STATE OF MADHYA PRADESH v. DEWADAS & ORS

Citation: [1982] 3 S.C.R. 81

Court: Supreme Court of India

Bench: A.D. KOSHAL, A.P. SEN, V. BALAKRISHNA ERADI

Judgment text

81 STATE OF MADHYA PRADESH v. DEWADAS & ORS. January 29, 1982 (A. D. KOSHAL, A. P. SEN AND V. BALAK. RISHNA ERADI, JJ. ) Code of Criminal Procedure, 1973 S. 378 (3)-State Government's application for leave to appeal-Hearing and disposal by Single Judge under r. 1 (q), Chapter I, Parl 1 of M. P. High Court Rules-WMther legal? The Code of Criminal Procedure, 1973, provi. des inttr·a/ia, by sub-s. (3) of s. 3i8 that no appeal against an order of acquittal passed by a lower court shall be entertained under sub-s. (1) or ·sub-s. (2) except with the leave of the High Court. A practice was prevalent in the Madhya Pradesh High Court, requiring the State Government or the Central Government, desirous of preferring an. appeal under sub-s. (I) or sub-s. (2) of s. 378 of the Code, to make an application for leave under sub-s. (3) thereof, and it was registered as a Miscellaneous Crimi- , nal Case and treated as a petition and as such placed before a Single Judge for hearing as per r.

1 (q), Chapter I, Part I, of the Madhya Pradesh High Court Rules. It was only when the Single Judge granted leave to appeal under sub-s. (3), that the petition for leave was registered as a Criminal Appeal and placed before a Division Bench for admission under sub-s. (! ) of s. 384. The State Government of Madhya Pradesh having decided to prefer an appeal under sub-s. (I) of s. 378 filed an application for leave to appeal under sub-s. (3) setting out therein the grounds of appeal and the Single Judge who beard it refused to grant the leave. The State Government made an application for grant ofcertificate under Ar\icle 134 (l) (c) of the Constitution. The application was heard by a Division Bench. The contention was that there was inherent lack of jurisdiction on the part of the Single Judge to hear and decide an app,lica· tion for leave under sub-s. (3) of s. 378 of the Code, inasmuch as under r.

1 (q) (ii) of the Madhya Pradesh High Court Rules, Chapter I, Part I, the matter had to be dealt with by a Bench of two Judges. The High Court, following its earlier decision in State of. Madhya Pradesh v. Narendraslngh, (1974) MPLJ (N) 102, rejected the contention, holding that the State bad to obtain 'leave' of the High Court under sub-s. (3) of s. 378, before an appeal against acquittal was preferred under sub-s. (1) thereof and therefore the learned Single Judge had jurisdiction to deal with the application for leave under sub... (3). 82 strPRl! Mil COURT REPORTS (1982) 3'S. C. 1'. ... In appeal to this Court the State Government contended that the making · of an app1ication for leave under sub-s. (3) of s. 378 is tantamount to filing an appeal under sub-s. (1) thereof, that the High Court could grant leave and entertain the appeal at one and the same time inasmuch as an application under sub-s. (3) would be transmuted into an appeal under sub-s.

(1) when leave is granted under sub-s. (3) and, therefore, the application for leave under sub-s. (3) must have been laid before a Bench of two Judges under r. I (q) (ii) of the High Court Rules. Allowing the appeal, ) HELD : I. An application for 'leave' to appeal under oub-s. (3) of s. 378 without which no appeal under sub-s. (J) or sub-s. (2) thereof can be entei1ained, being an integral part of the appeal, must be laid before a Bench of two Judges of the High Court under r.. 1 (q) (ii), Chapter I, Part I of the Madhya Pradesh Higb Court Rules (as it stood before the amendment) and could not be heard and disposed of by a Single Judge of the High Court under r. I (q) of the Rules, as it stood prior to its amendment. [92 E-F; 83 DJ 2. Sub-s. (3) of s. 378 was introduced by Parliament to create a statutory restriction against entertainment of an appeal filed by the State CJ:overnment or the Central Government under sub-s. (I) or sub-s.

(2) thereof from an order of acquittal passed in a case instituted otherwise than upon a complaint. There is a difference in the procedure regulating entertainment of State appeals under sub-s. (! ) or sub-s. (2) of s. 378 and appeals against acquittals filed by a complainant under suo-s. (4) of s. 378. On a compamon of the language employed in sub-s. (3) and sub·s. (4) of s. 378, it is clear that in the case of an appeal by the State Government or the Central Government under sub:. s. (l) or sub-s. (2), the Code does not contemplate the making of an application for leave under sub-s. (3) while making of an application under sub-s. (4) is a condition precedent for the grant of special leave to a complainant under sub-s. (4). The difference in language used in sub-s. (3) and sub-s. (4) of s.

378 manifests the legislative intent to preserve a distinction between the two Classes of appeals by prescribing two different procedures in the matter of entertainment of appeals against acquittals. ·F While a period of limitation has been prescribed in sub·s. (5) of s. 378 for an application of the complainant under sub-s. (4), there is no period of Jirμitation prescribe-d. for an application for grant of leave to appeal under sub-s. (3), obviously because the Code does not contemplate the making of an application for leave under sub-s. (3) of s. 378. It, therefore, fo1lows that the State Government or the Central Government may, while preferring an appeal under sub-s. (I) or sub-s. (2) of s. 378 incorporate a prayer in the memorandum of appeal for grant of leave under sub-s. (3) thereof, or make a separate application for grant of leave under sub-s. (3) of s. 378, but the making of such an application is not a condition precedent for a State appeal.

[90 F-H; 91 A-C; 88 G-H; 91 C-D] State ofMadhya Pradesh v. Narendra Singh, (1974] MPLJ (N) 102 overruled. State ofRajasthan v. Ramdeen & Ors. (1977] 3 S. C. R. 139 relied oo. M. P. STATB v. DBWADAS (Sen. J. ) 83 C! l! MINAL APPELLATE JURISDICTION : Criminal Appeal No. 278 of 1975. Appeal by special leave from the judgment and order dated, the 16th October, 1974 of the Madhya Pradesh High Court in Misc. i Criminal Case No. 786 of 1974. Gopa/ Subramaniam for the Appellant. P. D.. Sharma, for the Respondent. The Judgment of the Court was delivered by : SEN, J. The short question involved in this appeal by special leave from the judgment and order of the Madhya J>radesh High Court is, whether ari application for 'leave' to appeal under sub-s. (3) of s. 378 of the Code of Criminal Procedure, 1973 (hereinafter 0 referred to as 'the Code'), without which no 'appeal under sub-s. (I) or . sub-s. (2) thereof can be entertained, being an integral par!

of the appeal, must be laid before a Bench of two Judges of the High Court, under r. 1 (q) (ii), Chap. I, Part I, of the Madhya Pradesh High Court Rules, or can be heard and disposed of by a Single Judge of the High Court under r. l (q) of the Rules. The material facts giving rise to the appeal are these. The State Government of Madhya Pradesh having decided to prefer an appeal under sub-s. (I) of s. 378 of the Code, filed an application for 'leave' to appeal under sub·s. (3) thereof, setting out therein the grounds of appeal. According to the practice prevalent in the Madhya Pradesh High Court, the application was listed before a Single Judge, as per rule I (q), Chapter I, P~rt I of. the Madhya Pradesh High Court Rules. 'The learned Single Judge refused to grant leave to appeal under sub·s. (3) of s. 378 on the ground that the judgment of acquittal was based on appreciation of evidence and was not perverse or unreasonable.

The State Government applied for grant of a certificate under Art. 134 (1) (cl of the Constitution. The application for grant of a certificate was placed before and heard by a Division Bench. The contention on behalf of the State Government was that an application for grant of leave under sub-s, (3) of s. 378 of the Code must be treated as a part of the appeal preferred by the State Government under sub·s. (1) thereof, and • sbPRl! Mil coukt llllro!!. Ts (i982] 3S. C. ll. therefore, should have been placed before a Bench of two Judges and consequently the order of the learned Single Judge rejecting the application for grant of leave under sub·s. (3) of s. 378 of the Code. was a nullity. The Division Bench, following the decision of another 1 Division Bench in the State of Madhya Pradesh v. Narendrasingh,( ) rejected the contention of the State that the learned Single Judge 8 had no jurisdiction to entertain or decide the application for leave to appeal under sub-s. (3) of s.

378 of the Code. It however, noticed the incongruity of the requirement that an appeal under sub·s. (I) or sub-s. (2) of s. 378 should be placed before a Bench ) of two Judges under r. I (q) (ii) of the Madhya Pradesh High Court Rules and the hearing and disposal of an application for leave under sub-s. (3) thereof should be by a Single Judge, and observed : "The matter is being examined by the rule making Committee. It is rather anomalous that under rule 1 (q) item (ii) of Chapter I of the Madhya Pradesh High Court Rules, an appeal against acquittal filed by the State Government has to be heard by a Division Bench, still the application for leave under section 378 (3) of the Code should be laid before a Single Judge. " As the case involved an important question relating to pro· · cedure and practice, and as the correctness of the decision of the High Court in Narendrasingh's case was open to question, special leave was granted by this Court.

It appears that a practice was prevalent in the Madhya Pradesh High Court, requiring the State Government or the Central Government, desirous of preferring an appeal under sub·s. (1) or sub-s·. (2) of s. 378 of the Code, to make an application for leave under sub-s. (3) thereof, and it was registered as a Miscellaneous Criminal Case and treated as a petition and as such placed before Single Judge for hearing as per r. 1 (q), Chap. I, Part I, of the Madhya Pradesh High Court Rules. It was only when the Single Judge grante rayer for leave to enter- '>( (I) [1977] 3 S. C. R. 139. tain the appeal.. It is not necessary, as a matter of law, that an application for leave to entertain the appeal should be lodged first and only after grant of. leave by the High Court an appeal may be preferred against the order of acquittal.

If such a procedure is adopted, as above, it is likely, as it has happened in this case; the appeal may be time-barred if the High Court takes more than ninety days for disposal of the application for leave. The possibility that the High Court may always in such cases condone the delay on application'filed before it does not, in law, s_olve the legal issue. The right conferred by section 378 (1), Cr. P. C. , upon the· State to prefer an appeal against acquittal will be jeopardi- - . sed if such a procedure is adopted,· for in certain cases it • may so happen that the High Court may refuse to exercise its discretion to condone the delay. The right conferred I under the section cannot be put in peril by an interpretation of section 378 Cr. P. C. , which is likely to affect adversely or even perhaps to destroy that right," The view expressed by the High Court in Nqrendrasingh's case being in conflict with the. decision of. this Court in Ramdeen's case must be overruled.

It must accordingly be held that the learned Single Judge bad no competence to entertain, hear '. lr dispose of the question of grant ofleave under sub-s. (3) of s. 378, as it had virtually entailed dismissal of the appeal preferred by the State Government UI\der sub-s. (I} thereof. The matter should have been dealt with by a Bench of two Judges in terms of r. 1 (q) (ii), Chap. I, Part I, of the Madhya Pradesh High Court Rules. . ----r- ,. The question at issue has now become academic. As already stated, the High Court while refusing the grant of certificate of fitness, bad adverted to the fact that the matter was being examined . by the Rule-Making Committee. It has since amended r. 1 (q) and made a distinction between appeals from orders of acquittals under sub-s. (I) of s: 378 in respect of: (J) offences punishable with senience of death or imprisonment for life and triable by Court of Sessions, and (2) other offences.

All appeals falling under category (1), together with applications for leave under sub-s. (3) of s. 378, have to be beard by a Bench of two . Judges, and other appeals falling under category (2), together with applications for leave under sul)-~, (3) of s. 378, are to be heard ~by a Sin~le Judge. id. I>. stATE v. l>EWAl>AS (Sen, J. ) 9:\ In the result, the appeal must succeed and is allowed. The A order passed by the High Court, dismissing the application for leave under sub-s. (J) of s. 378 of the Code of Criminal Procedure, 1973, filed by the State Government of Madhya Pradesh, is set_ aside, and it is directed that the application shall be dealt with by a Bench of two Judges as required by r. I (q) (1i), Chap. I, Part I, of the Madhya Pradesh High Corut Rules, prior to its amendment. _,' H. L. C. Appeal allowed. '