Mohindra Hire
Purchase Vs. Jarnail Singh [2008] INSC 2052 (1 December 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 810 OF 2003
Mohindra Hire Purchase ...Appellant Versus Jarnail Singh ...Respondent
Dr. ARIJIT PASAYAT,
J.
1.
Challenge
in this appeal is to the judgment of a Division Bench of the Punjab and Haryana
High Court dismissing the application filed by the appellant in terms of
Section 378(4) of the Code of Criminal Procedure, 1973 (in short the `Code').
Appellant had lodged a complaint alleging that cheques issued by the
respondents were not honoured by the Bank and in spite of service of notice to
the respondent demanding repayment of loan amount, the respondent failed to pay
the amount. A complaint under Section 138 of the Negotiable Instruments Act,
1881 (in short the `Act') was filed before the learned Chief Judicial
Magistrate, Jalandhar, in Complaint Case no.61 of 1998. The said Complaint Case
was dismissed by the learned Chief Judicial Magistrate. As noted above,
petition in terms of Section 378 (3) of the Code was filed, seeking leave to
file appeal before the High Court, which by the impugned judgment dismissed the
same.
2.
Learned
counsel for the appellant submitted that the order passed was a cryptic one and
no reasons have been indicated for not granting leave to file an appeal.
3.
There
is no appearance on behalf of the respondent in spite of service of notice.
4.
According
to learned counsel for the appellant it was imperative on the High Court to
indicate reasons as to why the prayer for grant of leave was found untenable.
In the absence of any such reasons the order of the High Court is indefensible.
Section 378(3) of the Code deals with the power of the High Court to grant
leave in case of acquittal. Section 378 of the Code reads as follows:
"378. Appeal in
case of acquittal. (1) Save as otherwise provided in sub-section (2) and
subject to the provisions of sub-sections (3) and (5) - (a) the District
Magistrate may, in any case, direct the Public Prosecutor to present an appeal
to the Court of Session from an order of acquittal passed by a Magistrate in
respect of a cognizable and non-bailable offence;
(b) the State
Government may, in any case, direct the Public Prosecutor to present an appeal
to the High Court from an original or appellate order of an acquittal passed by
any court other than a High Court [not being an order under clause (a)] or an
order of acquittal passed by the Court of Session in revision.
(2) If such an order
of acquittal is passed in any case in which the offence has been investigated
by the Delhi Special Police Establishment constituted under the Delhi Special
police Establishment Act, 1946 (25 of 1946) or by any other agency empowered to
make investigation into an offence under any Central Act other than this Code,
the Central Government may, subject to the provisions of sub-section (3), also
direct the Public Prosecutor to present an appeal - (a) to the Court of
Session, from an order of acquittal passed by a Magistrate, in respect of a
cognizable and non-bailable offence;
3 (b) to the High
Court from an original or appellate order of an acquittal passed by any Court
other than a High Court [not being an order under clause (a)] or an order of
acquittal passed by the Court of Session in revision.
(3) No appeal to the
High Court under sub-section (1) or sub-section (2) shall be entertained except
with the leave of the High Court.
(4) If such an order
of acquittal is passed in any case instituted upon Complaint and the High
Court, on an application made to it by the complainant in this behalf, grants,
special leave to appeal from the order of acquittal, the complainant may
present such an appeal to the High Court.
(5) No application
under sub-section (4) for the grant of special leave to appeal from an order of
acquittal shall be entertained by the High Court after the expiry of six
months, where the complainant is a public servant, and sixty days in every
other case, computed from the date of that order of acquittal.
(6) If in any case,
the application under sub-section (4) for the grant of special leave to appeal
from an order of acquittal is refused, no appeal from that order of acquittal
shall lie under sub-section (1) or under sub- section (2)."
5.
The
Trial Court was required to carefully appraise the entire evidence and then
come to a conclusion. If the Trial Court was at lapse in this regard the High
Court was obliged to undertake such an exercise by entertaining the appeal. The
High Court ought to have in such circumstances granted leave and thereafter as
a first court of appeal, re-appreciated the entire evidence on the record
independently and returned its findings objectively, as regards guilt or
otherwise of the accused. It has failed to do so. The questions involved were
not trivial. The High Court has not given any reasons for refusing to grant
leave to file appeal against acquittal, and seems to have been completely
oblivious to the fact that by such refusal, a close scrutiny of the order of
acquittal, by the appellate forum, has been lost once and for all. The manner
in which appeal against acquittal has been dealt with by the High Court leaves
much to be desired. Reasons introduce clarity in an order. On the 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 order not sustainable. Similar view was
expressed in State of U.P. v. Battan and Ors (2001 (10) SCC 607). About two
decades back, in State of Maharashtra v. Vithal Rao Pritirao Chawan (AIR 1982
SC 1215) the desirability of a speaking order while dealing with an application
for grant of leave was highlighted. The requirement of indicating reasons in
such cases has been judicially recognized as imperative. The view was
re-iterated in Jawahar Lal Singh v. Naresh Singh and Ors. (1987 (2) SCC 222).
Judicial discipline
to abide by declaration of law by this Court, cannot be forsaken, under any
pretext by any authority or Court, be it even the Highest Court in a State,
oblivious to Article 141 of the Constitution of India, 1950 (in short the
`Constitution').
6.
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
live links between the mind of the decision taker and 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.
7.
The
above position was highlighted in State of Punjab v. Bhag Singh (2004 (1) SCC
547).
8.
In
the instant case, the High Court ought to have granted leave. The High Court
shall hear the appeal on merits. The appeal is allowed. However, we have expressed
no opinion on the merits of the case.
............................................J.
(Dr. ARIJIT PASAYAT)
...........................................J
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