PETITIONER:
STATE OF RAJASTHAN
Vs.
RESPONDENT:
RAMDEEN & OTHERS
DATE OF JUDGMENT04/03/1977
BENCH:
GOSWAMI, P.K.
CHANDRACHUD, Y.V.
SHINGAL, P.N.
CITATION:
1977 AIR 1328 1977 SCR (3) 139
1977 SCC (2) 630
ACT
Code of Criminal Procedure, 1973, s. 378(1) and
(3)--Whether two separate petitions are necessary under
sub-section (1) and (3), or a composite memorandum of
appeal can contain prayer for leave to appeal.
HEADNOTE
The State filed an application under s. 378(3) of the
Cr.P.C, 1973, for leave to appeal against the acquittal of
the respondents, of the charges under s. 302 and 302/149
I.P.C., by the Trial Court. The application, although made
under s. 378(3) contained all the requisites for a memoran-
dum of appeal. The High Court granted the appellant leave
to the appeal, but dismissed the appeal filed thereafter, on
the ground that it had not been filed within ninety days of
the date of judgment appealed from, and was therefore time-
barred under Art. 114(a) of the Limitation Act, 1963.
Allowing the appeal by special leave the Court,
HELD (1) The High Court has not laid down any rules in
the matter of application for leave to appeal by the State.
The matter will have to be decided in terms of s. 378(1)
and (3) of the Code of Criminal Procedure, 1973. An appeal
can be filed by the State within ninety days from the date
of the order of acquittal, and a prayer may be included in
that appeal for entertaining the appeal under sub-section
(3) of section 378 Cr.P.C. The appeal may otherwise become
time-barred if the High Court takes more than ninety days
for disposal of the application for leave, and refuses to
exercise its jurisdiction to condone the delay. The right
conferred under the section cannot be put in peril by an
interpretation of section 378, Cr.P.C. which is likely to
affect adversely or even perhaps to destroy that right.
[141 C-H]
(2) The fact that the appellant’s application mentioned
section 378(3) is not decisive of the true character of the
application which to all intents and purposes was a memoran-
dum of appeal. [142 C-D]
JUDGMENT
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
343 of 1976.
(Appeal by Special Leave from the Judgment and Order
dated 27-1-1975 of the Rajasthan High Court in D.B. Crl.
Appeal No. 575/74)
S.M. Jain, I. Makwana and D. Shandari, for the appellant.
Doongar Singh and S.K. Garnbhir, for the respondents.
The Judgment of the Court was delivered by
GOSWAMI, J. The respondents were tried by the Sessions
Judge, Merta (Rajasthan) for offences under sections 302,
302/149 and some other minor sections of the Indian Penal
Code. Respondent Goparam was acquitted of all the charges.
The other respondents also were acquitted of the charges
under .sections 302 and 302/149, IPC. Respondent Sangram was
convicted under section 304 Part 11, IPC. Respondent Dayal-
ram was convicted under section 324 IPC. Respondents
Budharam and Ramdeen were convicted under section 323
140
Being aggrieved by the judgment of the Sessions Judge,
the State of Rajasthan preferred an appeal against acquittal
of the major charges under section 378 of the Code of Crimi-
nal Procedure, 1973.
The Sessions Judge delivered the judgment on March 30,
1974 and the Code of Criminal Procedure, 1973, came into
force from April 1, 1974. The appeal was, therefore,
preferred under the new Code.
It appears that the State of Rajasthan preferred a
petition for leave to appeal under section 378(3) of the
Code of Criminal Procedure, 1973, on June 27, 1974,
which was within the period of limitation prescribed
under article 114(b) of the Limitation Act, 1963. Article
114(a) of the Limitation Act, 1963, provides for a period
of limitation for appeal from. an order of acquittal under
subsection (1) or sub-section (2) of section 417 of the Code
of Criminal Procedure, 1898 (hereinafter to be described as
the Old Code). The Limitation Act being an act of the year
1963, does not naturally refer to section 378 of the Code of
Criminal Procedure Code, 1973. Section 378 of the Code of
Criminal Procedure, 1973, is equivalent to section 417 of
the Old Code with an important difference in case of appeal
against acquittal by the State. Under the Old Code there
was no provision for taking leave of the High Court by the
State for presentation of an appeal to the High Court
against an original or appellate order of acquittal. There
was, however, provision for obtaining special leave to
appeal under section 417(3) of the Old Code against an order
of acquittal in any case instituted upon complaint. With
some changes about limitation, with which we are not con-
cerned, provision for special leave to appeal in any case
instituted upon complaint has been retained in the new Code.
Unlike in the Old Code, section 378(3) provides that no
appeal under sub-section (1) or sub-section (2) thereof
shall be entertained except with the leave of the High
Court. Such a. provision for obtaining leave of the High
Court by the State was absent in the Old Code.
Since the State flied an appeal against acquittal in
this case soon after the coming into force of the new Code,
the State of Rajasthan preferred an application describing
it as a petition for leave to appeal under section 378(3) of
the Code of Criminal Procedure, 1973, with a prayer "to
accept this petition to file an appeal in the present
case ...... "Although the application was described as one
under section 387(3) of the Code of Criminal Procedure, all
the facts and other requisites for a memorandum of appeal,
including the grounds on which the appeal was rounded, were
given in as great a detail as was necessary. The High
Court after hearing the State granted leave to appeal on
August 16, 1974. The State thereafter filed again a
petition of appeal on September 10, 1974. This date is
clearly. beyond the period of ninety days prescribed under
article 114(e) of the Limitation Act, 1963. The High Court
dismissed the appeal on January 27, 1975 as time-barred.
In view of section 8 of the General Clauses Act, 1897, it
is not disputed before us that article 114(a) is applicable
in this case. The respondents, however, submit that the
petition of appeal should have
141
been presented within ninety days of the judgment of the
Sessions Judge which was on March 30, 1974. Since that was
not done and there was not even an application for condona-
tion of delay, the High Court had no alternative then to
dismiss the appeal as time-barred. The respondents further
add that it was the practice of the Rajasthan High Court to
present a memorandum of appeal after obtaining leave of the
High Court. It was, therefore, incumbent upon the appellant
to have preferred the petition of appeal within ninety days
as prescribed under the law. The High Court also while
refusing leave to appeal to the Supreme Court observed in
its order that "the practice of this court is that separate
memo of appeal has to be filed in all matters relating to
the grant of leave to appeal under section 378 Cr. P-C.".
It is difficult to appreciate the reference to practice,
by the High Court, so far as appeals by State are concerned
when the new Code of Criminal Procedure, for the first time,
provided for obtaining leave to appeal by the State only
from April 1, 1974. It is admitted that there are no rules
laid down by the High Court in the matter of application for
leave to appeal by the State. It is, therefore, not possi-
ble to decide the matter relying upon the so-called practice
soon after the provision has been introduced.
The matter will, therefore, have to be decided in terms
of section 378(1) and (3) of the Code of Criminal Procedure,
1973. Section 378(1), so far as it is material for our
purpose, provides that the State Government may direct the
Public Prosecutor to present an appeal to the High Court
from an original or appellate order of acquittal. Sub-
section (3) of that section provides that such an appeal
shall not be entertained except with the leave of the High
Court. 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 should be
lodged first and only after grant of leave by the High Court
an appeal may be preferred against the order of acquittal.
If such a procedure is adopted, as above, it is likely, as
it has happened in this case, the appeal may be time-barred
if the High Court takes more than ninety days for disposal
of the application for leave. The possibility that the High
Court may always in such cases condone the delay on applica-
tion filed before it does not, in law, solve the legal
issue. The right conferred by section 378(1), Cr.P.C.,
upon the State to prefer an appeal against acquittal will be
jeopardised if such a procedure is adopted, for in certain
cases it may so happen that the High Court may refuse to
exercise its discretion to condone the delay. The right
conferred under the section cannot be put in peril by an
interpretation of section 378, Cr.P.C. which is likely to
affect adversely or even perhaps to destroy that right.
Besides, under article 114 of the Limitation Act, in an
appeal from an order of acquittal by the State, the period
of limitation is
142
ninety days from the date of the order appealed from; where-
as in an appeal from an order of acquittal, in any case
instituted upon complaint, the period is thirty days from
the date of the grant of special Leave. Thus there is a
clear distinction between the two types of appeals with
regard to terminus a quo under article 114 It is there-
fore, not fiecessary to wait until the grant of leave by the
High Court to present a memorandum of appeal against acquit-
tal at the instance of the State. Thus appeal can be filed
by the State within ninety days from the date of the order
of acquittal and a prayer may be included in that appeal for
entertaining the appeal under sub-section (3) of section
378, Cr. P.C. If the leave sought for is not granted by the
High Court, the appeal is not entertained and stands dis-
missed.
We are, therefore, clearly of opinion that the
application for leave to appeal, which was made by the
State in this case, is equivalent to a memorandum of appeal
under section 373(1) read with sub-section (3) of that
section of the Code of Criminal Procedure 1973. The fact
that the application mentioned section 378(3) is not deci-
sive of the true character of the applicant1on which to
all
intents and purposes was a memorandum of appeal. There was
There was therefore, no need for presentation of a second
petition of appeal nor for an application for condonation of
delay in this case. The petition of appeal was filed
within time and the High Court committed an error of law in
dismissing the same as time-barred.
In the result the appeal is allowed. The order of the
High Court is set aside. The petition of appeal of June 27,
1974, shall be restored to the file of the High Court and
treated as a memorandum of appeal under section 378(1) of
the Code of Criminal Procedure, 1973, and, since leave had
already been granted by the High Court, the appeal will be
disposed of in accordance with law.
Appeal allowed.
143