STATE OF ORISSAversusDHANIRAM LUHAR

A                             ST A TE OF ORIS SA
                                       v.                                            \,~


                              DHANIRAM LUHAR

                              FEBRUARY 4, 2004

B           [DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.]


          Code of Criminal Procedure, 1973-Section 378(3)-Leave to appeal-
    Against order of acquittal-Refusal of without giving any reason-Acquittal
C   was granted despite admission of offence by accused-Held: If the trial Court
    was ai lapse in appraising entire evidence, leave to appeal ought to have been
    granted and entire evidence should have been re-appreciated-High Court
    should have given reasons for refusa/-Orissa Forest Act, 1972-Section
    27(l)(a)-Principles of Natural Justice.

D         Respondent-accused was prosecuted for offences punishable u/s
    27(l)(a) ofOrissa Forest Act, 1972 for having encroached land in reserved
    forest. Trial Court acquitted the accused despite his ~aving admitted the
    encroachment in his statement given u/s 313 Cr.P.C. Appellant-State
    soug.ht leave to appeal u/s 378 (3) Cr.P.C., and the same was refused by
E   High Court without assigning any reason. Hence the present appeal.

          Allowing the appeal, the Court

          HELD: l. If the trial Court was at lapse in appraising entire
    evidence, the High Court was obliged to undertake such an exercise by
F   entertaining the appeal. The trial Court on the facts of this case did not
    perform its duties, as was enjoined on it by law. High Court ought to have
    in such circumstances granted leave and thereafter as a first court of
    appeal, re-appreciated the entire evidence on the record independently and
    returned its findings objectively as regards guilt or otherwise of the
    accused. It has failed. to do so. The questions involved were not trivial.
G   The effect of the admission of the accused in the background of testimony
    of official witnesses and the documents exhibited needed adjudication in
    appeal. (70-H; 71-A, BJ

          2. High Court has not given any reasons for refusing to grant leave
    to file appeal against acquittal, and seems to have been completely
H                                        68
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             STATE OF ORJSSA v. DHANIRAM LUHAR [PASAYAT, J.)                   69

     oblivious to the fact that by such refusal, a close scrutiny of the order of    A
     acquittal, by the appellate forum, has been lost once and for all. Reasons
     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 chal~enge. The absence of reasons has             B
     rendered the High Court order not sustainable. 171-B, C, DJ

           State of U.P. v. Battan and Ors., 120011 IO SCC 607; State of
     Maharashtra v. Vithal Rao Pritirao Chawan, AIR (1982) SC 1215; Jawahar
     Lal Singh v. Naresh Singh and Ors., 119871 2 SCC 222; Raj Kishore Jha v.
     State of Bihar and Ors., (2003) 7 Supreme 152 and State of Punjab v. Bhag C
     Singh, 12004) I SCC 547, relied on.

          Alexander Machinery (Dudley) ltd. v. Crab.tree, (1974) ICR 120
     (NIRC) and Breen v. Amalgamated Engineering Union, 119711 1 All E.R.
     1148, referred to.
                                                                                     D
          CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1166
     of 1997.

           From the Judgment and Order dated 1.2.96 of the Orissa High Court in
     Crl. Misc. Case. No. 1122 of 1995.
                                                                                     E
           Jana Kalyan Das for the Appellant.

           The Judgment of the Court was delivered by

           ARIJIT PASA YAT, J. The State of Orissa questions legality and
     propriety of the order by which a learned Single Judge of Orissa High Court     F
     rejected the prayer seeking leave to appeal under Section 378 (3) of the Code
     of Criminal Procedure, 1973 (in short 'the Code'). Following is the order
     passed on l.2.1996:

           "Leave to appeal is refused."
                                                                                     G
           The State sought leave to appeal against the order passed by learned
     S.D.J.M., Nuapada, holding that the respondent Dhaniram Luhar (hereinafter
     referred to as 'the accused') was not guilty of offences punishable under
     Section 27(l)(a) of the Orissa Forest Act, 1972 (in short 'the Act').

           Stand of the prosecution was that the respondent-accused had encroached   H
    70                     SUPREME COURT REPORTS                    [2004] 2 S.C.R.

A about 5 acres of land for the purpose of cultivation in the Patidanger reserved
    forest. The official witnesses had deposed that the respondent-accused had
    encroached the land inside the aforesaid reserved forest within Sunabeda
    Wild Life Sanctuary and also produced sketch map of the plot under occupation
    of the accused. It is an accepted position that the accused in his statement
B   under Section 313 of the Code had admitted encroachment of Government
    land. Learned S.D.J.M. held that mere acceptance of encroachment was not
    sufficient for the purpose of finding him guilty. He held that the authentic
    copy of the notification purported to have been issued under Section 21 of
    the Act was required to be filed which had not been done. He further observed
    that since the notification was not filed, and the procedures prescribed unde.r
C   Sections 21 and 22 were not complied, the respondent-accused was entitled
    to acquittal. As noted above, the State prayed for grant of leave against
    acquittal which was rejected by the impugned order. According to it, the
    Trial Court had erroneously analysed the evidence and did not apply correct
    principles of law.

D         Mr. J.K. Das, learned counsel appearing for the appellant-State submitted
    that the High Court was required to indicate reasons for refusal to grant
    leave. By a non-reasoned order the same should not have been rejected;
    particularly, when questions of public importance and substantial questions
    of law were involved. The accused-respondent has not appeared in spite of
E   service.

          According to learned counsel for the appellant-State it was imperative
    on the High Court to indicate reasons as to why the prayer for grant of leave
    was found untenable. In the absence of any such reasons the order of the
    High Court is indefensible. Section 378 of the Code deals with the power of
p   the High Court to grant leave in case of acquittal. Sub-sections (I) and (3)
    of Section 378 read as follows:

                "378(1) Save as otherwise provided in sub-section (2) ana subject
            to the provisions of sub-section (3) and (5), the State Government
            may, in any case, direct the Public· Prosecutor to present an appeal to
G           the High Court from an original or appellate order of acquittal passed
            by any Court other than a High Court or an order of acquittal passed
            by the Court of Session in revision.

           (3) No appeal under sub-section (I) or sub-section (2) shall be
           entertained except with the leave of the High Court".
H
        STATE OF OR!SSA v. DHAN!RAM LUHAR [PASAYAT, J.]                   71

      The trial Court was required to carefully appraise the entire evidence A
and then come to a conclusion. If the trial Court was at lapse in this regard
the High Court was obliged to undertake such an exercise by entertaining the
appeal. The trial Court on the facts of this case did not perform its duties, as
was enjoined on it by law. The High Court ought to have in such circumstances
granted leave and thereafter as a first court of appeal, re-appreciated the B
entire evidence on the record independently and returned its findings
objectively as regards guilt or otherwise of the accused. It has failed to do so.
The questions involved were not trivial. The effect of the admission of the
accused in the background of testimony of official witnesses and the documents
exhibited needed adjudication in appeal. The High Court has not given any
reasons for refusing to grant leave to file appeal against acquittal, and seems C
to have been completely oblivious to the fact that by ~uch refusal, a close
scrutiny of the order of acquittal, by the appellate forum, has been lost once
and for all. The manner in which appeal against acquittal has been dealt with
by the High Court leaves much to be desired. Reasons introduce clarity in an
order. On plainest consideration of justice, the High Court ought to have set D
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.
Similar view was expressed in State of UP. v. Battan and Ors., [2001) 10
SCC 607. About two decades back in State of Maharashtra v. Vithal Rao
Pritirao Chawan, AIR (1982) SC 1215 the desirability of a speaking order E
while dealing with an application for grant of leave was highlighted. The
requirement of indicating reasons in such cases has been judicially recognized
as imperative. The view \Vas re-iterated in Jawahar Lal Singh v. Naresh
Singh and Ors., [1987) 2 SCC 222. Judicial discipline to abide by declaration
of law by this Court, cannot be forsaken, under any pretext by any authority F
or Court, be it even the highest Court in a State, oblivious to Article 141 of
the Constitution of India, 1950 (in short the 'Constitution').

     Reason is the heartbeat of every conclusion, and without the same it
becomes lifeless. (See Raj Kishore Jha v. State of Bihar and Ors., (2003) 7
Supreme 152).                                                                   G
      Even in respect of administrative orders Lord Denning M.R. in Breen
v. Amalgamated Engineering Union, [ 1971] l All E.R. 1148 observed "The
giving of reasons is one of the fundamentals of good administration". In
Alexander Machinery (Dudley) Ltd. v. Crabtree (1974) ICR 120 NIRC it was
observed: "Failure to give reasons amounts to denial of justice". Reasons are   H
    72                     SUPREME COURT REPORTS                    (2004] 2 S.C.R.

A live links between the mind of the decision-taker to the controversy in question
  and the decision or conclusion arrived at". Reasons substitute subjectivity by
                                                                                      r
  objectivity. The emphasis on recording reasons is that if the decision reveals
  the "inscrutable face of the sphinx", it can, by its silence, render it virtualiy
  impossible for the Courts to perform their appellate function or exercise the
B power of judicial review in adjudging the validity of the decision. Right to
  reason is an indispensable part of a sound judicial .system; reasons at least
  sufficient to indicate an application of mind to the matter before Court. Another
  rationale is that the affected pa11y can know why the decision has gone
  against him. One of the salutary requirements of natural justice is spelling out
  reasons for the order made; in other words, a speaking out. The "inscrutable
C face of a sphinx" is ordinarily incongruous with a judicial or quasi-judicial
  performance.

          The above position was highlighted by us in State of Punjab v. Bhag
    Singh, [2004] 1 sec 547.

D          In view of the aforesaid legal position, the impugned judgment of the
    High Court is unsustainable and is set aside. We grant leave to the State to
    file the appeal. The High Court shall entertain the appeal and after formal        ..
    notice to the respondents hear the appeal and dispose of it in accordance with
    law; uninfluenced by any observation made in the present appeal. The appeal       . r
E   is allowed to the extent indicated.                                               \
    K.K.T.                                                        Appeal allowed.

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