The Allahabad High Court has observed that it is not mandatory for the High Court to summon the lower court record in every case before deciding the application for grant of leave under Section 378(3) CrPC.
The Division Bench of Justice Ashwani Kumar Mishra and Justice Shiv Shanker Prasad heard the Government Appeal filed by the State of Uttar Pradesh.
The Court noted that Section 378 CrPC provides for filing of appeal in case of acquittal by the State. Sub-section 3 of Section 378 CrPC contemplates grant of leave for entertainment of such appeal. Sub-section 3 of Section 378 CrPC reads as under:-
“3. No appeal under Sub-Section (1) or Sub-Section (2) shall be entertained except with the leave of the High Court.”
It is urged by S.A. Murtza, AGA for the State, that the State cannot be treated differently in the matter of filing of appeal vis-a-vis the victim and since the requirement of seeking leave under Section 372 CrPC stands dispensed with by virtue of proviso added to Section 372 CrPC, conferring right upon a victim to prefer appeal against the order of acquittal or convicting the accused for a lesser offence or imposing inadequate compensation, as such the State being repository of the interest of society at large must be treated at par with the victim.
It is also submitted that though the Code of Criminal Procedure provides for summary dismissal of appeal yet sub-section 2 of Section 384 CrPC nevertheless provides that before dismissing an appeal, summarily, the Court may call for record of the case.
It is urged that appeal is a creature of statute and Chapter XXIX of the Code provides for the procedure to be followed for its adjudication, therefore, it would be necessary for this Court to summon the lower court record first before examining the question of grant of leave.
It is also urged that the refusal to grant leave results in affirmance of the order impugned in the appeal as such the decision affects the victim as his right of appeal would be adversely affected.
The Court further noted,
So far as Section 384 of the Code is concerned it confers power upon the appellate court to dismiss an appeal summarily. The language employed by the Statute in sub-section (1) is that upon examining the petition of appeal and copy of the judgment received under Section 382 or Section 383 the appellate court considers that there is no sufficient ground for interfering; it may dismiss the appeal, summarily.
The proviso to subsection 1 only provides that before such dismissal the appellant or his pleader would be given a reasonable opportunity of being heard in support of such petition. Similarly in respect of an appeal preferred under Section 383 CrPC the dismissal shall be after giving the appellant a reasonable opportunity of being heard unless the appellate court considers that appeal is frivolous or that the production of the accused in custody before the Court would involve such inconvenience as would be disproportionate in the circumstances of the case.
Sub-section 2 of Section 384 CrPC then provides that before summarily dismissing an appeal under Section 383 CrPC the appellate court may call for record of the case. The conjoint reading of sub-section 1 and 2 of Section 384 CrPC clearly conveys that the appellate court upon examining the petition of appeal and copy of the judgment received under Section 382 or 383 can summarily dismiss the appeal, if it considers that there is no sufficient ground for interference. The specification of the material to be relied upon in sub-section (1) for the purposes of considering the appeal for summary dismissal denotes the legislative intent that the only material which is required for consideration by the appellate authority is the petition of appeal and the copy of the judgment. Subsection (2) only enables the appellate court to call for the records of the case even before it proceeds to summarily dismiss the appeal. The Code vests discretion with the appellate court to summon the lower court record before summarily dismissing the appeal, or not. This discretion is to be exercised by the appellate court depending upon the requirement of lower court record for formation of opinion whether sufficient ground exists for interference in appeal.
The use of expression ‘may’ in sub-section (2) clearly suggests that the power to summon the record is only an enabling provision and is not to be read as shall as is suggested by the counsel.
Before proceeding to examine the contention raised the Court like to refer to the judgment of the Supreme Court cited at the Bar. In Sujay Mangesh Poyarekar (Supra) while considering the scope of sub-section 3 of Section 378 the Court observed that the High Court while exercising the power to grant or refuse leave must apply its mind and consider where 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. In paragraph 21 the Court clearly observed that every petition seeking leave to prefer an appeal is not required to be allowed by the appellate court nor that every appeal filed has to be admitted. The two observations are a clear pointer to the legislative intent. Every appeal is not required to be admitted in as much as leave must not necessarily be granted in every matter and the exercise of power in that regard is dependent upon a prima facie assessment of the material placed before the Court so as to ascertain whether the appeal raises arguable points or not.
The Court said that the object of incorporating provision for grant of leave has a purpose to subserve. It is not that in every matter the State is expected or required to file an appeal and even if such an appeal is routinely filed, the Court is not required to entertain every such appeal as a matter of course. The purpose of grant of leave by the High Court is that a prima facie assessment would be required to determine whether the appeal raises arguable points or not. The reason for grant or refusal to leave must be reflected from the order passed by the High Court. The Supreme Court has clearly disapproved the practice of rejection of prayer for grant of leave to file appeal by passing orders which do not reflect proper application of mind by the appellate court within the scope of powers to be exercised.
The Court further said,
The observations of the Supreme Court, relied upon by the State Counsel, would not lead to an inference that just because the victim has a right of appeal as such the State must also be recognized as having right to prefer appeal against any order of acquittal or conviction for a lesser offence or imposing inadequate compensation.
The purpose of grant of leave is merely to embark upon a prima facie assessment so as to decide which of the matters would require examination by the appellate court. The refusal to grant leave would not mean that the order of acquittal merges in the order of the High Court. The right of the victim to file an appeal by virtue of provision to section 372 CrPC would, therefore, not be adversely affected by the refusal to grant leave under Section 378(3) CrPC by the High Court. The right of the victim to file an appeal in terms of provision to Section 372 CrPC would thus stand unhindered. The above interpretation would subserve the object of provision for grant of leave to the State to file an appeal against the order of acquittal while maintaining the right of a victim to prefer an appeal under Section 372 CrPC.
“The upshot of the above deliberation is that it is not mandatory for the High Court to summon the lower court record in every case before deciding the application for grant of leave under Section 378(3) CrPC. We hasten to add that the right of the appellate court to summon the lower court record in an appropriate matter always subsists. It is for the High Court to decide on the basis of facts and circumstances of each case whether the application for grant of leave requires the perusal of the lower court records or not? We, therefore, hold that it is not necessary for this Court to call for the lower court records for consideration of application under Section 378(3) CrPC, in every case or as a matter of routine,” the Court observed.