May
22
2016


In an appeal before the Supreme Court in the matter namely, State of Maharashtra vs. Sujay Mangesh Poyarekar (Criminal Appeal No. 1492 of 2008), decided on 19.09.2008 and reported as MANU/SC/8073/2008:(2008) 9 SCC 475, the order passed by the High Court refusing to grant leave to appeal to the State against an order of acquittal recorded by the Sessions Court was the subject matter of challenge.

In respect of the application for leave to appeal by the State, the High Court rejected the said application without considering the evidence of the prosecution. In the impugned order, the High Court noted that it had heard the learned Assistant Public Prosecutor. None of the injuries sustained by the victim was `fatal' and the cause behind the assault was that the complainant-advocate was teasing the wife of the accused, who was also working in the Court. It further observed that the trial Court had appreciated the evidence properly and has also taken into consideration the number of complaints filed against the said advocate complainant including the apology tendered by the complainant to the President, Bar Association and the action taken by the Bar Council. The trial Court found inherent improbabilities in the case of the complainant and therefore acquitted the accused. The judgment of the trial Court was accordingly held as not perverse.

The Court observed that Section 378 of the Code of Criminal Procedure, 1973 (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 Sub-section (3) of Section 378 of the Code.

In deciding the question whether requisite leave should or should not be granted, the High Court must apply its mind, consider 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 set aside.

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. Every crime is considered as an offence against the Society as a whole and not only against an individual even though it is an individual who is the ultimate sufferer. It is, therefore, the duty of the State to take appropriate steps when an offence has been committed.

The appellate Court in such cases 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. 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 re-appreciation, review or reconsideration of evidence, the appellate Court must grant leave as sought and decide the appeal on merits.

In an appeal against acquittal, the High Court has full power to re- appreciate, review and reweigh at large the evidence on which the order of acquittal is founded and to reach its own conclusion on such evidence. Both questions of fact and of law are open to determination by the appellate Court.

In a case of acquittal, there is a double presumption in favour of the respondent-accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person should be presumed innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced by the trial Court (and certainly not weakened). Nonetheless, it is not correct to say that unless the appellate Court in an appeal against acquittal under challenge is convinced that the finding of acquittal recorded by the trial Court is `perverse', it cannot interfere. If the appellate Court on re-appreciation of evidence and keeping in view well established principles, comes to a contrary conclusion and records conviction, such conviction cannot be said to be contrary to law.

In the case of Chandrappa vs. State of Karnataka, reported as MANU/SC/7108/2007: 2007CriLJ2136, following general principles regarding powers of the appellate Court in dealing with an appeal against an order of acquittal were laid down:

  1. An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;
  2. The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law;
  3. Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.
  4. An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
  5. If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.

The High Court judgment was set aside whereby application for leave was rejected on the ground that the judgment of the trial Court could not be termed as `perverse'. It was observed that if, on the basis of the entire evidence on record, the order of acquittal is illegal, unwarranted or contrary to law such an order can be set aside by an appellate Court. Various expressions, such as, 'substantial and compelling reasons', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', `judgment being perverse', etc. are more in the nature of 'flourishes of language' than restricting ambit and scope of powers of the appellate Court. They do not curtail the authority of the appellate Court in interfering with an order of acquittal recorded by the trial Court.

 








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