Holding

A High Court cannot direct the State Government to file an appeal against an acquittal; such a direction is beyond its jurisdiction.

Summary

The Supreme Court examined whether a High Court, exercising criminal appellate jurisdiction under Section 374(2) of the Cr.P.C., could direct the State Government to file an appeal against an acquittal by a Sessions Judge. The High Court had ordered the Advocate General of Haryana to file a leave‑to‑appeal application within two weeks. The Court held that the methodology of filing an appeal lies exclusively with the State Government, which has its own legal advisers, and that the High Court possesses no advisory jurisdiction to issue such a directive. Consequently, the High Court’s order was beyond its jurisdiction and was set aside. The appeal was allowed, and the matter was remitted to the State Government to decide independently whether to file an appeal. The decision reaffirmed the settled principle that an appellate court cannot interfere with an acquittal unless the lower court’s approach is perverse or legally erroneous.

Issues considered

Can a High Court, under Section 374(2) Cr.P.C., issue directions to the State Government to file an appeal against an acquittal?
Does the High Court have any advisory jurisdiction to prescribe the methodology for filing such appeals?

Legislation cited

Code of Criminal Procedure, 1973s. 374(2), s. 378
Indian Penal Code, 1860s. 120-B, s. 302, s. 328, s. 420

Subjects

Criminal appellate jurisdictionSection 374 Cr.P.C.High Court jurisdictionState GovernmentAppeal against acquittalAdvisory jurisdictionLimitation period

Judgment

A DWARKA DAS AND ORS.
v.
STATE OF HARYANA

NOVEMBER 13, 2002

B
[UMESH C. BANERJEE AND Y.K. SABHARWAL, JJ. ]

Code of Criminal Procedure, 1973--Section 374 (2)-Criminal Appellate
Jurisdiction-Issuance ofdirections by High Court to State Government to file
C appeal against acquittal-Sustainability o/-Held: methodology offiling appeal
lies with State Government and High Court has no authority of issuing such
directions-Thus High court has not only exceded its jurisdiction but
transgressed all limits of jurisdiction which is neither fair nor reasonable-
Hence not sustainable.
D In this appeal, the question that arose before this Court was whether
High Court while exercising the criminal appellate jurisdiction under
Section 374(2) Cr.P.C. could issue directions to State Government to file
an appeal against persons acquitted by Sessions Judge.

E Appellant contended that High Court could not have issued
directions to State Government to file appeal against persons acquitted
and that High Court has to be within the limits and boundaries of law.

Allowing the appeal, the Court

F HELD: 1.1 State Government is capable of managing its .own affairs
in a manner conducive to the people at large and State itself has got its
own Law Officer/Officers to advise in its legal affairs. State Government
in the contextual facts did not seek any opinion from High Court as to
the methodology of dealing with the matter. The methodology of filing an
G appeal lies with the State and the High Court has no authority or
jurisdiction to issue such a directive. Thus, the mandate issued by High
Court is wholly without any jurisdiction or in excess of jurisdiction and
hem;e cannot be accepted. (156-C-D]

1.2. It is not for High Court but for the Government to decide as to
H whether there is any social evil, as in this case country liquor. It is the
150
DWARKA DASv. STATE OF HARYANA [BANERJEE.!.] 151

Government's responsibility to proceed with the matter further, not for A
the High Court to advise. High Court has not only exceeded its jurisdiction
but has transgressed all limits of jurisdiction. This is neither fair nor
reasonable and thus cannot be sustained. 1157-EI

Hariram and Ors. v. State of Rajasthan, 120001 9 SCC 136; Ramesh
Babula/ Doshi v. State a/Gujarat, 11996] 9 SCC 225; Tota Singh and Anr. B
v. State of Pzmjab, 119871 2 SCC 529 and Mohinder Singh and Ors. v, State
of Punjab and Anr., 119851 I SCC 342, referred to,

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
1143 of 2002.
c
From the Judgment and Order dated 9.5.2001 of the Punjab and Haryana
High Court in Crl. A. No. 418 of 2000.

U.R. Lalit, K.B. Rohtagi, Ms. Aparna Rohtagi Jain and Mahesh Kasana
for the Appellants.
D
J.P. Dhanda, K.P. Singh, Ms. Raj Rani Dhanda and Dhan Singh Nagar,
for the Respondent.

The Judgment of the Court was delivered by

BANERJEE, J. Leave granted. While there cannot be any denial of the E
factum that the power and authority to appraise the evidence in an appeal,
either against acquittal or conviction stands out to be very comprehensive
and wide, but if two views are reasonably possible, on the state of evidence:
one supporting the acquittal and the other indicating conviction, then and in
that event, the High Court would not be justified in interfering with an order F
of acquittal, merely because it feels that it, sitting as a trial court, would have
taken the other view. While reappreciating the evidence, the rule of prudence
requires that the High Court should give proper weight and consideration· to
the views of the trial Judge. But if the judgment of the Sessions Judge was
absolutely perverse, legally erroneous and based on a wrong appreciation of
the evidence, then it would be just and proper for the High Court to reverse G
the judgment of acquittal, recorded by the Sessions Judge, as otherwise, there
would be gross miscarriage of justice so said Pattanaik, J. in Hariram and
Ors. v. State of Rajasthan, [2000] 9 SCC 136. Two earlier decisions of this
Court ought also to be noticed in this context, namely, Ramesh Babula/
Doshi v. State a/Gujarat, [1996] 9 SCC 225, wherein in paragraph 7 of the H
152 SUPREME COURT REPORTS [2002] SUPP. 4 S.C.R.

A Report this Court observed :

"7. Before proceeding further it will be pertinent to mention that the
entire approach of the High Court in dealing with the appeal was
patently wrong for it did not at all address itself to the question as to
whether ihe reasons which weighed with the trial court for recording
B the order of acquittal were proper or not. Instead thereof the High
Court made an independent reappraisal of the entire evidence to arrive
at the above-quoted conclusions. This Court has repeatedly laid down
that the mere fact that a view other than the one taken by the trial
court can be legitimately arrived at by the appellate court on reappraisal
of the evidence cannot constitute a valid and sufficient ground to
c interfere with an order of acquittal unless it comes to the conclusion
that the entire approach of the trial court in dealing with the evidence
was patently illegal or the conclusions arrived at by it were wholly
untenable. While sitting in judgment over an acquittal the appellate
court is first required to seek an answer to the question whether the
D findings of the trial court are palpably wrong, manifestly erroneous
or demonstrably unsustainable. If the appellate court answers the above
question in the negative the order of acquittal is not to be disturbed.
Conversely, if the appellate court holds, for reasons to be recorded,
that the order of acquittal cannot at all be sustained in view of any
of the above infirmities it can then and then only reappraise the
E evidence to arrive at its own conclusions. In keeping with the above
principles we have therefore to first ascertain whether the findings of
the trial court are sustainable or not."

The other decision, though slightly earlier in point of time, happens to
be that of Tota Singh [Tota Singh and Anr. v. State of Punjab, [1987] 2 SCC
F 529], wherein this court in paragraph 6 of the Report stated as below :

"6. The High Court has not found in its judgment that the reasons
given by the learned Sessions Judge for discarding the testimony of
PW2 and PW6 were either unreasonable or perver~e. What th~ High
Court has done is to make an independent reappraisal of the evidence
G
on its own and to set aside the acquittal merely on the ground that as
a result of such reappreciation, the High Court was inclined to reach
a conclusion different from the one recorded by the learned Sessions
Judge. This Court has repeatedly pointed out that the mere fact that
the appellate court is inclined on a reappreciation of the evidence fo
H reach a conclusion which is at variance with the one recorded in the
DWARKA DASv. STATE OF HA RY ANA [BANERJEE . .!.] 153

• order of acquittal passed by the court below will not constitute a valid A
and sufficient ground for setting aside the acquittal. The jurisdiction
of the appellate court in dealing with an appeal against an order of
acquittal is circu1nscribed by the li1nitation that no interference is to
be made with the order of acquittal unless the approach made by the
lower court to the consideration of the evidence in the case is vitiated
by some manifest illegality or the conclusion recorded by the court B
below is such which could not have been possibly arrived at by any
court acting reasonably and judiciously and is, therefore, liable to be
characterised as perverse. Where two views are possible on an appraisal
of the evidence adduced in the case and the court below has taken a
view which is a plausible one, the appellate court cannot legally C
interfere with an order of acquittal even if it is of the opinion that the
view taken by the court below on its consideration of the evidence is
erroneous."

The law thus seems to be well settled on this score, as noticed above
in a long catena of cases and we need not dilate thereon any further. D

> Presently, we are faced with a rather singularly singular instance and a
plain look at the order would however justify such an attribute. The order
impugned reads as below:

"We have gone through the records with the help of the learned E
counsel for the parties. We are prima-facie of the opinion that the
acquittal of the persons mentioned in paragraph No.45 of the judgment
for the reasons given in paragraph No. 44 thereof was not called for
and that the matter requires reconsideration by this court. We
accordingly direct the Advocate General, Haryana to file an application
for leave to appeal against the acquittal of the persons mentioned in F
, paragraph No.45 of the judgment. We also direct that the persons
aforementioned shall be served expeditiously as the present appellants
are in custody and the prayer made today by Mr. Ghai for their
release on bail has been declined by us. The application for leave to
appeal be filed within two weeks from today. Adjourned to July 18, G
2001.

A copy of this order be supplied to the counsel for the parties by the
Reader of this Court after due attestation under his signatures."

Significantly this order was passed in an appeal from the order of H
154 SUPREME COURT REPORTS [2002] SUPP. 4 S.C.R.

A Additional Sessions Judge, Sirsa, dated 18th August, 2000 wherein the learned
Sessions Judge passed order of conviction against two of the accused persons,
namely (i) Krishan; and (ii) Somnath and sentenced the abovenoted to undergo
imprisonment for life for the commission of an offence punishable under
Section 302 read with 120-8 of the Indian Penal Code and to pay a fine of
B Rs. I 0,000 each. Further the periods of imprisonment as also fines were also
imposed for various other offences as mentioned in the order.

The factual score records that the two accused persons named above as
against the order of conviction and sentence as above, moved the High Court
of Punjab and Haryana in Crl. A. No. 41 ~ of 2000 and it is in that appeal the
C High Court thought it fit to pass the order as above.

Mr. UR Lalit, the learned Senior Advocate appearing in support of the
appeal not only very emphatically submitted that the High Court ought not
to have acted in the manner as noticed above, but he in fact expressed a sense
of being lost in the wilderness, if the law courts arrogate itself to such an
D exercise of power exercise of judicial power, Mr. Lalit contended shall have
to be within the limits and boundaries of law. The view expressed by this
Court in Hariram (supra) as a matter of fact has been taken recourse to as
the correct exposition of law.

Incidentally, the right of appeal stands granted in the State under Section
E 378 but the State Government has chosen not to exercise that right and
thereby abandoned the right as conferred on to the State by and under the
provisions of law. In the similar· vein the right of appeal stands conferred
within a certain period of time. The issue thus arises as to whether the High
Court while exercising the criminal appellate jurisdiction under Section 374
F (2) of the Code of Criminal Procedure can issue a directive to the State
Government to file an appeal against those persons who have been acquitted
by the learned Sessions Judge.
,,
Before proceeding further in the matter, be it noted herein that the High
Court does not have authorisation by and under the existing legal system to
G exercise any advisory jurisdiction. The Government has its agencies to advise
and in the event the Government feels it expedient to obtain the advise from
such agency or agencies, it is for the Government to decide and not for the
High Court to suggest. Direction to file appeal not only stands as an excessive
user of jurisdiction but indicates exercise of advisory jurisdiction which the
High Court does not possess and is unknown to law.
H
DWARKA DASv. STATE OF HARYANA [BANERJEE.!.] 155

This Court sometime back has had to examine though a reverse case as A
in Mohinder Singh and Ors. v. State of Punjab and Anr., [1985] I SCC 342
wherein Fazal Ali J_ speaking for the Bench was pleased to observe in
paragraph 2 of the report as below:

"2, The:e was undoubtedly a direction to the Public Prosecutor to file
appeal against acquitted accused as indicated above. The High Court, B
however, at the instance of the acquitted accused tried to reopen the
matter in order to find out the manner and various stages through
which the sanction to file an appeal was channelised. With due respects
to the learned Judges we feel that this was not at all proper -for the
High Court to do. Whenever, a Government seeks opinion it consults C
various agencies, namely, the Advocate-General, Public Prosecutor,
Legal Remembrancer and others and thereafter the order is passed by
the Government through the Secretary-in-charge. In the instant case
it was not disputed that the Public Prosecutor was directed by the
Under Secretary to the Government in charge to file appeal against
all the appellants. The High Court, however, seems to have gone D
deeper into the matter by making a roving inquiry into what had
happened when the matter was under consideration of the Government
and how things shaped and held after making this roving inquiry, that
the authority given to the Public Prosecutor was only in respect of
Mohinder Singh and not others, Therefore, the High Court was of the E
opinion that direction to file appeal against acquitted accused
Gurcharan Singh, Bharpur Singh and Jagvinder Singh was non est
and hence appeal filed by the State was not properly presented so far
as they are concerned. It appears that a clear direction has been given
to the Public Prosecutor to file appeal against all the four accused,
three of them against acquittal and as regards Mohinder Singh against F
his acquittal under Section 302 IPC."

Needless to remind ourselves that the criminal jurisprudence of the
country proceeds on the basis that a person is innocent and the burden rests
on the prosecution to prove beyond all reasonable doubts as regards the guilt
of the accused persons. It is with this background that the Code of Criminal G
Procedure has conferred on to the hierarchy of the Courts' specific powers
to deal with the matter as it seems just and proper. The word 'just and proper'
used herein does not however, mean and imply an arbitrary exercise of power
powers are .circumscribed and have to be exercised in accordance with the
provisions of law and not de hors the same : Even discretionary powers shall H
156 SUPREME COURT REPORTS [2002] SUPP. 4 S.C.R.

A have to be exercised in a manner and in consonance with the known principles
of law and not otherwise the State Government has been directed to file an
appeal much beyond the period of limitation: What about the rights of an
accused for presentation of appeal beyond the period of limitation while it·is
true an appeal barred by limitation does not confer a right but it amounts to
B extinguishment of a right. In criminal jurisprudence however extinguishment
of right confers a benefit to an accused and it is in this perspective further
question would arise as to whether the High Court would be within its
jurisdiction to take away such a benefit as conferred by reason of
extinguishment of right. The answer cannot possibly be in the negative.

C The State we suppose is otherwise capable of managing its own affairs
in a manner conducive to the people at large and the State itself has got its
own law Officer/Officers to advise in its legal affairs : State Government in
the contextual facts did not seek any opinion from the High Court as to the
methodology of dealing with the matter. The methodology of filing an appeal
lay with the State and the High Court has no authority or jurisdiction to issue
D such a directive. The mandate issued by the High Court is wholly without
any jurisdiction or in excess of jurisdiction and hence our inability to record
our concurrence.

Obviously the learned Judges of the High Court were swayed by the
nature of incident namely the deaths of about 20 people by reason of
E consumption of illicit country liquor and it is on this score the learned Sessions
Judge upon the appreciation of evidence foun·d it imperative to convict seller
and the vendor of the liquor and acquit the other persons who, it has been
alleged to have supplied the same.

It is at this juncture however paragraphs 49 and 50 of the Sessions
F
Court judgment may be. noticed for proper appreciation of the merits. The
same read as below:

"It is proved beyond all shadows of reasonable doubt that accused
Krishan Lal son of Ram Chand and Som Nath son of Lachhu Ram
G had participated in the public auction for running country liquor vend
at a place called Kalanwali for the year 1980-81 and that they had
proved the highest bidders in the public auction. The Excise and
Taxation Commission, Haryana had accepted the bid and had released
the contract in favour of the two accused. It is also established that
the above named accused Krishan and Sqm Nath had accepted the
H· terms and conditions for running the liquor vend at Kalanwali and
DWARKA DASv. STATE OF HARYANA[BANERJEE. J.] 157

had actually started the business of sale of country liquor by purchasing A
the liquor from Haryana Distillery Nagar. However, they sold spurious
liquor from their outlet at Kalanwali and Baragudh on December I
and December 2, 1980. The methyl alcohol contained methanol poison
which resulted in the death of 44 persons and it rendered 68 others
permanently blind. The accused are thus convicted for the commission
of offence punishable under Sections 302 and 328 read with Section B
120-B of the Indian Penal Code and under Section 6l(l)(a) of the
Punjab Excise Act, 1914. However, charges under Section 420 of the
Indian Penal Code do not stand proved.

However, the prosecution has failed to prove its charges against C
the remaining accused namely Mukhtiar Singh, Moti Ram, Gajjan
Singh, Dwarka Dass, Jagdish Kumar, Sewa Singh, Jagdish Rai, Labh
Chand, Dharam Pal, Mahabir Parshad, Salish Kumar, Bhushan Kumar,
Gurcharan Singh, Shivkirpal Singh, Bhagwan Dass and Hardayal,
who are consequently acquitted of the charges framed against them.
The bail bonds of these accused shall stand discharged. Proceedings D
are dropped against the accused who are dead.'.'

· As noticed above it is not for the High Court but for the Government
to decide as to whether there is any social evil. In the event of a positive
reply it is the Government's responsibility to proceed with the matter further
not for the High Court to advise. The High Court has not only exceeded its E
jurisdiction but has transgressed all limits of jurisdiction. This is neither fair
nor reasonable and thus cannot be sustained.

On the wake of the aforesaid, this appeal succeeds, the order of the
High Court stands set aside and quashed. The High Court would do well to
deal with the pending appeal and decide the issue in accordance with the F
records available before the High Court expeditiously without however being
inhibited by any observation of the High Court.

N.J. Appeal allowed.