Leave to file appeal in Criminal Case: Court sees High Court grossly erred in rejecting leave to file appeal, without assigning any reasons
Criminal Appeal No. 570 of 2006
Bench: Justice Abhay Manohar Sapre; Justice Ashok Bhushan
Case Brief: Through the present appeal, the state of Rajasthan brought a challenge against the impugned final judgement and order of the division bench of High Court, before which the leave petition for filing the appeal under section 378 (3) of the Code of Criminal Procedure, 1973 was preferred and that bench had dismissed the said petition/ application of the appellant herein. It is notable here that, the appellant was seeking such leave for filing appeal against the decision of sessions judge. In the facts of the case, the accused- respondent was prosecuted for commission of offence of murder of one- Liley Khan under section 302 of the Indian Penal Code, 1860. The Sessions court by its judgement appreciated the evidence adduced by prosecution, however, acquitted the respondent from such charge of murder, and he was given benefit of doubt. State filed application before the High Court for leave to file appeal, but High Court declined to grant leave and rejected the said application.
This bench, has observed in this connection that the question as to how the application made under section 378 (3) of the CrPC, for the grant of leave to appeal should be decided by the High Court and what are the parameters which the High court should have kept in mind remains no more res Integra. Justice C. K. Thakker already made these issues clear in the case of State of Maharashtra Vs. Sujay Mangesh Poyarekar (2008) 9 SCC 475. Notably, Section 378 of the CrPC provides for the filing of appeal by the State in case of acquittal and sub- section (3) provides for the filing of leave application before the High Court. For deciding such applications the High Court should apply its mind, and decide that whether 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 aside. Justice Thakker also clarified that the appellate court must consider the relevant material, sworn testimonies of prosecution witnesses and record reasons why leave sought by the state should not be granted and the order of acquittal recorded by the trial court should not be disturbed. Thus, applying the said rule by Justice Thakker, this bench observed that the High Court grossly erred in passing the impugned order without assigning any reason. Thus, impugned order is set aside, and case remanded to High Court for considering the same afresh.
Read the Judgement: State of Rajasthan Vs. Firoz Khan @ Arif Khan
