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TMI Blog1982 (1) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) thereof, setting out therein the grounds of appeal. According to the practice prevalent in the Madhya Pradesh High Court, the application was listed before a Single Judge, as per rule 1 (q), Chapter I, Part I of the Madhya Pradesh. High Court Rules, The learned Single Judge refused to grant leave to appeal under sub-s. (3) of s. 378 on the ground that the judgment of acquittal was based on appreciation of evidence and was not perverse or unreasonable. The State Government applied for grant of a certificate under Art. 134 (1) (c) of the Constitution. The application for grant of a certificate was placed before and heard by a Division Bench. The contention on behalf of the State Government was that an application for grant of leave under sub-s. (3) of s. 378 of the Code must be treated as a part of the appeal preferred by the State Government under sub-s. (1) thereof, and therefore, should have been placed before a Bench of two Judges and consequently the order of the learned Single Judge rejecting the application for grant of leave under sub-s. (3) of s. 378 of the Code was a nullity. The Division Bench, following the decision of another Division Bench in the State of Madhya Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de of Criminal Procedure, other than; xx xx xx xx (ii) an appeal by the Provincial Government under section 417 of the Code from an order of acquittal." The heading of Chap. I in which the rule finds place is "Jurisdiction of a Single Judge and of Benches of the Court." It is urged that any breach of the rule would render the judgment a nullity. Rule 4 of the said Rules provides that 'Save as provided by law or by rules or by special orders of the Chief Justice, all matters shall be heard and disposed of by a Bench of two Judges'. By reason of s. 8 (2) of the General Clauses Act, 1897, reference to an appeal against acquittal under s. 417 (1) of the Code of Criminal Procedure, 1898 (hereinafter referred to as 'the old Code') by the Provincial Government has to be read as an appeal against acquittal by the State Government under sub-s. (1) of s. 378. It is contended on behalf of the State Government that the making of an application for leave under sub-s. (3) of s 378 of the Code is tantamount to filing an appeal under sub- s. (1) thereof, and the High Court can grant leave and entertain the appeal at one and the same time, inasmuch as such an ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;. The matter was, therefore, placed before a Division Bench. The learned Judges of the High Court referred to the report of the Law Commission and observed that the legislative object in re- enacting the provisions of s. 417 of the old Code with the addition of the new provision contained in sub-s. (3) of s. 378 of the Code, was that there had to be a further scrutiny of a State appeal by the Court even prior to the stage of admission, requiring the Court to consider at the very outset whether the appeal should be entertained or not. It was only after the appeal was entertained with the 'leave' of the Court that it had to be heard for admission and it may be dismissed summarily without notice to the other side. It was further observed that the legislature brought about the change while accepting the recommendation of the Law Commission to retain the power of the High Court to dismiss State appeals summarily without notice to the respondents. In substance, the decision in Narendrasingh's case, as expressed in the words of the learned Judges, may be thus stated: "(A) the very outset on an appeal against acquittal being lodged by the State, the High Court is to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es that: "3. No appeal under sub-s. (1) or sub-s. (2) shall be entertained except with the leave of the High Court." Sub-s. (4) and sub-s. (5) deal with an order of acquittal passed in any case instituted upon a complaint. Sub-s. (4) provides that if an order of acquittal is passed in such a case, and the High Court on an application made to it by the complainant in that behalf, grants 'special leave' to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. Sub-s. (5) provides for two distinct periods of limitation. No application under sub-s. (4) for grant of special leave to appeal from an order of acquittal in a complaint case shall be entertained by the High Court at the expiry of six months where the complainant is a public servant and sixty days in other cases computed from the date of the order of acquittal. There is no period of limitation prescribed for presenting an application for grant of leave to appeal under sub-s. (3) of s. 378 from an order of acquittal passed in a case instituted otherwise than upon a complaint, obviously because the Code does not contemplate the making of an application for leave und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... susceptible of any such construction. The Law Commission in its 48th Report had observed. "While one may grant that cases of unmerited acquittals do arise in practice, there must be some limit as to the nature of cases in which the right should be available." And, keeping in view the general rule in most common law countries not to allow an unrestricted right of appeal against acquittals, it recommended: "With these considerations in view, we recommend that appeals against acquittals under s. 417, even at the instance ' of the Central Government or the State Government, should be allowed only if the High Court grants special leave. It may be pointed out that even now the High Court can summarily dismiss an appeal against an acquittal, or for that matter, any criminal appeal. (Section 422, Criminal P.C.). Therefore, the amendment which we are recommending will not be so radical a departure as may appear at the first sight. It will place the State and the private complainant on equal footing. Besides this, we ought to add that under s. 422 of the Code, it is at present competent to the appellate Court to dismiss the appeal both of the State and of the comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se where the Rajasthan High Court granted the State Government leave to appeal under sub-s. (3) of s. 378 of the Code, but dismissed the appeal filed thereafter on the ground that it had not been filed within ninety days from the judgment appealed from and was therefore barred by limitation under Art. 114 of the Limitation Act, 1963. The application for grant of leave under sub-s. (3) contained all the requisites of a memorandum of appeal and had been filed within ninety days from the date of order of acquittal but was not accompanied by a petition of appeal. It was held that an appeal under sub-s. (1) of s. 378 was an integral part of an application for leave to appeal under sub-s (3): Accordingly, the order passed by the High Court dismissing the appeal as barred by limitation was set aside. In dealing with the question, it was observed: "Under the law it will be perfectly in order if a composite application is made giving the necessary facts and circumstances of the case along with the grounds which may be urged in the appeal with a prayer for leave to entertain the appeal. It is not necessary, as a matter of law, that an application for leave to entertain the appeal shou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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