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Thursday, December 13, 2012

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.-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.


                                                             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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