STATE OF RAJASTHANversusSOHAN LAL AND ORS.

                                                                                      v


A                              ST A TE OF RAJASTHAN
                                            v.
                               SOHAN LAL AND ORS.

                                    APRIL 20, 2004

B               [DORAISWAMY RAJU AND ARIJIT PASA YAT, JJ.]


            Code of Criminal Procedure, 1973:

            S.378-Appeal by State against acquittal-High Court refusing to
C grant leave, without assigning reasons-Held, 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-Al/ the more so, when refusal of le'iive
D to appeal has the effect offoreclosing once and for all /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 has nothing to do
  with the fact that the appeal envisaged under s.378 is conditioned upon the
  seeking for and obtaining of the leave from the court-The High Court, as
E the first appellate 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
F possible or a different view only-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,
  with no indication of any application of mind whatsoever-Leave granted-
  High Court to dispose of the appeal in accordance with law.
G
            State o/Orissa v. Dhaniram Luhar, JT (2004) 2 SC 172, relied on.

            S.378-Provision for leave to appeal under the section and provision
      for special leave to appeal under Article 136 of the Constitution-Distinction
      between -Article 136 of the Constitution does not confer any right of appeal
I-I                                       480
                 ST ATE OF RAJAS THAN v. SOHAN LAL                       481
in favour of any party as such and it is not that any and every error is        A
envisaged to be corrected in exercising powers under Article 136 of the
Constitution-The powers of this Court under Article 136 of the Constitution
are special and extra-ordinary and the main object is to ensure that there
has been no miscarriage ofjustice-That cannot be said to be the same with
an appeal envisaged under s.378 of the Code despite the fact that it is made    B
subject to the obtaining of leave to file the appeal-The requirement to
obtain leave does not render the nature, extent or the scope of the appeal
under the Code a precarious one-Constitution of India- Article 136.

     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 895
of2002.                                                                         c;
     From the Judgment and Order dated 31.5.2001 of the Rajasthan High
Court in S.B.Crl. A. No. 88 of 200 I.

     Ms. Sandhya Goswami for the Appellants.

      Sushil Kumar Jain, H.D. Thanvi and Ms. Ruchi Kohli for the Respondents. D

      The following Order of the Court was delivered :

      The above appeal has been filed by the State of Rajasthan against the
order ofa learned Single Judge of the Rajasthan High Court dated 31.5.2001      E
in S.B. Crl.A. No. 88 of2001 whereunder the learned Judge in the High Court
has passed the following order while refusing to grant leave and consequently
rejected the appeal:

       "Heard learned Public _Prosecutor.

       Perused the judgment impugned and the record available with learned      F
       Public Prosectuor. I do not find any error in the judgment impugned.
       No case for grant of leave is made out, Accordingly, this leave to
       appeal is hereby rejected."

       Mr. Sushil Kumar Jain, learned counsel appearing for the respondents
strenuously contended, despite the earlier Judgments of this court which G
have unmistakably indicated that in cases where leave to appeal is refused
reasons have to be assigned in support of the order that there is considerable
difference b.etween the appeal provided for against convictions under Section
374 of the Code of Criminal Procedure (for short "the Cr.P.C.") and an appeal
provided for under Section 378, Cr.P.C. Against orders of acquittal and the H
    482                      SUPREME COURT REPORTS [2004] SUPP. I S.C.R.

A inherent difference in the manner of availing of such avenue of appeals
    provided, one automatically without any condition precedent for entertaining
    and the other regulating the right to appeal subject to the seeking of and
    obtaining leave of the High Court, has not been noticed in the earlier decisions
    of this Court and, therefore, this calls for a consideration. Pursuing such line
B   of submissions it has been contended that when a court has said that it does
    not find any error in the judgment it should be considered to be ·itself a
    sufficient reason and the discretion so exercised to refuse leave cannot be
    found fault with on the ground that no further or other details/reasons have
    been assigned therefor. Learned counsel for the respondents also attempted
    to draw an analogy on the basis of the special leave to appeals fl.led under
C   article 136 of the Constitution of India and the practice adopted by this' Ccurt
    in rejecting summarily, without assigning any reason, such petitions for special
    leave to appeal. Learned counsel for the appellant-State contended that the
    omission to give reasons is per se a vitiating factor and that vitiates the order
    of the High Court, as held in catena of cases.

D           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 mar,k
E of a judgment/order and e: ~ . , of judicial power by a judicial forum is to
    disclose the reasons for its dec1.:.10n and giving of reasons has been always
     insisted upon as one of the fundamentals of sound administration justi~e
    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
F · 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
    ~tatutorily provided for or sufficient to obviate and dispense with the obvious
G 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
H such orders are amenable to challenge further before higher forums. The State
                  ST ATE OF RAJASTHAN v. SOHAN LAL                         483
 does not in pursuing or conducting a criminal case or an appeal espouses any A
 right of its own but really vindicate the cause of society at large, to prevent
 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, B
 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 Hig~
 Court are amenable for further challenge before this Court. Such ritualistic
 observations and summary disposal which has the effect of, at times, and as C
 in this case, foreclosing statutory right of appeal, though a regulated on~
 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 exercise1
 undertaken, as also the fact that the court concerned had really applied its D
 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     1




 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 E
 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 1 F
 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,
                                                                                   I
 no distinctions or differences in approach are envisaged in dealing with an
 appeal as such merely because one was against conviction or the other G
 against an acquittal.
                                               .                                     '
      The attempt to draw an analogy on the power of this Court under
Article 136 of the Constitution of India and the practice of rejecting appeals
at the SLP stage invariably without assigning reasons with the one to be
exercised while dealing with an application for leave to appeal under section , H
    484                    SUPREME COURT REPORTS [2004) SUPP. I S.C.R.

A   378 Cr.P.C. has no meaning and is illogical. First of all, the High Court is not
    the final court in the hierarchy and its orders are amenable to challenge before
    this court, unlike the obvious position that there is no scope for any further
    appeal from the order made declining to grant special leave to appeal. It has
    been on more than one occasion reiterated that Article 136 of the Constitution
    does not confer any right of appeal in favour of any party as such and it is
B   not that any and every error is envisaged to be corrected in exercising powers
    under Article 136 of the Constitution of India. The power of this Court under
    Article 136 of the Constitution are special and extra-ordinary and the main
    object is to ensure that there has been no miscarriage of justice. That cannot
    be said to be the same with an appeal envisaged under Section 378 Cr.P.C.
c   despite the fact that it is made subject to the obtaining of leave to file the
    appeal. The requirement to obtain leave does not render the nature, extent or
    the scope of the appeal under the code a precarious one as sought to be
    assumed, on behalfofthe appellant, Consequently, this appeal is allowed and
    the order of the High Court is set aside.

D         Considering the nature of the appeal before it and the time lag already
    involved, in our view, interest of justice would be better served by granting
    the leave, without expressing any view on the merits of the claims in the
    appeal before the High Court, to enable the same to be disposed of on its
    own merits without any further delay. Leave is granted. The High Court will
E   do well to entertain the appeal and after issuing notice to the respondents,
    will consider and dispose of the same in accordance with law.

    RP.                                                           Appe~l allowed.




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