Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 2031 2012
[Arising out of SLP (CRL.) No. 9775 of 2012 [(CRL.M.P. NO. 24427 of 2012)]
Kumari Shaima Jafari ….. Appellant
Versus
Irphan @ Gulfam and Ors. … Respondents
J U D G M E N T
Dipak Misra, J.
[CRL.M.P. NO. 24427 OF 2012]
This is an application for grant of permission to file Special Leave
Petition under Article 136 of the Constitution of India for assailing the
judgment and order dated 4.7.2012 passed in Government Appeal No. 3432 of
2011 by the Division Bench of the High Court of Judicature at Allahabad,
whereby the Bench declined to entertain the appeal directed against the
judgment of acquittal rendered by the learned Additional Sessions Judge,
Kanpur Nagar in S.T. No. 944 of 2007 wherein
the accused persons faced
trial for the offences punishable under Sections 363, 366, 328, 323, 506,
368 and 376(2)(g) of the Indian Penal Code (for short “the IPC”).
2. On a perusal of the material on record, there cannot be any dispute
that
the appellant was the complainant and the real aggrieved party. Being
aggrieved by the decision of the High Court, she has sought permission to
prefer the special leave petition. Regard being had to the essential
constitutional concept of jurisdiction under Article 136 of the
Constitution of India as has been stated in Arunachalam v. P.S.R.
Sadhanantham[1] and the pronouncement by the Constitution Bench in P.S.R.
Sadhanantham v. Arunachalam[2] where the assail was to the decision in
Arunachalam (supra) under Article 32, we allow the application and permit
the applicant to prosecute the Special Leave Petition. The Crl.M.P. No.
24427 of 2012 is accordingly disposed of.
3. Leave granted.
4. The spinal issue that has spiralled to this Court is
whether the
appeal preferred by the Government questioning the legal substantiality of
the judgment of acquittal could have been dismissed by the High Court in
such a manner as it has been done.
5. At this juncture, it is apposite to state that the complainant had
filed Appeal No. 1674 of 2011 which has also been dismissed by another
Division Bench on the foundation that when the Government Appeal had
already met its fate of dismissal, there was no justification to entertain
the said appeal. No fault can be found in the order passed by the Division
Bench dealing with the appeal preferred by the complainant as that cannot
survive after the Coordinate Bench had given the stamp of imprimatur to the
judgment of acquittal passed by the learned trial Judge in the Government
Appeal. Hence, the prayer has been restricted and, rightly so, by the
learned counsel for the appellant to the assail of the judgment passed in
the Government Appeal.
6. To dwell upon the seminal issue, it is seemly to reproduce the
judgment passed by the High Court in appeal. It reads thus: -
“The learned trial Judge has discussed elaborately the evidence
of PW1, the prosecutrix, which appears at pages 12 to 20 of the
judgment in the light of submissions of the defence and we are
satisfied that it could not be a case under any of the sections
for which the accused had been charged and tried. The judgment
herein suffers from no perversity and, as such, the appeal is
dismissed.”
7. It is urged by Mr. Shakil Ahmed Syed, learned counsel for the
complainant-appellant, that it is obligatory on the part of the High
Court while dealing with an appeal to ascribe reasons and not to
dismiss it in a cryptic manner. He would further submit that
reference to certain paragraphs of the judgment of the trial Court
would not clothe the decision of the High Court to be reflective of
appreciation and reason but, on the contrary, it would still be an
apology for reason which the law does not countenance.
8. The issue that emerges for consideration is whether the aforesaid
delineation by the High Court in appeal can be treated to be informed
with reason. At this stage, we think it apt to refer to certain
authorities of this Court where there has been illumined enunciation
of law as regards the duty of the High Court while dealing with
criminal appeals, whether it may be an appeal preferred by the
Government or an application for leave to appeal by the complainant
against the judgment of acquittal.
9. In State of Uttar Pradesh v. Jagdish Singh and Others[3], a three-
Judge Bench, while dealing with the role of the High Court at the time
of disposal of a criminal appeal, stated thus: -
“This Court has observed before, in more than one case, that when
the High Court disposes of a criminal appeal it should set forth
the reasons, even though briefly, in its order. That is a
requirement necessitated by the plainest considerations of
justice. We are constrained to remark that the repeated
observations of this Court have not received the attention which
they deserve. The impugned order before us does not disclose the
reasons for making it. We trust that it will not be necessary for
us to make these observations in any future case.”
10. In State of U.P. v. Haripal Singh and Another[4] while laying
emphasis on ascribing of reasons while disposing a criminal appeal, a two-
Judge Bench has opined thus: -
“It appears that the appeal was preferred by the State of Uttar
Pradesh against the order of acquittal dated 24-5-1989 passed by
the Special Sessions Judge, Pilibhit in Case No. 153 of 1986. The
said sessions case was filed against the respondent-accused under
Section 302 read with Sections 307 and 34 IPC. The leave
application was dismissed summarily without indicating any reason
and the consequential order of dismissal of appeal was also passed
without indicating any reason. It is really unfortunate that the
appeal was disposed of without giving any reason whatsoever. On 26-
4-1988, against a similar order of dismissal in limine passed by
the Allahabad High Court in State of U.P. v. Jagdish Singh1 (an
appeal) was moved before this Court and a three Judges' Bench of
this Court deprecated such order disposing of the appeal without
giving any reason. Unfortunately, a similar improper order has
been passed in this case. To say the least, it is a sorry state of
affairs. We, therefore, allow this appeal, set aside the order of
dismissal of the appeal in limine and send the matter back to the
High Court with a direction to dispose of the matter within a
period of four months from the date of receipt of this order.”
11. Yet again, in Narendra Nath Khaware v. Parasnath Khavare and
Others[5], this Court had the occasion to deal with such a situation. In
that context, the Court observed thus: -
“We are constrained to observe a growing tendency with the High
Courts in disposing of Criminal Appeals involving vexed questions
of law and fact in cursory manner without going into the facts and
the questions of law involved in the cases. May be this approach
is gaining ground on account of huge pendency of cases. But such a
summary disposal is no solution to the problem of arrears of cases
in courts. Disposal of appeals where the High Court is the first
court of appeal in such a manner results in denial of right of
appeal to the parties. So long as the statute provides a right of
appeal, in our view the court will be failing in its duty if the
appeal is disposed of in such a casual and cavalier manner as the
High Court has done in the present case.”
12. Be it noted, in the above-referred case, an appeal against acquittal
was preferred by the State of Bihar and the High Court had dismissed the
appeal by stating that it was clear from the perusal of the record that the
witnesses named in the fardbayan had not been examined by the prosecution
and also the witnesses examined in Court were examined by the police after
eight months after the date of occurrence. The High Court had also stated
that the investigating officer had not been examined. The said
deliberation was treated to be unsatisfactory and, if fact, not appreciated
by this Court.
13. From the aforesaid pronouncements, it is graphically clear that the
deliberation by the High Court while exercising criminal appellate
jurisdiction has to be reflective of due cogitation and requisite
rumination. It must reflect application of mind, consideration of facts in
proper perspective and appropriate ratiocination either for affirmation or
reversal of the judgment. The reasons ascribed may not be lengthy but it
should be cogent, germane and reflective. It is to be borne in mind, to
quote from Wharton’s Law Lexicon: -
“The very life of law, for when the reason of a law once ceases,
the law itself generally ceases, because reason is the foundation
of all our laws.”
14. This Court, in Raj Kishore Jha v. State of Bihar and others[6] and
State of Orissa v. Dhaniram Luhar[7],
had held that “reason” is the
heartbeat of every conclusion and without the same, it becomes lifeless.
It is dangerous to forget that reason is the essential foundation on which
a conclusion can be based. Giving reasons for an order is the sacrosanct
requirement of law which is the aim of every civilized society. And
intellect respects it. It would not be out of place to state here that the
reasons in criminal jurisprudence must flow from the material on record and
in this regard, a line from Bossuet is worth reproducing: -
“The heart has reasons that reason does not understand.”
We have said so as a Judge should not be guided by any kind of emotion,
prejudice or passion while giving his reasons.
15. At this juncture, it may be instructive to sit in a Time Machine and
have a look at what our “Shastras” have stated about the role of an
adjudicator. While describing the role of a Judge, it has been stated
thus:-
“Vivaade pruchhati pprasnam pratiprasnam tathaiva cha
Nyayapurvancha vadati pradvivaaka iti smrutah.”
The free English translation of the same would be that he who puts
questions and counter questions (to petitioner and respondent) in a dispute
and gives his concluding observations is called ‘Praadvivaakah’ or a Judge.
16. In certain ancient texts while describing a Judge, it has been laid
down that a Judge is also called a ‘vivaakah’ i.e. he who considers the
matter from legal spectrum after applying his mind. Be it noted ‘vivek’
means conscience. In another place in smritis it has been said that
adjudicator has to decide the dispute with great care and caution after
patient hearing.
17. A Judge in the times of yore in this country was wedded to Dharma.
We are not going to delve into the connotative expanse of the term
“Dharma”. In one context, it has been stated that Dharma is not a thing
that can be determined by any person as per his whim. Thus, personal whim
or for that matter any individual notion has no place while doing an act of
justice which is a facet of Dharma. In Nyaya Shastras, there is reference
to the methodology of inference which involves a combination and inductive
and deductive logic. The logic, as is understood, means :-
“The science of right reasoning or the science of discussion.”
18. We have referred to the aforesaid concepts solely for the purpose
that even the ancient wisdom commanded that the decision has to be founded
on reasons.
19. Coming to the judgment passed by the High Court,
it is clear as a
cloudless sky that it does not show any contemplation or independent
application of mind as required of an appellate Court.
Reference to the
trial Court judgment in such a manner would not clothe the judgment to be
reflective of reasons or indicative of any analysis.
It does not require
Solomon’s wisdom to state that it is absolutely sans reasons, bereft of
analysis and shorn of appreciation.
Thus viewed, this Court has no other
option but to overturn the same and send the appeal for re-hearing to the
High Court and we so do.
20. Resultantly, the appeal is allowed and the judgment passed by the
High Court in Government Appeal No. 3432 of 2011 is set aside and the
appeal is remitted for re-hearing by the High Court.
……………………………….J.
[K. S. Radhakrishnan]
……………………………….J.
[Dipak Misra]
New Delhi;
December 11, 2012
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[1] (1979) 2 SCC 297
[2] (1980) 3 SCC 141
[3] 1990 (Supp) SCC 150
[4] (1998) 8 SCC 747
[5] (2003) 5 SCC 488
[6] JT (2003) Supp 2 SCC 354
[7] JT (2004) 2 SC 172
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