26 May 2020


High Court of Sikkim

State of Sikkim Vs. Dawa Tshering Bhutia




Leave to appeal cannot be rejected on ground that, judgment of Trial Court could not be termed as perverse

In present application, the parameters of judicial consideration while deciding an application for leave to appeal against the judgment of acquittal is the issue before present Court. Leave to appeal has been sought by the State under Section 378(3)(b) of Criminal Procedure Code, 1973 (Cr.P.C) against judgment passed by trial Court under Section 376/511 of Indian Penal Code (IPC).

Although, it is true that, leave to appeal can be granted where it is shown that, conclusions arrived by the Trial Court are perverse or there is misapplication of law or any legal principle. It is equally true that, leave to appeal cannot be rejected on ground that, Judgment of trial Court could not be termed as perverse. The power of the Appellate Court is wide. However, consideration at the time of deciding whether leave ought to be granted or not and at the stage of deciding an appeal against acquittal are different.

Sub-Section (3) of Section 378 of Cr.P.C. makes it clear that, the High Court has the power to grant leave or deny the same. If the Court is to deny leave, it must be for valid and cogent reason as is required of exercise of any judicial power. It must be kept in mind that, by such refusal, a close scrutiny of the order of acquittal by the Appellate Forum would be lost once and for all. The Apex Court in re: State of Punjab v. Bhag Singh held that, trial Court was required to carefully appraise the entire evidence and then come to a conclusion. If the trial Court was at a lapse in this regard, High Court was obliged to undertake such an exercise by entertaining the appeal.

This Court also stays conscious of the law that, at this stage, the Court would not enter into minute details of the prosecution evidence and refuse leave observing that the judgment of the acquittal recorded by the Trial Court could not be said to be perverse. Trial Court has without analysing the effect of the evidence of the Magistrate and the Investigating Officer concluded in impugned judgment that, evidence of PW-13, I.O. of case and PW-10, the then Chief Judicial Magistrate establishes that, she had stated different version while giving her statement." Evidence of the victim as well as other prosecution witnesses i.e. PW-2, PW-7, PW-8, PW-10 and PW-13 establish that, the victim projected different versions and tried to improve her case."

It is evident that, impugned judgment does not deal with the ingredients of Section 354 of IPC, which was perhaps vital. Although, it is true that present case being a case of acquittal, there is a double presumption in favour of Respondent of his innocence, mere grant of leave to the State to prefer an appeal would in no way effect said presumption as it is well settled that, the Appellate Court would reverse an acquittal only for very substantial and compelling reasons. Interference of an order of acquittal would arise, when the Appellate Court examines the order of acquittal on merits. The present application for leave cannot definitely be termed as arbitrary. Arguable points serious in nature have been raised which need to be heard on merits. In the circumstances of present case, this Court is of view, that leave to appeal ought to be granted to the State. High Court held that, appeal is not frivolous and prima-facie, it is evident that, present appeal needs deeper consideration after grant of leave by this Court.


State of Punjab v. Bhag Singh MANU/SC/1050/2003
: (2004) 1 SCC 547

Tags : Leave to appeal Grant

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