KUMARI SHAIMA JAFARIversusIRPHAN @ GULFAM AND ORS.

                        (2012] 11 S.C.R. 792


A                    KUMAR! SHAIMA JAFARI
                                   v.
                  IRPHAN @ GULFAM AND ORS.
             (Criminal Appeal No. 2093-2094 of 2012)
                       DECEMBER 11, 2012
B
       [K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]

        Constitution of India, 1950:

c       Art. 136 - Petition for special leave to appeal, by
  complainant challenging order of High Court dismissing
  Government Appeal by a cryptic order - Held: Regard being
  had to the essential constitutional concept ofjurisdiction under
  Art. 136, the application for permission to file the special leave
D petition is allowed and the applicant is permitted to prosecute
  the same.

        Appeal:

        Criminal appeal - Government Appeal dismissed by
E High Court without ascribing reasons - Held: The deliberation
  by High Court while exercising criminal appellate jurisdiction
  has to be reflective of due cogitation and requisite rumination
  - The judgment passed by High Court does not show any
  contemplation or independent application of mind as required
F of an appellate court - Reference to the trial court judgment
  in such a manner would not clothe the judgment to be
  reflective of reasons or indicative of any analysis - Judgment
  passed by High Court is set aside and the appeal remitted
  to it for re-hearing.
G      The instant appeal by special leave was filed by the
    complainant with an application for permission to file the
    same. The appellant challenged the order of the High
    Court declining to entertain the Government Appeal

H                                792
  KUMARI SHAIMA JAFARI v. IRPHAN @ GULFAM                793
                 AND ORS.
against judgment of the trial court acquitting the accused      A
persons of the offences punishable u/ss. 363, 366, 328,
323, 506, 368 and 376(2)(g) IPC. It was contended for the
appellant that it was obligatory on the part of the High
Court to ascribe reasons and not to dismiss the appeal
in a cryptic manner by referring to certain paragraphs of       B
the trial court judgment.

    Allowing the appeal, the Court

     HELD: 1. The appellant was the complainant and the
real aggrieved party. Regard being had to the essential         C
constitutional concept of jurisdiction under Art. 136 of the
Constitution of India, the application for permission to file
the special leave petition is allowed and the applicant is
permitted to prosecute the same. [Para 2] [795-E-G]
                                                                D
    Arunachalam v. P.S.R. Sadhanantham 1979 (3) SCR
482  = (1979) 2 SCC 297 and P.S.R. Sadhanantham v.
Arunachalam (1980) 3 SCC 141 - relied on.

     2.1 The deliberation by the High Court while
exercising criminal appellate jurisdiction has to be            E
reflective of due cogitation and requisite rumination. It
must reflect application of mind, consideration of facts in
proper perspective and appropriate ratiocination either
for affirmation or reversal of the judgment. The reasons
ascribed may not be lengthy but it should be cogent,            F
germane and reflective. It is dangerous to forget that
reason is the essential foundation on which a conclusion
can be based. Giving reasons for an order is the
sacrosanct requirement of law. The reasons in criminal
jurisprudence must flow from the material on record.            G
[Para 13-14] [799-0-E, G; 800-A]

    State of Uttar Pradesh v. Jagdish Singh and Others 1990
(Supp) SCC 150; State of U.P. v. Haripal Singh and Another
(1998) 8 SCC 747; Narendra Nath Khaware v. Parasnath            H
    794      SUPREME COURT REPORTS             [2012] 11 S.C.R.


A Khavare and Others 2003 (3) SCR 683 = (2003) 5 SCC 488;
  Raj Kishore Jha v. State of Bihar and others 2003 (4) Suppl.
  SCR 208 =JT (2003) Supp 2 SCC 354 and State of Orissa
  v. Dhaniram Luhar 2004 (2) SCR 68=JT (2004) 2 SC 172 -
  relied on.
B
          Bossuet; and Nyaya Shastras - referred to.

          2.2 The judgment passed by the High Court does not
    show any contemplation or independent application of
    mind as required of an appellate court. Reference to the
c   trial court judgment in such a manner would not clothe
    the judgment to be reflective of reasons or indicative of
    any analysis. The judgment passed by the High Court is
    set aside and the appeal is remitted to it for re-hearing.
    [Paras 19 and 20] [801-C-D, E]
D
                        Case Law Reference:
          1979 (3) SCR 482         relied on         Para 2
          (1980) 3 sec 141         relied on         Para 2
E         1990 (Supp) sec 150      relied on         Para 9
          (1998) 8 sec 747         relied on         Para 10
          2003 (3) SCR 683         relied on         Para 11

F         2003 (4) Suppl. SCR 208 relied on          Para 14
          2004 (2) SCR 68          relied on         Para 14
          CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 2093-2094 of 2012.
G
        From the Judgment & Order dated 04.07.2012 and
    12.09.2012 of the High Court of Judicature, at Allahabad in
    Government Appeal No. 3432 of 2011 in Criminal Appeal No.
    1674 of 2011.

H
     KUMARI SHAIMA JAFARI v. IRPHAN @ GULFAM               795
                    AND ORS.
    Shakil Ahmed Syed, S.A. Saud, Shuaib-uddion,         Mohd.     A
Parvez Dabas for the Appellant.
      The Judgment of the Court was delivered by
      DIPAK MISRA, J.
                                                                   B
      [CRL.M.P. NO. 24427 OF 2012]

     1. This is an application for grant of permission to file
Special Leave Petition under Article 136 of the Constitution of
India for assailing the judgment and order dated 4.7.2012          C
passed in Government Appeal No. 3432 of 2011 by the
Division Bench of the High Court of Judicature at Allahabad,
whereby the Bench declined to entertain the appeal directed
against the judgment of acquittal rendered by the learned
Additional Sessions Judge, Kanpur Nagar in S.T. No. 944 of
2007 wherein the accused persons faced trial for the offences      D
punishable under Sections 363, 366, 328, 323, 506, 368 and
376(2)(g) of the Indian Penal Code (for short "the IPC").
     2. On a perusal of the material on record, there cannot be
any dispute that the appellant was the complainant and the real    E
aggrieved party. Being aggrieved by the decision of the High
Court, she has sought permission to prefer the special leave
petition. Regard being had to the essential constitutional
concept of jurisdiction under Article 136 of the Constitution of
India as has been stated in Arunachalam v. P.S.R.                  F
Sadhanantham 1 and the pronouncement by the Constitution
Bench in P.S.R. Sadhanantham v. Arunachalam2 where the
assail was to the decision in Arunachalam (supra) under Article
32, we allow the application and permit the applicant to
prosecute the Special Leave Petition. The Crl.M.P. No. 24427       G
of 2012 is accordingly disposed of.

       3. Leave granted.
1.    (1979) 2 sec 297.
2.    (1980) 3 sec 141.                                            H
    796       SUPREME COURT REPORTS                [2012) 11 S.C.R.

A        4. The spinal issue that has spiralled to this Court is
    whether the appeal preferred by the Government questioning
    the legal substantiality of the judgment of acquittal could have
    been dismissed by the High Court in such a manner as it has
    been done.
B       5. At this juncture, it is apposite to state that the
  complainant had filed Appeal No. 1674 of 2011 which has also
  been dismissed by another Division Bench on the foundation
  that when the Government Appeal had already met its fate of
  dismissal, there was no justification to entertain the said appeal.
C No fault can be found in the order passed by the Division Bench
  dealing with the appeal preferred by the complainant as that
  cannot survive after the Coordinate Bench had given the stamp
  of imprimatur to the judgment of acquittal passed by the learned
  trial Judge in the Government Appeal. Hence, the prayer has
D been restricted and, rightly so, by the learned counsel for the
  appellant to the assail of the judgment passed in the
  Government Appeal.

       6. To dwell upon the seminal issue, it is seemly to
E reproduce the judgment passed by the High Court in appeal. It
  reads thus: -

          "The learned trial Judge has discussed elaborately the
          evidence of PW1, the prosecutrix, which appears at pages
          12 to 20 of the judgment in the light of submissions of the
F         defence and we are satisfied that it could not be a case
          under any of the sections for which the accused had been
          charged and tried. The judgment herein suffers from no
          perversity and, as such, the appeal is dismissed."
G       7. It is urged by Mr. Shakil Ahmed Syed, learned counsel
  for the complainant-appellant, that it is obligatory on the part of
  the High Court while dealing with an appeal to ascribe reasons
  and not to dismiss it in a cryptic manner. He would further
  submit that reference to certain paragraphs of the judgment of
H the trial Court would not clothe the decision of the High Court
     KUMARI SHAIMA JAFARI v. IRPHAN @ GULFAM                 797
            AND ORS. [DIPAK MISRA, J.]
to be reflective of appreciation and reason but, on the contrary,   A
it would still be an apology for reason which the law does not
countenance.

     8. The issue that emerges for consideration is whether the
aforesaid delineation by the High Court in appeal can be B
treated to be informed with reason. At this stage, we think it
apt to refer to certain authorities of this Court where there has
been illumined enunciation of law as regards the duty of the High
Court while dealing with criminal appeals, whether it may be
an appeal preferred by the Government or an application for C
leave to appeal by the complainant against the judgment of
acquittal.

     9. In State of Uftar Pradesh v. Jagdish Singh and Others3,
a three-Judge Bench, while dealing with the role of the High
Court at the time of disposal of a criminal appeal, stated thus:-   D

      "This Court has observed before, in more than one case,
      that when the High Court disposes of a criminal appeal it
      should set forth the reasons, even though briefly, in its
      order. That is a requirement necessitated by the.plainest     E
      considerations of justice. We are constrained to remark
      that the repeated observations of this Court have not
      received the attention which they deserve. The impugned
      order before us does not disclose the reasons for making
      it. We trust that it will not be necessary for us to make     F
      these observations in any future case."
     10. In State of U.P. v. Haripa/ Singh and Another" while
laying emphasis on ascribing of reasons while disposing a
criminal appeal, a two-Judge Bench has opined thus: -
                                                                    G
      "It appears that the appeal was preferred by the State of
      Uttar Pradesh against the order of acquittal dated 24-5-
      1989 passed by the Special Sessions Judge, Pilibhit in
3.   1990 (Supp) sec 150.
4.   (1998) a sec 747                                               H
     798       SUPREME COURT REPORTS                  [2012] 11 S.C.R.


A          Case No. 153of1986. The said sessions case was filed
           against the respondent-accused under Section 302 read
           with Sections 307 and 34 IPC. The leave application was
           dismissed summarily without indicating any reason and the
           consequential order of dismissal of appeal was also
B          passed without indicating any reason. It is really unfortunate
           that the appeal was disposed of without giving any reason
           whatsoever. On 26-4-1988, against a similar order of
           dismissal in limine passed by the Allahabad High Court
           in State of U.P. v. Jagdish Singh1 (an appeal) was moved
c          before this Court and a three Judges' Bench of this Court
           deprecated such order disposing of the appeal without
           giving any reason. Unfortunately, a similar improper order
           has been passed in this case. To say the least, ii is a sorry
           state of affairs. We, therefore, allow this appeal, set aside
           the order of dismissal of the appeal in limine and send the
D
           matter back to the High Court with a direction to dispose
           of the matter within a period of four months from the date
           of receipt of this order."

      11 . .Yet again, in Narendra Nath Khaware v. Parasnath
E Khavare and Others5, this Court had the occasion to deal with
  such a situation. In that context, the Court observed thus: -

           "We are constrained to observe a growing tendency with
           the High Courts in disposing of Criminal Appeals involving
F          vexed questions of law and fact in cursory manner without
           going into the facts and the questions of law involved in
           the cases. May be this approach is gaining ground on
           account of huge pendency of cases. But such a summary
           disposal is no solution to the problem of arrears of cases
           in courts. Disposal of appeals where the High Court is the
G
           first court of appeal in such a manner results in denial of
           right of appeal to the parties. So long as the statute
           provides a right of appeal, in our view the court will be
           failing in its duty if the appeal is disposed of in such a
H   s.   (2003J s sec 488.
     KUMARI SHAIMA JAFARI v. IRPHAN @ GULFAM                  799
            AND ORS. [DIPAK MISRA, J.]
      casual and cavalier manner as the High Court has done           A
      in the present case.•

     12. Be it noted, in the above-referred case, an appeal
against acquittal was preferred by the State of Bihar and the
High Court had dismissed the appeal by stating that it was clear
                                                                      8
from the perusal of the record that the witnesses named in the
fardbayan had not been examined by the prosecution and also
the witnesses examined in Court were examined by the police
after eight months after the date of occurrence. The High Court
had also stated that the investigating officer had not been           C
examined. The said deliberation was treated to be
unsatisfactory and, if fact, not appreciated by this Court.

     13. From the aforesaid pronouncements, it is graphically
clear that the deliberation by the High Court while exercising
criminal appellate jurisdiction has to be reflective of due           D
cogitation and requisite rumination. It must reflect application
of mind, consideration of facts in proper perspective and
appropriate ratiocination either for affirmation or reversal of the
judgment. The reasons ascribed may not be lengthy but it should
be cogent, germane and reflective. It is to be borne in mind, to      E
quote from Wharton's Law Lexicon: -

      "The very life of law, for when the reason of a law once
      ceases, the law itself generally ceases, because reason
      is the foundation of all our laws."
                                                                      F
      14. This Court, in Raj Kishore Jha v. State of Bihar and
others6 and State of Orissa v. Dhaniram Luhar, had held that
"reason" is the heartbeat of every conclusion and without the
same, it becomes lifeless. It is dangerous to forget that reason
is the essential foundation on which a conclusion can be based. G
Giving reasons for an order is the sacrosanct requirement of
law which is the aim of every civilized society. And intellect

s.   JT (2003) Supp 2   sec 354.
7.   JT (2004) 2 SC 172.                                              H
    800      SUPREME COURT REPORTS                [2012] 11 S.C.R.

A respects it. It would not be out of place to state here that the
  reasons in criminal jurisprudence must flow from the material
  on record and in this regard, a line from Bossuet is worth
  reproducing: -

          "The heart has reasons that reason does not understand."
B
    We have said so as a Judge should not be guided by any kind
    of emotion, prejudice or passion while giving his reasons.

        15. At this juncture, it may be instructive to sit in a Time
c   Machine and have a look at what our "Shastras" have stated
    about the role of an adjudicator. While describing the role of a
    Judge, it has been stated thus:-

          "Vivaade pruchhati pprasnam pratiprasnam tathaiva cha
D         Nyayapurvancha vadati pradvivaaka iti smrutah."
  The free English translation of the same would be that he who
  puts questions and counter questions (to petitioner and
  respondent) in a dispute and gives his concluding observations
E is called 'Praadvivaakah' or a Judge.
       16. In certain ancient texts while describing a Judge, it has
  been laid down that a Judge is also called a 'vivaakah' i.e. he
  who considers the matter from legal spectrum after applying his
  mind. Be it noted 'vivek' means conscience. In another place
F in smritis it has been said that adjudicator has to decide the
  dispute with great care and caution after patient hearing.
        17. A Judge in the times of yore in this country was
  wedded to Dharma. We are not going to delve into the
G connotative expanse of the tenn "Dhanna". In one context, it has
  been stated that Dharma is not a thing that can be determined
  by any person as per his whim. Thus, personal whim or for that
  matter any individual notion has no place while doing an act of
  justice which is a facet of Dharma. In Nyaya Shastras, there is
H reference to the methodology of inference which involves a
  KUMARI SHAIMA JAFARI v. IRPHAN @ GULFAM                 801
         AND ORS. [DIPAK MISRA, J.]
combination and inductive and deductive logic. The logic, as      A
is understood, means :-
       "The science of right reasoning or the science of
       discussion."
     18. We have referred to the aforesaid concepts solely for    8
the purpose that even the ancient wisdom commanded that the
decision has to be founded on reasons.

     19. Coming to the judgment passed by the High Court, it
is clear as a cloudless sky that it does not show any             c
contemplation or independent application of mind as required
of an appellate Court. Reference to the trial Court judgment in
such a manner would not clothe the judgment to be reflective
of reasons or indicative of any analysis. It does not require
Solomon's wisdom to state that it is absolutely sans reasons,     D
bereft of analysis and shorn of appreciation. Thus viewed, this
Court has no other option but to overturn the same and send
the aµ~aal for re-hearing to the High Court and we so do.
    20. Resuiiantly, the appeal is allowed and the judgment
passed by the High Court in Government Appeal No. 3432 of         E
2011 is set aside and t:Oe appeal is remitted for re-hearing by
the High Court.

R.P.                                          Appeal allowed.