Tutul Kumari Sen Vs.
State of Jharkhand & ANR  INSC 849 (28 April 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 19 OF 2003 TUTUL
KUMARI SEN .. APPELLANT vs.
JUD GMENT Dr.
Challenge in this
appeal is to the judgment of a learned single Judge of Jharkhand High Court
allowing the petition filed by the respondent No.2.
The factual matrix
needed to be noted in brief.
An application was
filed by the respondent No.2 praying for discharge in terms of Sec.227 of the
Code of Criminal, Procedure 1973 (in short `the Code'). The move was opposed by
the State. The case was registered for alleged commission of offences
punishable under Sections 493 and 376 of the Indian Penal Code, 1860 (in short
`the IPC') on the basis of report filed by the present appellant.
The allegation in the
FIR is that after two days of Baisakh Purnima the accused came to the house of
informant, picked her and committed rape on her. It was further the case of the
informant that on the pretext that the accused would marry her, she was
repeatedly subjected to rape and became pregnant and started pressurising on
the accused for marriage. The accused and his family members refused and
therefore the information was lodged. After investigation police submitted a
charge-sheet. The application for discharge was filed primarily on the ground
that age of the informant was not as was shown and therefore no offence under
either Sec. 376 or 493 IPC was made out.
The trial Court held
that this was not a case where the prayer for discharge could be accepted.
The respondent No.2
moved the High Court by filing a criminal revision petition and High Court
dispose of the revision petition with the following order:
"On going through
the impugned order and after hearing the learned counsel for the parties, I
find that a bare perusal of the FIR in question (Sessions Case No. 312/2001,
Ramgarh P.S.Case No.69/2000) does not disclose the commission of any offence.
In that view of the matter, therefore, the learned trial Court (Ist Asstt.
Sessions Judge, Dumka) was patently in error in refusing to discharge the
This petition is
allowed. The impugned order is set aside. The petitioner is discharged from the
-3- In support of
the appeal learned counsel for the appellant submitted that High Court has
clearly erred in interfering in the matter.
The High Court's
conclusion that commission of any offence has not been disclosed is contrary to
the materials on record and on misreading of the FIR lodged.
Learned counsel for
the respondent No.2 supported the judgment.
We find that the
order of the High Court is practically unreasoned. It is not certainly the way
a revision petition was to be disposed of. There is absolutely no discussion as
to why the conclusions of the trial Court in rejecting the prayer made in terms
of Sec.227 of the Code were unsustainable. No basis has also been indicated as
to why High Court of the view that no offence was disclosed in the FIR. Reasons
introduce clarity in an order. On plainest consideration of justice, the High
Court ought to have set forth its reasons, howsoever brief, in its order
indicative of an application of its mind, all the more when its order is amenable
to further avenue of challenge. The absence of reasons has rendered the High
Court's judgment not sustainable. Even in respect of administrative orders Lord
Denning M.R. in Breen v. Amalgamated Engineering Union (1971 (1) All E.R. 1148)
observed "The giving of reasons is one of the fundamentals of good
administration".In Alexander Machinery (Dudley) Ltd. v. Crabtree (1974 LCR
120) it was observed:
"Failure to give
reasons amounts to denial of justice. Reasons are -4- live links between the
mind of the decision taker to the controversy in question and the decision or
conclusion arrived at". Reasons substitute subjectivity by objectivity.
The emphasis on recording reasons is that if the decision reveals the
"inscrutable face of the sphinx", it can, by its silence, render it
virtually impossible for the Courts to perform their appellate function or
exercise the power of judicial review in adjudging the validity of the
decision. Right to reason is an indispensable part of a sound judicial system,
reasons at least sufficient to indicate an application of mind to the matter
before Court. Another rationale is that the affected party can know why the
decision has gone against him. One of the salutary requirements of natural
justice is spelling out reasons for the order made, in other words, a speaking
out. The "inscrutable face of a sphinx" is ordinarily incongruous
with a judicial or quasi-judicial performance. This Court in State of Orissa v.
Dhaniram Luhar (2004 (5) SCC 568) has while reiterating the view expressed in
the earlier cases for the past two decades emphasised the necessity, duty and
obligation of the High Court to record reasons in disposing of such cases. The
hallmark of a judgment/order and exercise of judicial power by a judicial forum
is to disclose the reasons for its decision and giving of reasons has been
always insisted upon as one of the fundamentals of sound administration
justice-delivery system, to make known that there had been proper and due
application of mind to the issue before the Court and also as an essential
requisite of principles of natural justice. Any judicial power has to be
judiciously exercised and the mere fact that discretion is vested with the
court/forum to exercise the same either way does not constitute any license to
exercise it at whims or fancies and arbitrarily as used to be conveyed by the
well-known saying: "varying according to the Chancellor's foot".
Arbitrariness has been always held to be the anathema of judicial exercise of
any power, all the more so when such orders are amenable to challenge further
before higher forums. Such ritualistic observations and summary disposal which
has the effect of, at times, cannot be said to be a proper and judicial manner
of disposing of judiciously the claim before the courts. The giving of reasons
for a decision is an essential attribute of judicial and judicious disposal of
a matter before courts, and which is the only indication to know about the
manner and quality of exercise undertaken, as also the fact that the court
concerned had really applied its mind.
That being so, we set
aside the order of the High Court and remit the matter to it for fresh
consideration in accordance with law. However, we make it clear that we have
not expressed any opinion on the merits of the case.
The appeal is
disposed of accordingly.
.J. (Dr. ARIJIT PASAYAT)
(ASOK KUMAR GANGULY)
Delhi, April 28, 2009.