Bombay High Court
Dharmendrakumar @ Sanjay Vijaynarayan ... vs The State Of Maharashtra And Anr on 1 February, 2019
Author: A.S. Oka
Bench: A.S. Oka, A.S.Gadkari
ALP.55-2017.doc
Dond
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 55 OF 2017
Dharmendrakumar @ Sanjay
Vijaynarayan Mishra ..Applicant.
Vs
The State of Maharashtra & Anr ..Respondents
WITH
CRIMINAL APPLICATION (ALS) NO. 25 OF 2017
-----
Mr. Madhav J. Jamdar a/w Mr. Rohan Surve for the Applicant.
Mr. V.V. Gangurde, APP for the Respondent No.1-State and applicant
in ALS No.25 of 2017.
Mr. Aabad H. Ponda I/b Mr. Shailesh Kharat for the Respondent No.2 in ALS
No.25 of 2017.
-----
CORAM : A.S. OKA &
A.S.GADKARI, J.J.
DATE : 1st February 2019.
ORAL JUDGMENT (Per A.S. Oka, J.) :-
1] We have heard the learned counsel appearing for the parties and the learned APP for the State on a very limited issue concerning the scope of hearing at the admission stage of an appeal under the proviso to Section 372 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C"). 1/23 ::: Uploaded on - 26/02/2019 ::: Downloaded on - 15/03/2019 09:59:31 :::
ALP.55-2017.doc 2] Earlier, there was a controversy whether an appeal by the victim under the proviso to Section 372 will be governed by Section 378 of Cr. P.C and whether it is necessary to obtain a leave to prefer such an appeal. Thus, the question was whether grant of leave in according with Section 378 of Cr. P.C was a condition precedent for entertaining an appeal under the proviso to Section 372. Now the said issue is laid to rest by a recent decision of the Apex Court of a Bench of three Hon'ble Judges in the case of Mallikarjun Kodagali Vs. State of Karnataka1. The majority view is expressed by Hon'ble Mr. Justice Madan B. Lokur (as he then was) after considering the entire law on the subject. The said decision holds that under the proviso to Section 372 of Cr. P.C, an appeal against an Order of acquittal is available as a matter of right to the victim as defined and therefore, it is not necessary to seek a leave of the Court under Section 378 of Cr. P.C. The Apex Court held that the proviso to Section 372 must be given a realistic, liberal and progressive meaning which is beneficial to the victims of the offences. We, therefore, propose to direct the Registry to number this Application as a Criminal Appeal.
3] There cannot be any dispute that as far as the procedure is concerned, the Appeals whether against the Orders of acquittal or against 1 2018 SCC OnLine SC 2/23 ::: Uploaded on - 26/02/2019 ::: Downloaded on - 15/03/2019 09:59:31 ::: ALP.55-2017.doc the Orders of conviction are governed by Section 384 of Cr. P.C which reads thus:-
384. Summary dismissal of appeal.--
(1) If upon examining the petition of appeal and copy of the judgment received under section 382 or section 383, the Appellate Court considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily:
Provided that --
(a) no appeal presented under section 382 shall be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of the same;
(b) no appeal presented under section 383 shall be dismissed except after giving the appellant a reasonable opportunity of being heard in support of the same, unless the Appellate Court considers that the appeal is frivolous or that the production of the accused in custody before the Court would involve such inconvenience as would be disproportionate in the circumstances of the case;
(c) no appeal presented under section 383 shall be dismissed summarily until the period allowed for preferring such appeal has expired.
(2) Before dismissing an appeal under this section, the Court may call for the record of the case.
(3) Where the Appellate Court dismissing an appeal under this section is a Court of Session or of the Chief Judicial Magistrate, it shall record its reasons for doing so.
(4) Where an appeal presented under section 383 has been dismissed summarily under this section and the Appellate Court finds that another petition of appeal duly presented under section 382 on behalf of the same appellant has not been considered by it, that Court may, notwithstanding anything contained in section 393, if satisfied that it is necessary in the interests of justice so to do, hear and dispose of such appeal in accordance with law.
4] On a plain reading of sub-section (1), Appellate Court possesses 3/23 ::: Uploaded on - 26/02/2019 ::: Downloaded on - 15/03/2019 09:59:31 ::: ALP.55-2017.doc a powers to dismiss an appeal summarily. Sub-section (1) of 385 provides that if the Appellate Court does not dismiss an appeal summarily, it shall cause a notice of the time and place at which such appeal will be heard to the parties mentioned therein. In case of an appeal against acquittal, in view of Clause (i) of sub-section (1) of Section 385 of Cr. P.C, a notice will have to be issued to the accused. Going back to sub-section (1) of Section 384, there are three provisos to sub-section (1) which put some embargo on the power of the Court to dismiss an appeal summarily. Provisos contained in Clauses (b) and (c) of sub-section are applicable to an appeal under Section 383 wherein the appellant is in jail. Therefore, provisos in Clauses (b) and (c) of sub-section (1) of Section 384 are not applicable to an appeal under proviso to Section 372 of Cr. P.C. Such appeal is governed by Section 382. Therefore, under Clause (a) of sub-section (1) of Section 384 of Cr. P.C, only condition for summary dismissal of such appeal is that, the appellant and/or its pleader should be given a reasonable opportunity of being heard in support of the appeal. Sub-section (2) of Section 384 is also relevant which provides that before dismissing an appeal under sub- section (1), the Court may call for the record of the case.
5] The submission of the learned counsel for the 4/23 ::: Uploaded on - 26/02/2019 ::: Downloaded on - 15/03/2019 09:59:31 ::: ALP.55-2017.doc
applicant/appellant who is a victim of the offence is that the law is very well settled. There is no difference between an appeal against an Order of conviction or an appeal against Order of acquittal in the sense that in case of both the categories of appeals, the Appellate Court has a power to re-appreciate the evidence. He submitted that the Apex Court has repeatedly deprecated summarily dismissal of appeals against the orders of conviction. He invited out attention to some portions of the decision of the Apex Court in the case of Mallikarjun Kodagali Vs. State of Karnataka (supra). He relied upon a decision of the Apex Court in the case of Sita Ram & Ors Vs. State of Uttar Pradesh2. He heavily relied upon the observations made by majority opinion expressed by Krishna Iyer J. (as he then was). He invited our attention to the observations made by the majority view and in particular paragraph Nos.31, 34, 38, 47, 50 and 53 to 55 of the said decision. He also invited our attention to various decisions of the Apex Court wherein the Apex Court has come down heavily on orders summarily dismissing criminal appeals. He invited our attention to one of such decisions in the case of Shivaji Narayan Bachhav Vs. State of Maharashtra3. He also relied upon a decision of a Division Bench of 2 (1979) 2 SCC 656 3 (1983) 4 SCC 129 5/23 ::: Uploaded on - 26/02/2019 ::: Downloaded on - 15/03/2019 09:59:31 ::: ALP.55-2017.doc Kolkatta High Court in the case of PCS Industries Ltd Vs. State of West Bengal4 and in particular what has been held in paragraph No.10 of the said decision. His basic submission is that the Appellate Court should be very slow in summarily dismissing an appeal preferred against an order of acquittal. His submission is that the right conferred on the victim will be defeated if the appeal preferred by him is dismissed summarily. His submission is that as the Appellate Court has power to re-appreciate the entire evidence even in appeal against acquittal, the same can be done only at the time of final hearing of the appeal. In short, his submission is that, the law laid down by the Apex Court in relation to the appeals against conviction will equally apply to appeals against acquittal preferred by victims in so far as summary dismissal is concerned. 6] The learned counsel appearing for the respondent-accused relied upon the provisions of Section 384 and urged that on plain reading thereof, there is a power vesting in the Appellate Court to dismiss such appeal summarily. He relied upon a decision of the Apex Court in the case of Rajput Ruda Maha Vs. State of Gujrat5. He pointed out that the decision in the case of Sita Ram & Ors Vs. State of Uttar Pradesh (supra) has been 4 (2012) Cr. L.J. 135 5 1981 SCC 677 6/23 ::: Uploaded on - 26/02/2019 ::: Downloaded on - 15/03/2019 09:59:31 ::: ALP.55-2017.doc explained and distinguished. He invited our attention to paragraph Nos.4 to 9 of the said decision. He submitted that the issue of scope of Section 384 of Cr. P.C arose before the Apex Court. He submitted that paragraphs 8 and 9 of the said decision conclude the issue.
7] We have given careful consideration to the submissions of the learned counsel. The plain reading of sub-section (1) of Section 384 of Cr. P.C makes it crystal clear that there is a power vesting in this Court to dismiss an appeal summarily. Section 384 governs both an appeal against conviction and an appeal against acquittal under the proviso to Section
372. 8] Section 421 of Code of Criminal Procedure, 1973 (Old Cr. P.C.) is pari materia with Section 384 of Cr. P.C. The Apex Court in the case of Shyam Deo Pandey & Ors Vs. The State of Bihar 6 had an occasion to deal with the scope of power of summary dismissal of an appeal. In paragraph- 16, the Apex Court quoted Section 421 of Old Cr. P.C paragraph 16 reads thus:
"16 Part VII deals with Appeal, Reference and Revision. Chapter XXXI in the said part deals with Appeals. Section 410 of the Code gives a right to any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge to 6 1971 (1) SCC 855 7/23 ::: Uploaded on - 26/02/2019 ::: Downloaded on - 15/03/2019 09:59:31 ::: ALP.55-2017.doc appeal to the High Court. Sub-section (i) of Section 418 provides that an appeal may lie on a matter of fact as well as a matter of. law, excepting where the trial was by the Jury, in which case the appeal shall lie on a matter of law only. The Explanation provides that the alleged severely of a sentence shall for the purpose of Section 418 be deemed to be a matter of law. Under Section 419, the appeal is to be made in the form of a petition in writing presented by the appellant or his pleader. Unless the court otherwise directs, the petition of appeal shall be accompanied by a copy of the judgment or order appealed against. Section 420 provides for the manner of filling an appeal when the appellant is in jail. Sections. 421, 422 and 423, which, in our opinion, are important are as, follows:
Section 421. (1) Summary dismissal of appeal On receiving the petition and copy under Section 419 or section 420, the appellate Court shall peruse the same, and, if it considers that there is'-no sufficient ground for interfering, it may dismiss the appeal summarily :
Provided that no appeal presented under Section 419 shall be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of the same.
(2)Before dismissing an appeal under this section, the Court may call, for the record of the case, but shall not be bound to do so.
Section 422. Notice of appeal If the Appellant Court dose not dismiss the appeal summarily, it shall cause notice to be given to the appellant or his pleader, and to such officer as the State Government may appoint in this behalf, of the time and place at which such appeal will be heard, and shall, on the application of such 8/23 ::: Uploaded on - 26/02/2019 ::: Downloaded on - 15/03/2019 09:59:31 ::: ALP.55-2017.doc officer, furnish him with a copy of the grounds of appeal; and, in cases of appeals under Section 411-A, sub-section (2) or section 417, the Appellate Court shall cause a like notice to be given to the accused. Section 423 : Powers of Appellate Court in disposing of appeal :
(1)The Appellate Court shall then send for the record of the case, if such record is not already in Court. After perusing such record, and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and, in case of an appeal under Section 41 IA, sub-section (2) or Section 417, the accused, if he appears the Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may-
(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;
(b)in an appeal from a conviction, (1) reverse the finding and sentence, and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial or (2) alter the finding, maintaining the sentence, or, with or without altering the finding, reduce the sentence, or, (3) with or without such reduction and with or without altering the finding, alter the nature of the sentence, but, subject to the, provisions of section 106, sub-section (3), not so as to enhance the same,
(c)in an appeal from any other order, alter or reverse such order ;
(d)make any amendment or any consequential or incidental order that may be just 9/23 ::: Uploaded on - 26/02/2019 ::: Downloaded on - 15/03/2019 09:59:31 ::: ALP.55-2017.doc or proper.
(IA) Where an appeal from a conviction lies to the High Court, it may enhance the sentence, notwithstanding anything in consistent therewith contained in clause (b) of sub- section (1) :
"Provided that the sentence shall not be so enhanced, unless the accused has had an opportunity of showing cause against such enhancement.
(2)Nothing herein contained shall authorize the Court to alter or reverse the verdict of a jury, unless it is of opinion that such verdict is erroneous owing to a misdirection by the Judge, or to a misunderstanding on the part of the jury of the law as laid down by him."
In paragraph-17, the Apex Court dealt with the scheme of Sections 419 to 422. Paragraph 17 reads thus:-
"17.From the scheme of the sections referred to above, the fol- lowing facts emerge : The appellants had a right under Section 410 to file an appeal to the High Court against their conviction. Under Section 418 they were entitled to challenge the correctness of the findings of the trial court, both on facts and law, as admittedly their trial was not by the jury. They were also entitled as them. The appellants had filed the appeal in due form as required by Section 419 accompanied by a copy of the judgment or order appealed against. Under Section 421 the Appellate Court is bound to peruse the appeal petition and the copy of the judgment or order appealed against. If the Appellate Court, on perusal of the same, considers that there was no sufficient ground for interfering with 10/23 ::: Uploaded on - 26/02/2019 ::: Downloaded on - 15/03/2019 09:59:31 ::: ALP.55-2017.doc the judgment and order appealed against, it can dismiss the appeal- summarily. Under sub-section (2) of Section 121, it is open to the Appellate Court before dismissing the appeal to call for the record of the case ; but it is not mandatory that the Appellate Court should call for the record. The stage under Section 421 is to enable the Appellate Court to decide whether the appeal should be admitted or dismissed summarily. In the case before us on September 9, 1966 when the High Court ordered "this appeal will be heard. Issue notice", it is clear that on perusal of the petition of appeal and the judgment of the Sessions Court, the High Court did not take the view that there was no sufficient ground for interference so as to dismiss the appeal summarily. On the other hand, the order of the High Court, extracted above, clearly indicates that the appeal is to be heard and disposedof on merits and for that purpose it issued notice to the State. In fact the provisions regarding issue of notice as provided under Section 422 has also been followed by the High Court. The procedure under Section 422 has to be followed, only when the appeal is not dismissed summarily under Section 421. In this case the stages envisaged by Sections 421 and 422 have passed. The appeal has been admitted and taken on file and notice must have been also issued to the appellants or their counsel, as envisaged in the section."
(Emphasis added) Paragraph 19 reads thus:-
"A reading of Section 423 makes it clear that a criminal appeal cannot be dismissed for default of appearance of the appellants or their counsel. The court has either to adjourn the hearing of the appeal in order to enable them to appear or it should consider the appeal on merits and pass final 11/23 ::: Uploaded on - 26/02/2019 ::: Downloaded on - 15/03/2019 09:59:31 ::: ALP.55-2017.doc orders. The consideration of the appeal on merits at the stage of final hearing and to arrive at a decision on merits so as to pass final orders will not be possible unless the reasoning and findings recorded in the judgment under appeal are tested in the light of the record of the case. After the records are before the court and the appeal is setdown for hearing, it is essential that the Appellate Court should: (a) persue such record; (b) hear the appellant or his pleader, if he appears, and (c), hear the public prosecutor, if he appears. After complying with these requirements, the Appellate Court has full power to pass any of the orders mentioned in the section. It is to be noted that if the appellant or his pleader is not present or if the, public prosecutor is not present, it is not obligatory on the Appellate Court to postpone, the hearing of the appeal. If the appellant or his counsel or the public prosecutor, or both, are not present, the Appellate Court has jurisdiction to proceed with the disposal of the appeal; but that disposal must be after the Appellate Court has considered the appeal on merits. It is clear that the appeal must be considered and disposed of on merits irrespective of the fact whether the appellant or his counsel or the public prosecutor is present or not. Even if the appeal is disposed of in their absence, the decision must be after consideration on merits. Under Section 421 the Appellate Court has to decide whether the appeal is to be taken on file or dismissed summarily. The obligation of the court at that stage is only to peruse the petition of appeal and the copy of the order or judgment appealed against. A summary dismissal of the appeal will then be legal if the Appellate Court considers that there is no sufficient ground for interference. But even in such circumstances it has been held that a summary decision is a judicial decision which vitally affects the convicted appellant and in a fit case, it is also open to be challenged on an appeal before this Court. Though a summery rejection, without giving any reasons, is not violative of any statutory provisions, such a manner of disposal removes every opportunity for 12/23 ::: Uploaded on - 26/02/2019 ::: Downloaded on - 15/03/2019 09:59:31 ::: ALP.55-2017.doc detection of errors in the order. It has been further held that when an appeal in the High Court raises a serious and substantial point, which is prima facie arguable, it is improper for an Appellate Court to dismiss the appeal summarily without giving some indication of its view on the point. The interest of justice and fair play require that in such cases an indication must be given by the Appellate Court of its views on the point argued before it. The earliest decision on this aspect is the one reported in Mushtak Hussein v. The State of Bombay. The entire case law has been referred to and reiterated in Govinda Kadtuji' Kadam and others v. The State of Maharashtra. The recent decision on this aspect is of Challappa Ramaswami v. State of Maharashtra. We have referred to the above decisions to show that though a summary rejection by an Appellate Court under Section 421 may not be violative of the section, nevertheless when an arguable or substantial question arises for consideration, the Appellate Court in its order should indicate its views on such point. If the position is as indicated above that even under Section 421, which contemplates dismissal of an appeal summarily, under Section 423, in our opinion, a very rigorous test must be applied to find out whether the Appellate Court has complied with the provisions contained therein. There is no emphasis on the perusal of the record in Section 421 whereas under Section 423 one of the essential requirement is that the Appellate Court should peruse the record. There cannot be any controversy that Section 423 applies to cases in which appeals have been presented and admitted. Though Section 423 does not provide any limitation on the power of the Appellate Court that it is incompetent to dispose of the appeal, if the appellant or his pleader is not present, nevertheless there is a limitation. That limitation, which is provided by the section is that the Appellate Court, before disposing of the appeal, must peruse the record. No doubt if the appellant or his pleader is present, he must be heard. Similarly, if the public prosecutor is present, he too must be heard. The Legislature in Section 423 contemplates clearly that in certain cases a criminal appeal might be disposed of without hearing the appellant or any 13/23 ::: Uploaded on - 26/02/2019 ::: Downloaded on - 15/03/2019 09:59:31 ::: ALP.55-2017.doc one on his behalf or the public prosecutor. The expression "after perusing such record" in the section is, in our opinion, a condition precedent to a proper disposal of an appeal either by dismissing the same or in any other manner contemplated in the said section. The powers which the Appellate Court in criminal appeals possesses are depicted in Section 423. It his power not only to dismiss the appeal but also pass any one of the orders enumerated in clauses (a), (b), (c) and (d) and sub- section (1-A). These provisions show the enormous powers which the Appellate Court possesses in regard to a criminal appeal. These powers, it cannot be gainsaid are very vast. Any one of the orders, mentioned above, could be passed by the Appellate Court whether the appeal is disposed of on hearing or without hearing the appellant or his pleader. These provisions, in our opinion, clearly indicate the, nature of a judgment or order that is expected of the Appellate Court in its judgment. It is in this context that the expression "after perusing such record" assumes great importance. Absence of these words in Section 421, brings out in bold contrast the difference in the nature of jurisdiction exercised under the two sections."
(Emphasis added) Perusal of paragraph-19 shows that the Apex Court held that there is a power vesting in the Court under Section 421 to summarily dismiss an appeal. However, the Apex Court held that when an arguable substantial question arises for consideration, it is improper for an Appellate Court to dismiss the appeal summarily without giving some indication of its view on the points. Thus, the Apex Court upheld the powers of Appellate Courts to dismiss appeal summarily. However, the Apex Court laid down that reasons are required to be recorded for dismissing the appeal 14/23 ::: Uploaded on - 26/02/2019 ::: Downloaded on - 15/03/2019 09:59:31 ::: ALP.55-2017.doc summarily. Even calling for the record of the Trial Court is not necessary before summary dismissal of an Appeal. However, we are of the view that in an Appeal against acquittal by a victim of an offence, as a rule of Prudence, the Court must look at the depositions of the witnesses. Calling for record is not necessary as the Appellant can place the depositions on record.
9] The power of Appellate Court to interfere in an appeal against acquittal came up for consideration of a Bench of three Judges of the Apex Court in the case of Sanwat Singh & Ors. Vs. State of Rajathan 7. Paragraph- 9 of the said decision reads thus:
"9. The foregoing discussion yields the following results: (1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; 2) the principles laid down in Sheo Swarup's case, 61 Ind APP 398 : (AIR 1934 PC 227; afford a correct guide for the appellate court's approach to a case in disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as (i) "substantial and compelling reasons", (ii) "good and sufficiently cogent reasons", and (iii) "strong reasons" are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing 7 AIR 1961 SCC 715 15/23 ::: Uploaded on - 26/02/2019 ::: Downloaded on - 15/03/2019 09:59:31 ::: ALP.55-2017.doc so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified."
Another decision on the point is in the case of State of Rajasthan Vs. Sohan Lal & Ors.8 The Apex Court considered the scope of sub-section (3) of Section 378 of Cr. P.C. In paragraph-3, the Apex Court held thus:-
"3 We have carefully considered the submissions of the learned counsel appearing on either side This Court in JT (2004) 2 SC 172: State of Orissa v. Dhaniram Luhar, has while reiterating the view expressed in the earlier cases for the past two decades emphasized the necessity, duty and obligation of the High Court to record reasons in disposing of such cases. The hall mark of a judgment/order and exceted of judicial power by a judicial forum is to disclose the reasons for its decision and giving of reasons has been always insisted upon as one of the fundamentals of sound administration justice delivery system, to make known that there had been proper and due application of mind to the issue before the Court and also as an essential requisite of principles of natural justice. The fact that the entertaining of an appeal at the instance of the State against an order of acquittal for an effective consideration of the same on merits is made subject to the 8 (2004) 5 SCC 573 16/23 ::: Uploaded on - 26/02/2019 ::: Downloaded on - 15/03/2019 09:59:31 ::: ALP.55-2017.doc preliminary exercise of obtaining of leave to appeal from the High Court, is no reason to consider it as an appeal of any inferior quality or grade, when it has been specifically and statutorily provided for or sufficient to obviate and dispense with the obvious necessity to record reasons. Any judicial power has to be judiciously exercised and the mere fact that discretion is vested with the court/forum to exercise the same either way does not constitute any licence to exercise it at whims or fancies and arbitrarily as used to be conveyed by the well known saying - 'varying according to the chancellors foot. Arbitrariness has been always held to be the anathema of judicial exercise of any power, all the more so when such orders are amenable to challenge further before higher forums. The State does not in pursuing or conducting a criminal case or an appeal espouses any right of its own but really vindicate the cause of society at large, to preveni recurrence as well as punish offences and offenders respectively, in order to preserve orderliness in society and avert anarchy, by upholding rule of law. The provision for seeking leave to appeal is in order to ensure that no frivolous appeals are filed against orders 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, as in this case, (the court does not find any error), with no further on the face of it, indication of any application of mind whatsoever. All the more so when the orders of the High Court are amenable for further challenge before this Court. Such ritualistic observations and summary disposal which has the effect of, at times, and as in this case, foreclosing statutory right of appeal, though a regulated one cannot be said to be a proper and judicial manner disposing of judiciously the claim before 17/23 ::: Uploaded on - 26/02/2019 ::: Downloaded on - 15/03/2019 09:59:31 ::: ALP.55-2017.doc courts. The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the court concerned had really applied its mind. All the more so, when refusal of leave to appeal has the effect of foreclosing once and for all a scope for scrutiny of the judgment of the trial court even at the instance and hands of the First Appellate Court. The need for recording reasons for the conclusion arrived at by the High Court, to refuse to grant leave to appeal, in our view, has nothing to do with the fact that the appeal envisaged under Section 378 Cr.P.C. is conditioned upon the seeking for and obtaining of the leave from the court. This court has repeatedly laid down that as the First Appellate Court the High Court even while dealing with an appeal against acquittal was also entitled and obliged as well to scan through and if need be re-appreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, in the matter of the extend and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal."
(Emphasis added) 10] The sum and substance of conclusions of the Apex Court is that 18/23 ::: Uploaded on - 26/02/2019 ::: Downloaded on - 15/03/2019 09:59:31 ::: ALP.55-2017.doc the provision for seeking a leave to appeal is in order to ensure that no frivolous appeals are filed against orders of acquittal as a matter of course. However, order refusing grant of leave cannot be a cryptic order and reasons are required to be recorded. In the same decision, the Apex Court reiterated that while dealing with an appeal against acquittal, the Court is under an obligation to scan through the evidence and re-appreciate the same if necessary, subject to well recognized limitation on the power of interference. Only because a different view is possible, an order of acquittal should not be overturned.
11] As far as the power of the Court and the scope of interference in appeal against acquittal is concerned, a reference can be made to the recent of the decision of the Apex Court in the case of Ramesh & Ors. Vs. State of Haryana9. The entire law on the subject has been summarized by the Apex Court. As far as the scope of interference is concerned, the same is dealt with in paragraph Nos.20 to 29. Paragraph-28 summarizes the law which reads thus:-
"28 The appellate court, therefore, is within its power to reappreciate or review the evidence on which the acquittal is based. On reconsideration of the evidence on record, if the appellate court finds the verdict of acquittal to be perverse or 9 (2017) 1 SCC 529 19/23 ::: Uploaded on - 26/02/2019 ::: Downloaded on - 15/03/2019 09:59:31 ::: ALP.55-2017.doc against the settled position of law, it is duly empowered to set aside the same. On the other hand, if the trial court had appreciated the evidence in right perspective and recorded the findings which are plausible and the view of the trial court does not suffer from perversity, simply because the appellate court comes to a different conclusion on the appreciation of the evidence on record, it will not substitute its findings to that of findings recorded by the trial court." (Emphasis added) 12] As observed by us earlier, it well settled that under sub-section (1) of Section 384 of Cr. P.C this Court is empowered to dismiss an appeal summarily. In view of the law laid down by the Apex Court, the power of summarily dismissal can be exercised only by passing an Order indicating reasons and an appeal cannot be dismissed in a mechanical manner by merely observing that this Court concurs with the findings recorded by the Trial Court. The object of sub-section (1) of Section 384 of Cr. P.C is obvious. When an appeal is frivolous or is without any merit, the Court need not be burdened by mechanically admitting the same and keeping it pending for final hearing . The object is to get rid of such appeals from the system which do not deserve final hearing.
13] It is no doubt true that as a matter of prudence, normally before 20/23 ::: Uploaded on - 26/02/2019 ::: Downloaded on - 15/03/2019 09:59:31 ::: ALP.55-2017.doc exercising the power of summarily dismissing an appeal against acquittal by exercising the power under sub-section (1) of Section 384, the Court should go through the evidence on record inasmuch as even in appeal against acquittal, the entire evidence can be re-appreciated. Though sub- section (2) of Section 384 confers a power to call for record, in every case it is not necessary to call for record especially when the copies of the notes of evidence and relevant documents are available on record of the appeal. Only in a case where the Court finds it necessary to look at a particular original document, a copy of which is not placed on record, there will be a necessity of calling for record by exercising the power under sub-section (2) of Section 384. Therefore, advisedly, the Legislature has chosen to use the word "may" in sub-section (2) of Section 384.
14] The view which we are taking as above is in the context of an appeal against acquittal. When it comes to power to re-appreciate the evidence, there is no distinction between an appeal against acquittal and an appeal against conviction. When it comes to the scope of interference, the position is comply different. Even if the Appellate Court comes to a conclusion that the accused is guilty of an offence, there cannot be any interference in appeal against acquittal unless the Appellate Court comes to 21/23 ::: Uploaded on - 26/02/2019 ::: Downloaded on - 15/03/2019 09:59:31 ::: ALP.55-2017.doc a conclusion that is the only view possible. If the Appellate Court finds that the Trial Court has appreciated the evidence in right perspective and recorded a finding which is plausible and the view is not perverse, simply because another view is possible, no interference can be made by overturning the Order of acquittal and converting the same into an order of conviction. Moreover, it is well settled that the presumption of innocence is further strengthened by an Order of acquittal.
15] Therefore, it is not possible to accept the submission that an appeal against acquittal under proviso to Section 372 deserves admission and issuance of notice in accordance with sub-section (1) of Section 385 of Cr. P.C as a matter of course.
16] It is obvious that at the stage of admission when the Appellate Court considers the evidence on record and decides the issue whether appeal deserves summarily dismissal, the aforesaid well known constraints on the power of the Court to interfere in an appeal against acquittal will have to be borne in mind.
17] The submissions made across the bar are answered in the aforesaid terms.
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ALP.55-2017.doc 18] Criminal Application No.55 of 2017 shall be numbered as a Criminal Appeal.
19] Re-numbered Appeal along with Criminal Application No.25 of 2017 shall be listed for admission under the caption of "fresh admission" on 5th March 2019.
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