BRIJESH SINGH versus STATE OF UTTAR PRADESH AND OTHERS on 20 July 2021

ORDER

1. Leave granted.

2. By a judgment dated 14 August 2014, the Additional SessionsJudge, Ghaziabad, acquitted the second to sixth respondents in SessionsTrial No 2125 of 2012, where they were tried for having committedoffences punishable under Section 302 read with Section 149, Section304B and Section 498A of the Indian Penal Code and Sections 3 and 4of the Dowry Prohibition Act. The judgment of the trial Judge was soughtto be assailed before the High Court by the appellant, the originalinformant, by filing an application for leave to appeal, being CriminalMiscellaneous Application (Leave to Appeal No 351/2014). The DivisionBench of the High Court of Judicature at Allahabad dismissed theapplication on the basis of the following reasons:

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“On a careful perusal of the judgment and record, it cannot besaid that the view taken by the trial judge is perverse or H

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Aunreasonable. Simply because another view might have been takenof the evidence provides no ground for interfering with the orderof acquittal unless the view taken by the trial judge is not a possibleview. On the evidence available on record, it cannot be said thatthe view taken by the trial judge was not a reasonably possibleview.B

In this view of the matter, there is no merit in the application forleave to appeal which is rejected and consequently the Appeal isalso dismissed.”

3. Notice was issued in the Special Leave Petition on 17 OctoberC2016 after condoning the delay. In pursuance of the notice, Mr Z UKhan has appeared on behalf of the second to sixth respondents.

4. Ms Sonia Mathur, senior counsel appearing on behalf of theappellant has submitted that while considering an application for the grantof leave to appeal against the order of acquittal, the High Court wasDrequired to scrutinize the evidence and findings and to determine as towhether leave should be granted to appeal. In this context, learned counselplaced reliance on the provisions of Section 378 of the Code of CriminalProcedure 1973 and on the decision of this Court in State of MadhyaPradesh vs Giriraj Dubey[1].

E5. On the other hand, Mr Z U Khan, learned counsel for thesecond to sixth respondents submits that there are concurrent findingsof fact which have led to the acquittal of the accused and he sought toinvite the attention of the Court to the findings which have been recordedby the trial Court.F6. Having evaluated the rival submissions, we are of the view thatthe impugned judgment of the High Court does not meet the requirementswhich are to be observed, consistent with the provisions of Section 378of the Code of Criminal Procedure 1973, where the High Court hears anapplication for leave to appeal against an order of acquittal. In State ofMadhya Pradesh vs Giriraj Dubey (supra), a two-Judge Bench ofGthis Court has extensively adverted to the precedents of this Court onthe subject. The earlier decisions which have been followed in the abovedecision are: (i) State of Maharashtra vs Vithal Rao Pritirao Chawan[2]; 1 (2013) 15 SCC 257H2 (1981) 4 SCC 129

(ii) State of Orissa vs Dhaniram Luhar[3], (iii) State of Rajasthan vs.Sohan Lal[4]; (iv) State of U.P. vs Ajai Kumar[5]; and (v) State ofMaharashtra vs Sujay Mangesh Poyarekar[6]. The principle whichhas been enunciated is that the High Court must set forth its reasons,indicating at least in brief, an application of mind to the nature of theevidence and the findings which have been arrived at. In other words,merely observing that the order of the trial Judge has taken a possibleview without an application of mind to the evidence and the findings isnot consistent with the duty which is cast upon the High Court whiledetermining whether leave should be granted to appeal against an orderof acquittal.

7. In State of Orissa vs Dhaniram Luhar (supra),the principleswhich must govern a case such as the present, where the High Court isrequested to grant leave to appeal against an order of acquittal by thetrial court have been enunciated. The Court has observed:

“6. The trial court was required to carefully appraise the entireevidence and then come to a conclusion. If the trial court was atlapse in this regard the High Court was obliged to undertake suchan exercise by entertaining the appeal. The trial court on the factsof this case did not perform its duties, as was enjoined on it bylaw. The High Court ought to have in such circumstances grantedleave and thereafter as a first court of appeal, reappreciated theentire evidence on the record independently and returned itsfindings objectively as regards guilt or otherwise of the accused.It has failed to do so. The questions involved were not trivial. Theeffect of the admission of the accused in the background oftestimony of official witnesses and the documents exhibited neededadjudication in appeal. The High Court has not given any reasonsfor refusing to grant leave to file appeal against acquittal, andseems to have been completely oblivious to the fact that by suchrefusal, a close scrutiny of the order of acquittal, by the appellateforum, has been lost once and for all. The manner in which appealagainst acquittal has been dealt with by the High Court leavesmuch to be desired. Reasons introduce clarity in an order. Onplainest consideration of justice, the High Court ought to have set 3 (2004) 5 SCC 568

4 (2004) 5 SCC 573

5 (2008) 3 SCC 351

6 (2008) 9 SCC 475

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Aforth its reasons, howsoever brief in its order, indicative of anapplication of its mind; all the more when its order is amenable tofurther avenue of challenge. The absence of reasons has renderedthe High Court order not sustainable. Similar view was expressedin State of U.P. v. Battan [(2001) 10 SCC 607: 2003 SCC (Cri)639]. About two decades back in State of Maharashtra v. VithalBRao Pritirao Chawan [(1981) 4 SCC 129: 1981 SCC (Cri) 807:AIR 1982 SC 1215] the desirability of a speaking order whiledealing with an application for grant of leave was highlighted.The requirement of indicating reasons in such cases has beenjudicially recognised as imperative. The view was reiteratedCin Jawahar Lal Singh v. Naresh Singh [(1987) 2 SCC 222: 1987SCC (Cri) 347]. Judicial discipline to abide by declaration of lawby this Court, cannot be forsaken, under any pretext by anyauthority or court, be it even the highest court in a State, obliviousto Article 141 of the Constitution.”

D8. These principles have been more recently followed in a judgmentof this Court in Chaman Lal vs State of Himachal Pradesh[7 ][CriminalAppeal No 1229 of 2017, decided on 3 December 2020].

9. The Court has been apprised of the fact that the State of UttarPradesh had also filed an application for leave to appeal against theEjudgment of acquittal by the trial court and leave to appeal was deniedby the High Court on 7 July 2015. However, it is common ground that indeclining to grant leave to the State to appeal, the High Court followedorder which is impugned in the present appeal, in which the informantwas denied leave to appeal by the judgment of the High Court dated 24September 2014.F

10. For the above reasons, we are of the view that an order ofremand would be warranted to the High Court. We accordingly allowthe appeal and set aside the impugned judgment and order of the HighCourt dated 24 September 2014 and remit Criminal MiscellaneousApplication (Leave to Appeal No 351/2014) to the High Court ofGJudicature at Allahabad for determination afresh.

11. Pending applications, if any, stand disposed of.