leave
to appeal – Section 378 (4) of CrpC: 419 BNSS- MAINTAINABILITY
In criminal law as in civil cases
there are tier available for appeals or revisions, depending on nature of
disposal of case and whether the disposal relates to application or the case
itself. Moreover, whether the disposal of the application ipso fact culminates
the cause itself. However, presently, the issue being deliberated is leave to
appeal in criminal cases. To put it in nutshell, leave to appeal is generally
preferred, when the acquittal order is passed by the trial court or the first
appellate court in criminal cases, as the case may be. The power to grant leave
against the acquittal is available to the high court in terms of Section 378 (4)
of Cr.P.C and the corresponding provisions is prescribed in section 419 (4) of
Bharitiya Nagrik Suraksha Sanhita 2023 (BNSS). What is of pertinence in the
context is that if the leave to appeal is sought without any tangible causes then
such leave may not be granted. As it is,
dockets of the High Courts are filled with such leave to appeals and therefore,
it is often felt that in a routine course the leave to appeal, if preferred
should be discouraged and terms should be saddled for frivolous leave to
appeals. That apart, the acquittal of an accused by court is not required to be
set aside lightly and it is no res
integra that if application for seeking leave to appeal does not prima
facie establish that the order of acquittal is unreasonable or perverse, the leave
, ought to be refused.
In the above backdrop, recently,
the Delhi High Court has comprehensively dealt with the issues, in a matter
captioned as State Vs MANPAL & ORS
bearing no. CRL.L.P. 519/2019 (decided on 8th
October 2024).
It may be worthwhile to
reiterate the provisions of Section 378(4) & (5) of Cr.PC as correspond to
Section 419 (4) & (5) of BNSS 2023 as afore stated. The provisions are to as
under for ready reference:
378(4): If such an order of acquittal is passed in any
case instituted upon complaint and the High Court, on an application made to it
by the complainant in this behalf, grants special leave to appeal from the order
of acquittal, the complainant may present such an appeal to the High Court;
378( 5): No application under sub section
(4) for grant of special leave to appeal from an order of acquittal shall be
entertained by the High Court after the expiry of six months, where the
complainant is a public servant, and sixty days in every other case, computed
from the date of the order of the acquittal.
It is not without reason, therefore that against the order of
acquittal, the prosecution is required to obtain leave from the High Court for
seeking permission to prefer appeal and as shall be delineated further, such
leave shall be granted only when grounds of leave is available i.e the order of
acquittal recorded by the trial court or the first appellate court as the case
may be, is unreasonable to say the least.
Turning to State Vs MANPAL (supra) and Shorn of unnecessary details , in the above case, the FIR was lodged
following information about a quarrel on Street and the victim/prosecutrix and
her mother were taken to the police station where their respective statements
were recorded. As a prelude to the quarrel as per above, the prosecutrix
alleged attempt to rape by landlord’s Son and it was thus disclosed by her to
sister and parents.
The charge was framed under Sections
341/323/354/376/511 of the IPC against Respondent No. 1 and separate charges
under Sections 341/323/34 of the IPC were framed against Respondent Nos. 2 and
3, who are the mother and sister respectively, of Respondent No. 1.
The prosecution witnesses were examined
before the Trial Court and the learned ASJ noted that the prosecutrix was
examined-in-chief and cross-examined. In her examination-in-chief, she
supported the case of the prosecution but in the cross-examination on the same
day, she deposed that the dispute took place between her family and the family
of the accused in regard to vacating the tenanted premises. On being asked by
the learned Trial Court, she replied that false complaint was filed against the
accused persons. It also transpired that the real dispute between the parties
was with regard to the rent and the prosecutrix had stated that the
accused/Respondent No.1 had not attempted to rape her.
The Mother of the prosecutrix had
deposed that her daughter had told her on phone that the accused persons were
beating her and had not allowed her to put the mattress on the roof to dry out
in the sunlight. The Mother admitted that she had stated to the Police that her
daughter had told her that while she was coming from the roof with mattress,
the accused took her in a hut and tried to rape her. She volunteered that the
said facts were told to the Police because the Police was not taking any
action.
Significantly, the learned ASJ noted
that the DD entry pursuant to a PCR call, only mentions that there was a
quarrel and no allegation of attempt to rape was ever made.
As there existed material
contradictions between the statements given to the Police at the initial stage
and then subsequently to the Magistrate under Section 164 of the Code of
Criminal Procedure, 1973 (CrPC), therefore, the learned ASJ took note of
the affidavits filed by the prosecutrix and her Mother, wherein the deponents
being the prosecutrix and her Mother had deposed that the dispute was in regard
to the rent and a false complaint was filed. After perusal of evidence and
considering that on the touchstone of law, the learned Trial Court was pleased
to order acquittal of the respondents.
LEAVE TO
APPEAL
In the above factual matrix, the leave to appeal was filed.
It is also evident from record that the
Additional Public Prosecutor for the State, in the proceedings before the District
Court had initially opined that the case was not suitable for appeal to the
High Court. It is also borne out from record that the Director of Prosecution
also shared that view, however, it appears that the Department of Law &
Legislative Affairs, later proposed filing an appeal. The High Court had thus
expressed surprise on the reasoning behind the Department of Law &
Legislative Affairs recommending an appeal in this case.
The Hon’ble Delhi High Court has held
as under:
“12. It is trite law that this Court
must exercise caution and should only interfere in an appeal against acquittal
where there are substantial and compelling reasons to do so. At the stage of
grant of leave to appeal, the High Court has to see whether a prima facie case is made out in
favour of the appellant or if such arguable points have been raised which would
merit interference. The Hon’ble Apex Court in the case of Maharashtra v. Sujay Mangesh Poyarekar:
(2008) 9 SCC 475 held as under:
“19. Now,
Section 378 of the Code provides for filing of appeal by the State in case of
acquittal. Sub-section (3) 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 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 subsection (3) of Section 378 of the Code.
20. 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.
21. It cannot be
laid down as an abstract proposition of law 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.”
The Delhi High Court has thus held that
in the present case prosecutrix evidence is not proved or corroborated by any
independent witnesses.
The Delhi High Court has thus further held
as under:
17.
It is trite law that the accused can be convicted solely on the basis of
evidence of the complainant / victim as long as same inspires confidence and
corroboration is not necessary for the same. The law on this aspect was
discussed in detail by the Hon’ble Apex Court by Nirmal Premkumar v.
State, 2024 SCC OnLine SC 260. The relevant portion of the same is
produced hereunder:
“11. Law is
well settled that generally speaking, oral testimony may be classified into
three categories, viz.: (i) wholly reliable; (ii) wholly unreliable; (iii) neither
wholly reliable nor wholly unreliable. The first two category of cases may not
pose serious difficulty for the Court in arriving at its conclusion(s).
However, in the third category of cases, the Court has to be circumspect and
look for corroboration of any material particulars by reliable testimony,
direct or circumstantial, as a requirement of the rule of prudence.
It is
significant to point out that recording order of conviction for commission of
an offence of rape, even on the solitary evidence of the prosecutrix is
permissible, if that inspires confidence and appears to be absolutely
trustworthy and unblemished. However, in
case of conspicuous lacunae, such evidence cannot be relied upon. If there are
several and significant variations in material facts in the statements made u/s
161 and u/s 164, in F.I.R and in deposition before court, such a material
contradictions cannot be overlooked.
The
Delhi High Court in State Vs MANPAL & ORS (Supra) has therefore
succinctly concluded as under:
“19. The filing of frivolous cases has
a spiral effect on other litigations which are waiting for their turn to be
heard before the Courts.
20. Although the present case clearly
qualifies as one where costs should be imposed on the prosecution for filing a
frivolous appeal, this Court has chosen to refrain from passing such an order
with a direction to the Department of Law & Legislative Affairs to exercise
greater vigilance and sensitivity in deciding which cases to prosecute. The
misuse of the legal process through frivolous litigation wastes judicial time
and resources, and the Department must ensure that only meritorious cases are
brought before the Court, avoiding unnecessary burden on the judicial system.
21. The filing of frivolous cases has a
far-reaching, detrimental impact on the legal system. It not only clogs the
Courts with unnecessary litigation but also delays the hearing of genuine cases
that are patiently awaiting their turn to be addressed. Such delays undermine
the efficiency of the judiciary, causing distress to litigants. Therefore, it
is imperative that the prosecution and legal departments exercise due diligence
before initiating cases, in order to preserve the integrity of the judicial
process and ensure timely justice for those with legitimate grievances.”
From
the above standpoint as deliberated in this context extensively what may be culled
out is that the provision for a leave to appeal is provided for in the statute
book only with a view to enable the prosecution to bring out the tangible flaws
in the order recording acquittal and therefore it cannot be contemplated that
in a routine matter the leave should be granted against the order of acquittal.
Once, order of acquittal is recorded after appreciation of evidence, the
liberty of individual cannot be dealt with if appeal is filed in a mechanical
manner without exploring and ascertaining the flaws in the order of acquittal.
The provisions for leave to appeal is meant to enable prosecution to seek
substantive justice, in case glaring lapses are evident in the order of
acquittal, else, filling the dockets of courts in a mechanical manner needed
deprecation and the Delhi High Court has done just that in the present case.
---------
Anil
K Khaware
Founder
& Senior Associate
Societylawandjustice.com
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