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1 - 5 of 5 (0.24 seconds)Section 378 in The Code of Criminal Procedure, 1973 [Entire Act]
State Of Orissa vs Dhaniram Luhar on 4 February, 2004
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 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 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 reappreciate 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.
Section 374 in The Code of Criminal Procedure, 1973 [Entire Act]
The Code of Criminal Procedure, 1973
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