Page 1

Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 750 OF 2006

State of Rajasthan            Appellant(s)

VERSUS

Firoz Khan @ Arif Khan Respondent(s)

                 J U D G M E N T

Abhay Manohar Sapre, J.

1) This  appeal  is  filed  by  the  State  of  Rajasthan

against the final judgment and order dated 28.10.2005

passed by the High Court of Judicature for Rajasthan

at Jodhpur in D.B. Criminal Leave to Appeal No. 227

of 2005 whereby the Division Bench of the High Court

dismissed the application filed by the appellant herein

1

Page 2

seeking leave to file appeal under Section 378(3) of the

Criminal Procedure Code, 1973 (hereinafter referred to

as “the Code”)  against the judgment dated 13.08.2004

passed by the Sessions Judge, Jaisalmer in Sessions

Trial Case No. 48 of 2002.  

  2) Keeping in view the short point involved in the

appeal, it is not necessary to state the facts in detail

except  few  to  appreciate  the  grievance  of  the

appellant.

3) The respondent (accused) was prosecuted and

tried for commission of an offence of murder of one

Liley Khan aged around 11 years under Section 302

of  the Indian Penal Code, 1860 (hereinafter referred

to as “IPC”)  pursuant to lodging of FIR No 44/2002

in  Police  Station   Ramgarh,  District  Jaisalmer  in

Sessions Trial Case No. 48 of 2002 in the Court of

District  and  Sessions  Judge,  Jaisalmer.  The

2

Page 3

prosecution  adduced  evidence  in  support  of  their

case.

4) By  judgment  dated  13.8.2004,  the  Session

Judge on appreciating the evidence adduced by the

prosecution acquitted the respondent of the charge

of murder by giving him benefit of doubt.

5) The  State  of  Rajasthan,  felt  aggrieved  of

respondent's acquittal, filed application for leave to

appeal before the High Court under Section 378 (3)

of the Code.

6) By impugned order, the High Court declined to

grant leave and accordingly rejected the application

made by the State. It is against this order, the State

has filed this appeal by way of special leave petition.

7) Notice  of  lodgment  of  petition  of  appeal  was

served  on  the  respondent  but  despite  service  of

notice, the respondent has not appeared.

3

Page 4

8) Heard  learned  counsel  for  the  State  of

Rajasthan.

9) Learned  counsel  for  the  appellant-State  has

made only  one submission.  According to him, the

High  Court  while  dismissing  the  application  for

leave to appeal did not assign any reason and hence

the impugned order is rendered bad in law. It was

his  submission  that  there  were  several

discrepancies  and  errors  in  the  judgment  of  the

Sessions Judge against which the leave to appeal

was sought and, therefore, this was a fit case where

the High Court should have granted leave to appeal

for  further probing into  the case by the appellate

court.  In  support  of  his  submission,  he  placed

reliance on the decision of  this Court in  State of

Maharashtra  vs.  Sujay  Mangesh  Poyarekar,

(2008) 9 SCC 475.   

4

Page 5

10) We  are  inclined  to  agree  in  part  with  the

submission  urged  by  the  learned  counsel  for  the

appellant.

11) The  question  as  to  how  the  application  for

grant of leave to appeal made under Section 378 (3)

of  the Code should be decided by the High Court

and what are the parameters which the High Court

should keep in mind remains no more  res Integra.

This issue was examined by this Court in State of

Maharashtra  vs.  Sujay  Mangesh  Poyarekar

(supra).  Justice  C.K.  Thakker  speaking  for  the

Bench held in paras 19, 20, 21 and 24 as under:  

“19. Now, Section 378 of the Code provides for  filing  of  appeal  by  the State  in  case  of acquittal.  Sub-section  (3)  declares  that  no appeal “shall be entertained except with the leave  of  the  High  Court”.  It  is,  therefore, necessary for the State where it is aggrieved by an order of acquittal recorded by a Court of Session to file an application for leave to appeal  as  required  by  sub-section  (3)  of Section 378 of the Code. It is also true that an  appeal  can  be  registered  and  heard  on merits by the High Court only after the High Court  grants  leave  by  allowing  the

5

Page 6

application  filed  under  sub-section  (3)  of Section 378 of the Code. 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 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. 24. We may hasten to clarify that we may not be understood to have laid down an inviolable rule that no leave should be refused by the appellate court against an order of acquittal recorded  by  the  trial  court.  We  only  state that in such cases, the appellate court must consider  the  relevant  material,  sworn testimonies  of  prosecution  witnesses  and record reasons why leave sought by the State should  not  be  granted  and  the  order  of acquittal recorded by the trial court should not be disturbed. 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.  At  the same time, however, if arguable points have

6

Page 7

been  raised,  if  the  material  on  record discloses deeper scrutiny and reappreciation, review  or  reconsideration  of  evidence,  the appellate  court  must  grant  leave  as  sought and decide the appeal on merits. In the case on hand,  the High Court,  with respect,  did neither. In the opinion of the High Court, the case did not require grant of leave. But it also failed to  record  reasons for  refusal  of  such leave.”

12) Coming  now  to  the  facts  of  this  case,  it  is

apposite  to  reproduce  the  impugned  order  in

verbatim infra.

“Heard. No case for grant of leave is made out.   

Accordingly, the leave to appeal stands  dismissed.”

13) We are constrained to observe that  the High

Court grossly erred in passing the impugned order

without  assigning  any reason.   In  our considered

opinion, it was a clear case of total non application

of mind to the case by the learned Judges because

the order impugned neither sets out the facts nor

the submissions of the parties nor the findings and

nor the reasons as to why the leave to file appeal is

7

Page 8

declined to the appellant. We, therefore, disapprove

the casual approach of the High Court in deciding

the application, which in our view is against the law

laid  down by  this  Court  in  the  case  of  State  of

Maharashtra  vs.  Sujay  Mangesh  Poyarekar

(supra).

14) In  the  light  of  foregoing  discussion,  the

impugned order deserves to be set aside. The appeal

thus succeeds and is accordingly allowed and the

impugned order is set aside. The  case  is

remanded  to  the  High  Court  for  deciding  the

application made by the appellant for grant of leave

to appeal afresh on merits in accordance with law

keeping in view the law laid down by this Court in

State  of  Maharashtra  vs.  Sujay  Mangesh

Poyarekar (supra).

15) It is made clear that we have not applied our

mind to the merits of the case and remanded the

8

Page 9

case  having  noticed  that  it  was  an  unreasoned

order.  The High Court will accordingly decide the

application on merits  uninfluenced by  any of  our

observations made in this order.

16) Since  the  case  is  old,  we  request  the  High

Court  to  decide  the  matter  within  three  months

from the date of receipt of this order. Since no one

appeared in this Court for the respondent despite

notice  to  him,  the  High  Court  will  issue  a  fresh

notice  of  the  application for  grant  of  leave to  the

respondent  and  then  decide  the  application  as

directed.

                                    .……...................................J.                     [ABHAY MANOHAR SAPRE]                  

                    ………..................................J.                      [ASHOK BHUSHAN]

New Delhi, May 17, 2016.

9