of the  view of the learned Judge of the High Court  who refused to grant leave on the question  as to how he came to the conclusion that  the  transfer  of  the  charge  by  making  necessary entry in the cash book of cash  handed  over  to  the  accused  does  not  constitute entrustment, we would certainly  have been able to examine the correctness  of the view.”

After so stating, the two-Judge Bench opined that it  

would be for the benefit of this Court that a speaking order  

is passed.

7. In State of Orissa v. Dhaniram Luhar2, this Court,  

while dealing with an order of refusal to grant leave  

by  the  High  Court  without  ascribing  any  reason,  

expressed that when the High Court refuses to grant  

leave without giving any reasons, a close scrutiny of  

the order  of  acquittal,  by the appellate forum, has  

been  lost  once  and  for  all.   The  two-Judge  Bench  

proceeded to express thus: -

“The  manner  in  which  appeal  against  acquittal has been dealt with by the High  Court leaves much to be desired.  Reasons  

2 (2004) 5 SCC 568

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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.”

It is worth noting that in the said case, this Court has  

observed that reason is the heartbeat of every conclusion  

and without the same, it becomes lifeless.

8. In  State of Rajasthan v. Sohan Lal and others3,  

after  referring  to  the  case  of  Dhani  Ram  Luhar  

(supra),  it  has  been  ruled  that  the  provision  for  

seeking leave to appeal is to ensure that no frivolous  

appeals are filed against judgments of acquittal, as a  

matter of course, but that does not enable the High  

Court to mechanically refuse to grant leave by mere  

cryptic or readymade observations, pointing out that  

the court does not notice any infirmity in the order.  

Emphasis was laid on the factum that the orders of  

the  High  Court  are  amenable  to  further  challenge  

before  this  Court  and,  therefore,  such  ritualistic  3 (2004) 5 SCC 573

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observations  and  summary  disposal  which  has  the  

effect  of,  at  times,  as  in  certain  cases,  foreclosing  

statutory right of appeal cannot be said to be proper.  

The Court further opined that giving of reasons for a  

decision  is  an  essential  attribute  of  judicial  and  

judicious disposal  of  the matter  before courts,  and  

also the only indication to know about the manner  

and quality of the exercise undertaken, as also the  

fact that the court concerned had really applied its  

mind.

9. In  State of Uttar Pradesh  v.  Ajai Kumar4,  after  

referring to the decisions in  Sohan Lal  (supra) and  

Dhani Ram Luhar (supra), the principle for the need  

to give reasons was reiterated.

10. Yet  in  another  pronouncement  in  State  of  

Maharashtra  v.  Sujay  Mangesh  Poyarekar5,  a  

two-Judge  Bench  reproduced  the  order  where  the  

High  Court  had  opined  that  the  trial  court  had  

4 (2008) 3 SCC 351 5 (2008) 9 SCC 475

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appreciated the evidence properly and its judgment  

could not be said to be perverse and, on that score,  

declined  to  interfere.   In  that  context,  this  Court  

referred  to  the  language  employed  under  Section  

378(3) of the Code of Criminal Procedure and stated  

that if the State is aggrieved by an order of acquittal  

recorded  by  a  Court  of  Session,  it  can  file  an  

application for leave to appeal, as required by sub-

section  (3)  of  Section  378  of  the  Code,  and  the  

appeal  can only  be registered after  grant  of  leave  

and heard on merits.  After so stating, the two-Judge  

Bench proceeded to lay down as follows: -

“20. In  our  opinion,  however,  in  deciding  the  question  whether  requisite  leave  should or should not be granted, the High  Court  must  apply  its  mind,  consider  whether a prima facie case has been made  out  or  arguable  points  have  been  raised  and  not  whether  the  order  of  acquittal  would or would not be set aside.

21. It cannot be laid down as an abstract  proposition of law of universal application  that each and every petition seeking leave  to  prefer  an  appeal  against  an  order  of  acquittal recorded by a trial court must be  allowed by the appellate court and every  appeal must be admitted and decided on  

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merits.  But it also cannot be overlooked  that  at  that  stage,  the  court  would  not  enter  into  minute  details  of  the  prosecution  evidence  and  refuse  leave  observing  that  the  judgment  of  acquittal  recorded  by  the  trial  court  could  not  be  said to be “perverse” and, hence, no leave  should be granted.”

11. Elaborating further,  the Court  observed that  where  

there is  application of  mind by the appellate court  

and reasons (may be in brief) in support of such view  

are recorded, the order of the court may not be said  

to  be  illegal  or  objectionable.   A  clarification  was  

given  that,  however,  if  arguable  points  have  been  

raised  and  if  the  material  on  record  discloses  

necessity  of  deeper  scrutiny  and  reappreciation,  

review or reconsideration of evidence, the appellate  

court  must  grant  leave  as  sought  and  decide  the  

appeal on its merits.  In the said case, as the Bench  

noted, the High Court did neither.  Emphasis was laid  

on the failure on the part of the High Court to record  

reasons for refusal of such leave.

12. At this juncture, we are obliged to state that despite  

the clear law laid down by this Court, it has come to  

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our  notice that  the High Courts,  while  declining to  

grant  leave  against  the  judgments  of  acquittal,  do  

not indicate reasons for formation of such an opinion.  

In number of cases, anguish has been expressed.  It  

is the duty of every court to bear in mind that when a  

crime is committed, though an individual is affected  

or, on some occasions, a group of individuals become  

victims of the crime, yet in essentiality, every crime  

is  an offence against the collective as a whole.   It  

creates  a  stir  in  the  society.   The degree  may be  

different  depending  on  the  nature  of  the  offence.  

That makes the duty of the High Courts to see that  

justice  is  done to  the  sufferer  of  the  crime which,  

eventually, mitigates the cause of the collective and  

satisfies the cry of the society against the crime.  It  

does not necessarily mean that all windows remain  

constantly  open  for  all  kinds  of  cases  to  be  

entertained in appeal, but, while closing the windows,  

there has to be proper delineation and application of  

mind so that none would be in a position to say that  

the  order  epitomizes  “the  inscrutable  face  of  the  

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sphinx”.  The order has to reflect proper application  

of mind and such reflection of application of mind has  

to be manifest from the order itself.  Expression of an  

opinion founded on sound reasoning is like the light  

of the Sun.  Absence of reasons is comparable to use  

a  candle  when  the  sunlight  is  required.   We  may  

repeat at the cost of repetition that we have said so  

with  immense  pain  and  enormous  hope  that  

occasions should  not  arise  in  future  for  passing  of  

such  cryptic  and  unreasoned  orders.   It  should  be  

kept in mind that the judgments of this Court, being  

binding on all courts, are required to be followed in  

letter and spirit.  That is the constitutional mandate  

and that is the judicial discipline.

13. Consequently,  the  appeal  is  allowed,  the  order  

passed by the High Court is set aside and the matter  

is remitted to the High Court to pass a cogent and  

reasoned order relating to grant or refusal of leave.  

We may hasten to clarify that we have not expressed  

any opinion on the merits of the case.

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……………………………….J. [K. S. Radhakrishnan]

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

New Delhi; February 19, 2013

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