Allowed¶73

State of Rajasthan v. Firoz Khan @ Arif Khan

Supreme Court17 May 20162016 INSC 429 · [2016] 2 S.C.R. 6942016 INSC 429

Case brief

AI extract

What is this about?

Leave to appeal; Section 378(3) CrPC; appeal by State against acquittal; acquittal under Section 302 IPC; unreasoned order; non-application of mind; requirement of reasons while granting/refusing leave; remand for fresh consideration; State of Maharashtra v. Sujay Mangesh Poyarekar (2008) 9 SCC 475; murder of minor; benefit of doubt; FIR No. 44/2002 PS Ramgarh, Jaisalmer; D.B. Criminal Leave to Appeal No. 227 of 2005, Rajasthan High Court, Jodhpur.

What did the court decide?

Appeal allowed; impugned High Court order set aside; case remanded to the High Court for fresh decision on the leave application on merits in accordance with law; High Court requested to decide within three months and to issue fresh notice of the application to the respondent. ¶73

State of Rajasthan versus Firoz Khan @ Arif… — Murder and Culpable Homicide | Supreme Court (2016)

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the High Court's order rejecting the State's application for leave to appeal under Section 378(3) CrPC, passed without assigning any reasons, was sustainable in law.

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Court's answer

The impugned order declining leave disclosed a clear case of total non-application of mind, as it set out neither the facts, nor the submissions of the parties, nor the findings, nor the reasons for declining leave; the High Court's casual approach was disapproved as contrary to the law laid down in State of Maharashtra v. Sujay Mangesh Poyarekar.

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Ratio / Principle

The impugned order deserved to be and was set aside; the appeal was allowed and the case remanded to the High Court for deciding the leave application afresh on merits in accordance with law, keeping in view the law laid down in State of Maharashtra v. Sujay Mangesh Poyarekar.

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Key takeaways

The Court clarified that it had not applied its mind to the merits and remanded the case solely because the impugned order was unreasoned; the High Court must decide the leave application on merits uninfluenced by the Supreme Court's observations.ratio¶76

Detailed headnote1 paragraphs

Criminal Appeal (Supreme Court of India, Abhay Manohar Sapre, J., Ashok Bhushan, J.) by the State of Rajasthan against the High Court's dismissal, without reasons, of its application for leave to appeal under s. 378(3) CrPC from the respondent's acquittal under s. 302 IPC for the murder of an 11-year-old girl (Sessions Trial Case No. 48 of 2002, Jaisalmer). Held, allowing the appeal: the impugned order, which merely recorded that no case for grant of leave was made out, set out neither the facts, nor the submissions, nor the findings, nor reasons, and was a clear case of total non-application of mind; the casual approach of the High Court was disapproved as contrary to the law laid down in State of Maharashtra v. Sujay Mangesh Poyarekar, 2008 (13) SCR 750 : (2008) 9 SCC 475. Impugned order set aside; matter remanded to the High Court for fresh decision on the leave application on merits, uninfluenced by the Supreme Court's observations, with a request to decide within three months after issuing fresh notice to the respondent.

[2016] 2 S.C.R. 694

STATE OF RAJASTHAN

FIROZ KHAN @ ARIF KHAN

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(Criminal Appeal No. 750 of2006)

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MAY 17,2016

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[ABHAY MANOHAR SAPRE AND ASHOK BHUSHAN, JJ.]

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Code of Criminal Procedure, 1973: s. 378(3) - Parameters to be kept in mind by the High Court while deciding application for C grant of Leave to appeal made u/s.378 (3) - Discussed - Jn the instant case, respondent was prosecuted for commission of offence of murder of 11 years old girl - Trial Court acquitted the respondent giving him benefit of doubt- State's application u/s.378(3) for grant of leave declined by High Court without giving reasons - Held: It was a clear case of non-application of mind - Matter remanded to D High Court for reconsideration - Penal Code, 1860 - s.302.

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Allowing the appeal and remitting the matter to the High Court, the Court

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HELD: It was a clear case of total non application of mind to the case by the Judges because the order impugned neither E sets out the facts nor the submissions of the parties nor the findings and nor the reasons as to why the leave to file appeal is declined to the appellant. The casual approach of the High Court in deciding the application, is against the law. The case is remanded to the High Court for deciding the application made F by the appellant ~or grant of leave to appeal afresh on merits in accordance with law. [Paras 13 and 14] [698-A, CJ

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State of Maharashtra vs. Sujay Mangesh Poyarekar 2008 (13) SCR 750 : (2008) 9 SCC 475 - referred to.

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Case Law Reference

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2008 (13) SCR 750 referred to Paras 9, 13 . CRIMINAL APPELLATE JURISDICTION:Criminal Appeal No. 750 of2006.

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From the Judgment and Order dated 28.10.2005 of the High Court

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694

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STATE OF RAJASTHAN v. FIROZ KHAN @ARIF KHAN 695

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ofJudicature for Rajasthan at Jodhpur in D. B. Criminal Leave to Appeal A No. 227 of2005.

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Puneet Parihar, Milind Kumar, Advs. for the Appellant. The Judgment of the Court was delivered by

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ABHAY MANOHAR SAPRE, J. I. This appeal is filed by the State ofRajasthan against the final judgment and order dated 28.10.2005 passed by the High Court of Judicature for Rajasthan at Jodhpur in D.B. Criminal LeavetoAppeal No. 227 of2005 whereby the Division Bench of the High Court dismissed the application filed by the appellant herein seeking leave to file appeal under Section 378(3) of the Criminal Procedure Code, 1973 (hereinafter referred to as "the Code") against the judgment dated 13.08.2004 passed by the Sessions Judge, Jaisalmer in Sessions Trial Case No. 48 of2002.

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Keeping in view the short point involved in the appeal, it is not necessary to state the facts in detail except few to appreciate the grievance of the appellant.

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The respondent (accused) was prosecuted and tried for commission of an offence of murder of one Liley Khan aged around 11 years under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC") pursuant to lodging of FIR No 44/2002 in Police Station Ramgarh, District Jaisalmer in Sessions Trial Case No. 48 of 2002 in the Court of District and Sessions Judge, Jaisalmer. The prosecution adduced evidence in support of their case.

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By judgment dated 13.8.2004, the Session Judge on appreciating the evidence adduced by the prosecution acquitted the respondent of the charge of murder by giving him benefit of doubt.

· 5. The State ofRajasthan, felt aggrieved ofrespondent's acquittal, filed application for leave to appeal before the High Court under Section 378 (3) of the Code.

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By impugned order,. the High Court declined to grant leave and . accordingly rejected the application made by the State; It is against this · order, the State has filed this appeal by way of special .leave petition.

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1. NotJce of lodgment of petition of appeal was served on the r~spondent but despite service of notice, the respondent has not appeared.

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Heard learned counsel for the State ofRajasthan.

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696

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SUPREME COURT REPORTS

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[2016] 2 S.C.R.

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A 9. Learned counsel for the appellant-State has made only one submission. According to him, the High Court while dismissing the application for leave to appeal did not assign any reason and hence the impugned order is rendered bad in law. It was his submission that there were several discrepancies and errors in the judgment of the Sessions Judge against which the leave to appeal was sought and, therefore, this B was a fit case where the High Court should have granted leave to appeal for further probing into the case by the appellate court. In support of his submission, he placed reliance on the decision of this Court in State of Maharashtra vs. Sujay Mangesh Poyarekar (2008) 9 SCC 475.

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We are inclined to agree in part with the submission urged by

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c the learned counsel for the appellant.

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The question as to how the application for grant of leave to appeal made under Section 378 (3) of the Code should be decided by the High Court and what are the parameters which the High Court should keep in mind remains no more res !111egra. This issue was examined by D this Court in State of Maharashtra vs. Sujay Mangesh Poyarekar (supra). Justice C.K. Thakker.speaking for the Bench held in paras 19, 20, 21 and 24 as under: ·

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"19; Now, Section 378 of the Code provides for filing of appeal by the State in case of acquittal. Sub-section (3) E declares that no appeal "shall be entertained except with the leave of the High Court". It is, therefore, necessary for the State where it is aggrieved by an order of acquittal recorded by a Court of Session to file an application for leave to appeal as required by sub-section (3) of Section F 378 of the Code. It is also true that an appeal can be registered and heard on merits by the High Court only after the High Court grants leave by allowing the application filed under sub-section (3) of Section 378 of the Code.

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In our opinion, however, in deciding the question whether requisite leave should or should not be granted, the High Court must apply its mind, consider whether 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.

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It cannot be laid down as an abstract proposition of law

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STATE OF RAJASTHAN v. FIROZ KHAN @ARIF KHAN [ABHAY MANOHAR SAPRE, J.]

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697

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of universal application that each and every petition seeking leave to prefer an appeal against an order of acquittal recorded by a trial court must be allowed by the appellate court and every appeal must be admitted and decided on merits. But it also cannot be overlooked that at that stage, the court would not enter into minute details of the prosecution evidence and refuse leave observing that the judgment of acquittal recorded by the trial court could not be said to be "perverse" and, hence, no leave should be granted.

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We may hasten to clarify that we may not be understood to have laid down aii inviolable rule that no leave should be refused by the appellate court against an order of acquittal recorded by the trial court. We only state that in such cases, the appellate court must consider the relevant material, sworn testimonies of prosecution witnesses aud 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. Where there is application of mind by the appellate court and reasons (may be in brief) in support of such view are recorded, the order of the court may not be said to be illegal or objectionable. At the same time, however, if arguable points have been raised, if the material on record discloses deeper scrutiny and reappreciation,. review or reconsideration of evidence, the appellate court must grant leave as sought and decide the appeal on merits. In the case on hand, the High Court, .with respect, did neither. In the opinion of the High Court, the case did not re_quire grant of leave. But it also failed to record reasons for refusal of such leave."

Coming now to the facts of this case, it is apposite to reproduce the impugned order in verbatim infra,

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"Heard-..._

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No case for grant of leave is made out. Accordingly, the leave to appeal stands dismissed."

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We are constrained to observe that the High Court grossly erred in passing the impugned order without assigning any reason. In

698

[2016] 2 S.C.R.

SUPREME COURT REPORTS

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A our considered opinion, it was a clear case of total non application of mind to the case by the learned Judges because the order impugned heither sets out the facts nor the submissions of the parties nor the findings and nor the reasons as to why the leave to file appeal is declined to the appellant. We, therefore, disapprove the casual approach of the High Court in deciding the application, which in our view is against the law

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B laid down by this Court in the case of State of Maharashtra vs. Sujay Mang~sh Poyarekar (supra).

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In the light of foregoing discussion, the impugned order deserves

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to be set aside. The appeal thus succeeds and is accordingly allowed and the impugned order is set aside. The case is remanded to the High

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c Court for deciding the application made by the appellant for grant of leave to appeal afresh on merits in accordance with law keeping in view the law laid down by this Court in State of Maharashtra vs. Sujay Mang~sh Poyarekar (supra).

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It is made clear that we have not applied our mind to the merits

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D of the case and remanded the case having noticed that it was an unreasoned order. The High Court will accordingly decide the application on merits uninfluenced by any of our observations made in this order.

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Since the case is old, we request the High Court to decide the

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matter within three months from the date ofreceipt of this order. Since

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E no one appeared in this Court for the respondent despite notice to him, the High Court will issue a fresh notice of the application for grant of leave to the respondent and then decide the application as directed.

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Devika Gujral

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Appeal allowed.

State of Rajasthan v. Firoz Khan @ Arif Khan

Case brief

What is this about?

What did the court decide?

State of Rajasthan v. Firoz Khan @ Arif Khan

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

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