STATE OF M.P Vs GIRIRAJ DUBEY
Bench: K.S. RADHAKRISHNAN,DIPAK MISRA
Case number: SLP(Crl.)...CRLMP No.-002088-002088 / 2013
Diary number: 1322 / 2013
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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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