STATE OF RAJASTHANversusFIROZ KHAN @ ARIF KHAN

                            [2016] 2 S.C.R. 694


A                       STATE OF RAJASTHAN
                                    v.
                     FIROZ KHAN @ ARIF KHAN
                     (Criminal Appeal No. 750 of2006)
B                             MAY 17,2016
    [ABHAY MANOHAR SAPRE AND ASHOK BHUSHAN, JJ.]
       Code of Criminal Procedure, 1973: s. 378(3) - Parameters to
  be kept in mind by the High Court while deciding application for
C grant of Leave to appeal made u/s.378 (3) - Discussed - Jn the
  instant case, respondent was prosecuted for commission of offence
  of murder of 11 years old girl - Trial Court acquitted the respondent
  giving him benefit of doubt- State's application u/s.378(3) for grant
  of leave declined by High Court without giving reasons - Held: It
  was a clear case of non-application of mind - Matter remanded to
D High Court for reconsideration - Penal Code, 1860 - s.302.
        Allowing the appeal and remitting the matter to the High
    Court, the Court
       HELD: It was a clear case of total non application of mind
  to the case by the Judges because the order impugned neither
E sets out the facts nor the submissions of the parties nor the
  findings and nor the reasons as to why the leave to file appeal is
  declined to the appellant. The casual approach of the High Court
  in deciding the application, is against the law. The case is
  remanded to the High Court for deciding the application made
F by the appellant ~or grant of leave to appeal afresh on merits in
  accordance with law. [Paras 13 and 14] [698-A, CJ
          State of Maharashtra vs. Sujay Mangesh Poyarekar
          2008 (13) SCR 750 : (2008) 9 SCC 475 - referred to.
                        Case Law Reference
G
        2008 (13) SCR 750        referred to        Paras 9, 13
       . CRIMINAL APPELLATE JURISDICTION:Criminal Appeal No.
    750 of2006.
         From the Judgment and Order dated 28.10.2005 of the High Court
H
                                    694
     STATE OF RAJASTHAN v. FIROZ KHAN @ARIF KHAN                               695



ofJudicature for Rajasthan at Jodhpur in D. B. Criminal Leave to Appeal         A
No. 227 of2005.
      Puneet Parihar, Milind Kumar, Advs. for the Appellant.
      The Judgment of the Court was delivered by
       ABHAY MANOHAR SAPRE, J. I. This appeal is filed by the                   B
 State ofRajasthan against the final judgment and order dated 28.10.2005
 passed by the High Court of Judicature for Rajasthan at Jodhpur in D.B.
 Criminal LeavetoAppeal No. 227 of2005 whereby the Division Bench
 of the High Court dismissed the application filed by the appellant herein
 seeking leave to file appeal under Section 378(3) of the Criminal
 Procedure Code, 1973 (hereinafter referred to as "the Code") against           c
 the judgment dated 13.08.2004 passed by the Sessions Judge, Jaisalmer
 in Sessions Trial Case No. 48 of2002.
       2. Keeping in view the short point involved in the appeal, it is not
 necessary to state the facts in detail except few to appreciate the
 grievance of the appellant.                                                    D

      3. The respondent (accused) was prosecuted and tried for
 commission of an offence of murder of one Liley Khan aged around 11
 years under Section 302 of the Indian Penal Code, 1860 (hereinafter
 referred to as "IPC") pursuant to lodging of FIR No 44/2002 in Police
 Station Ramgarh, District Jaisalmer in Sessions Trial Case No. 48 of           E
 2002 in the Court of District and Sessions Judge, Jaisalmer. The
 prosecution adduced evidence in support of their case.
      4. By judgment dated 13.8.2004, the Session Judge on appreciating
 the evidence adduced by the prosecution acquitted the respondent of
 the charge of murder by giving him benefit of doubt.                           F
     · 5. The State ofRajasthan, felt aggrieved ofrespondent's acquittal,
 filed application for leave to appeal before the High Court under Section
 378 (3) of the Code.
                           ..
       6. By impugned order,. the High Court declined to grant leave and
 .accordingly rejected the application made by the State; It is against this    G
· order, the State has filed this appeal by way of special .leave petition.
      1. NotJce of lodgment of petition of appeal was served on the
 r~spondent but despite service of notice, the respondent has not appeared.

      8. Heard learned counsel for the State ofRajasthan.                       H
696            SUPREME COURT REPORTS                           [2016] 2 S.C.R.


A           9. Learned counsel for the appellant-State has made only one
      submission. According to him, the High Court while dismissing the
      application for leave to appeal did not assign any reason and hence the
      impugned order is rendered bad in law. It was his submission that there
      were several discrepancies and errors in the judgment of the Sessions
      Judge against which the leave to appeal was sought and, therefore, this
B
      was a fit case where the High Court should have granted leave to appeal
      for further probing into the case by the appellate court. In support of his
      submission, he placed reliance on the decision of this Court in State of
      Maharashtra vs. Sujay Mangesh Poyarekar (2008) 9 SCC 475.
            10. We are inclined to agree in part with the submission urged by
 c    the learned counsel for the appellant.
            11. The question as to how the application for grant of leave to
      appeal made under Section 378 (3) of the Code should be decided by the
      High Court and what are the parameters which the High Court should
      keep in mind remains no more res !111egra. This issue was examined by
 D    this Court in State of Maharashtra vs. Sujay Mangesh Poyarekar
      (supra). Justice C.K. Thakker.speaking for the Bench held in paras 19,
      20, 21 and 24 as under:                                             ·
            "19; Now, Section 378 of the Code provides for filing of
            appeal by the State in case of acquittal. Sub-section (3)
 E          declares that no appeal "shall be entertained except with
            the leave of the High Court". It is, therefore, necessary
            for the State where it is aggrieved by an order of acquittal
            recorded by a Court of Session to file an application for
            leave to appeal as required by sub-section (3) of Section
 F          378 of the Code. It is also true that an appeal can be
            registered and heard on merits by the High Court only after
            the High Court grants leave by allowing the application filed
            under sub-section (3) of Section 378 of the Code.
             20. In our opinion, however, in deciding the question
 G           whether requisite leave should or should not be granted,
             the High Court must apply its mind, consider whether a
             prima facie case has been made out or arguable points have
             been raised and not whether the order of acquittal would
             or would not be set aside.
             21. It cannot be laid down as an abstract proposition of law
 H
        STATE OF RAJASTHAN v. FIROZ KHAN @ARIF KHAN                                697
                  [ABHAY MANOHAR SAPRE, J.]

           of universal application that each and every petition seeking            A
           leave to prefer an appeal against an order of acquittal
           recorded by a trial court must be allowed by the appellate
           court and every appeal must be admitted and decided on
           merits. But it also cannot be overlooked that at that stage,
           the court would not enter into minute details of the
                                                                                    B
           prosecution evidence and refuse leave observing that the
           judgment of acquittal recorded by the trial court could not
           be said to be "perverse" and, hence, no leave should be
           granted.
           24. We may hasten to clarify that we may not be understood
           to have laid down aii inviolable rule that no leave should be c
           refused by the appellate court against an order of acquittal
           recorded by the trial court. We only state that in such cases,
           the appellate court must consider the relevant material,
           sworn testimonies of prosecution witnesses aud record
           reasons why leave sought by the State should not be granted D
           and the order of acquittal recorded by the trial court should
           not be disturbed. Where there is application of mind by the
           appellate court and reasons (may be in brief) in support of
           such view are recorded, the order of the court may not be
           said to be illegal or objectionable. At the same time,
           however, if arguable points have been raised, if the material E
           on record discloses deeper scrutiny and reappreciation,.
           review or reconsideration of evidence, the appellate court
           must grant leave as sought and decide the appeal on merits.
           In the case on hand, the High Court, .with respect, did
           neither. In the opinion of the High Court, the case did not F
           re_quire grant of leave. But it also failed to record reasons
           for refusal of such leave."
           12. Coming now to the facts of this case, it is apposite to reproduce
     the impugned order in verbatim infra,
                 "Heard-..._                                                        G

                 No case for grant of leave is made out. Accordingly,
.,          the leave to appeal stands dismissed."
          13. We are constrained to observe that the High Court grossly
     erred in passing the impugned order without assigning any reason. In
                                                                                    H
698             SUPREME COURT REPORTS                           [2016] 2 S.C.R.



A     our considered opinion, it was a clear case of total non application of
      mind to the case by the learned Judges because the order impugned
      heither sets out the facts nor the submissions ofthe parties nor the findings
      and nor the reasons as to why the leave to file appeal is declined to the
      appellant. We, therefore, disapprove the casual approach of the High
      Court in deciding the application, which in our view is against the law
B
      laid down by this Court in the case of State of Maharashtra vs. Sujay
      Mang~sh Poyarekar (supra).

            14. In the light of foregoing discussion, the impugned order deserves
      to be set aside. The appeal thus succeeds and is accordingly allowed
      and the impugned order is set aside. The case is remanded to the High
 c    Court for deciding the application made by the appellant for grant of
      leave to appeal afresh on merits in accordance with law keeping in view
      the law laid down by this Court in State of Maharashtra vs. Sujay
      Mang~sh Poyarekar (supra).

           15. It is made clear that we have not applied our mind to the merits
D     of the case and remanded the case having noticed that it was an
      unreasoned order. The High Court will accordingly decide the application
      on merits uninfluenced by any of our observations made in this order.
           16. Since the case is old, we request the High Court to decide the
      matter within three months from the date ofreceipt of this order. Since
 E    no one appeared in this Court for the respondent despite notice to him,
      the High Court will issue a fresh notice of the application for grant of
      leave to the respondent and then decide the application as directed.
      Devika Gujral                                                 Appeal allowed.