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Judgment
Heard Shri Umesh Verma, learned AGA alongwith Shri Arunendra, Shri Badrul Hasan, Shri Anurag Verma, Shri S.N. Tilahri, Shri Pawan Kumar, and Ms. Meera Tripathi, learned counsels appearing for the appellant-State.
As the Court was proceeding to hear the appeal, Shri Umesh Verma, learned AGA alongwith Shri Arunendra, Shri Badrul Hasan, Shri Anurag Verma, Shri S.N. Tilahri, Shri Pawan Kumar, and Ms. Meera Tripathi, learned AGAs raised a preliminary objection that the Court should summon the records in order to decide the appeal and that the appeal cannot be decided summarily.
In this regard, reliance has been placed on Section 385 of the Cr.P.C. to contend that the said provision mandates summoning of the records by the use of the word “shall” in sub-section (2) of Section 385 of the Cr.P.C.
Whether, once the leave to appeal has been granted under Section 378(2) of the Cr.P.C., the records are to be mandatorily summoned for deciding the appeal is thus the preliminary objection which has been raised and which has to be decided.
In this regard, it would be apt to refer to the provisions of Sections 378, 382, 383, 384 & 385of the Cr.P.C.
For the sake of convenience, Sections 378, 382, 383, 384 & 385 of the Cr.P.C. are reproduced hereinbelow:
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;
(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).
382.Petition of appeal.— Every appeal shall be made in the form of a petition in writing presented by the appellant or his pleader, and every such petition shall (unless the Court to which it is presented otherwise directs) be accompanied by a copy of the judgment or order appealed against.
383.Procedure when appellant in jail.—If the appellant is in jail, he may present his petition of appeal and the copies accompanying the same to the officer in charge of the jail, who shall thereupon forward such petition and copies to the proper Appellate Court.
384.Summary dismissal of appeal.— (1) If upon examining the petition of appeal and copy of the judgment received under Section 382 or Section 383, the Appellate Court considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily: Provided that—
(a)no appeal presented under Section 382 shall be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of the same;
(b)no appeal presented under Section 383 shall be dismissed except after giving the appellant a reasonable opportunity of being heard in support of the same, unless the Appellate Court considers that the appeal is frivolous or that the production of the accused in custody before the Court would involve such inconvenience as would be disproportionate in the circumstances of the case;
(c)no appeal presented under Section 383 shall be dismissed summarily until the period allowed for preferring such appeal has expired.
(2)Before dismissing an appeal under this section, the Court may call for the record of the case.
(3)Where the Appellate Court dismissing an appeal under this section is a Court of Session or of the Chief Judicial Magistrate, it shall record its reasons for doing so.
(4)Where an appeal presented under Section 383 has been dismissed summarily under this section and the Appellate Court finds that another petition of appeal duly presented under Section 382 on behalf of the same appellant has not been considered by it, that Court may, notwithstanding anything contained in Section 393, if satisfied that it is necessary in the interests of justice so to do, hear and dispose of such appeal in accordance with law.
385.Procedure for hearing appeals not dismissed summarily.— (1) If the Appellate Court does not dismiss the appeal summarily, it shall cause notice of the time and place at which such appeal will be heard to be given—
(i)to the appellant or his pleader;
(ii)to such officer as the State Government may appoint in this behalf;
(iii)if the appeal is from a judgment of conviction in a case instituted upon complaint, to the complainant;
(iv)if the appeal is under Section 377 or Section 378, to the accused, and shall also furnish such officer, complainant and accused with a copy of the grounds of appeal.
(2)The Appellate Court shall then send for the record of the case, if such record is not already available in that Court, and hear the parties:
Provided that if the appeal is only as to the extent or the legality of the sentence, the Court may dispose of the appeal without sending for the record.
(3)Where the only ground for appeal from a conviction is the alleged severity of the sentence, the appellant shall not, except with the leave of the Court, urge or be heard in support of any other ground.
Perusal of Section 378 of the Cr.P.C. indicates that it deals with the provisions of an appeal in the case of acquittal. Sub-section (3) of Section 378 categorically provides that in the case of acquittal, 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.
In this regard, it would be apt to refer to the judgment of the Apex Court in the case of State of Maharashtra Vs. Sujay Mangesh Poyarekar- (2008) 9 SCC 475 wherein the Apex Court has categorically held as under:-
“19…….It is also true that an appeal can be registered and heard on merits by the High Court only after the High Court grants leave by allowing the application filed under sub-section (3) of Section 378 of the Code.”
From a perusal of the judgment of the Apex Court in the case of Sujay Mangesh Poyarekar (supra) it emerges that an appeal can be registered and heard on merits by the High Court only after the High Court grants leave by allowing the application filed under sub Section (3) of Section 378 of the Cr.P.C.
Thus, it is apparent that in the case of acquittal, after the State Government directs the Public Prosecutor to present an appeal to the High Court, the said appeal cannot be entertained except with the leave of the High Court.
Once the leave has been granted by the High Court, then Section 382 of the Cr.P.C. provides that the appeal shall be made in the form of a petition in writing presented by the appellant or his pleader and to be accompanied by a copy of the judgment or order against him. However, where the appellant is in jail, then the procedure under Section 383 of the Cr.P.C. shall be followed.
Section 384 of the Cr.P.C. gives the power of summary dismissal of an appeal to the Appellate Court where there is no sufficient ground for interfering. However, Section 384 of the Cr.P.C. also provides that no appeal presented under Section 382 of the Cr.P.C. shall be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of the same. Sub-section (2) of Section 384 of the Cr.P.C. provides that before dismissing an appeal under this section, the Court may call for the record of the case.
Thus, it clearly emerges that the legislature has given the power to the Appellate Court to dismiss an appeal summarily and a discretion has been vested in the Appellate Court to either call for the record or not.
Section 385 of the Cr.P.C. is, however, couched differently.
Section 385 of the Cr.P.C. gives the procedure for hearing the appeal not dismissed summarily, meaning thereby that in case an appeal is not dismissed summarily, then the procedure as prescribed under Section 385 of the Cr.P.C. shall be followed, which is the issuance of show cause notice of the time and place at which such appeal would be heard to be given to the appellant or his pleader or to such officer as the State Government may appoint in this behalf; and in case the appeal is from a judgment of conviction in a case instituted upon complaint, to the complainant; and to the accused if the appeal is under Section 377 or Section 378 of the Cr.P.C.
Sub-section (2) of Section 385 of the Cr.P.C. also mandates the Appellate Court to send for the records of the case and hear the parties. However, in case the appeal is only as to the extent or the legality of the sentence, the Court may dismiss the appeal without sending for the record.
From the language used in Sections 384 and 385 of the Cr.P.C., it emerges that a distinction has been carved out in circumstances where the appeal can be dismissed summarily, wherein there is no requirement for calling for the records; rather, a discretion has been given to the Court to call for the records, while Section 385 of the Cr.P.C. clearly mandates the summoning of the records.
The Apex Court in the case of Sujay Mangesh Poyarekar (supra) has clearly held that there cannot be any abstract proposition of law that each and every petition seeking leave to prefer an appeal against an order of acquittal recorded by the learned trial Court must be allowed by the appellate Court and every appeal must be admitted and decided on merits. However, if arguable points have been raised and if the material on record discloses deeper scrutiny and re-appreciation, review or reconsideration of evidence, the appellate Court must grant leave as sought and decide the appeal on merits.
For the sake of convenience, the relevant observations of the Apex Court in the case of Sujay Mangesh Poyarekar (supra) are reproduced below:-
“21.It cannot be laid down as an abstract proposition of law of universal application that each and every petition seeking leave to prefer an appeal against an order of acquittal recorded by a trial Court must be allowed by the appellate Court and every appeal must be admitted and decided on merits. But it also cannot be overlooked that at that stage, the Court would not enter into minute details of the prosecution evidence and refuse leave observing that the judgment of acquittal recorded by the trial Court could not be said to be `perverse' and, hence, no leave should be granted.
22……….
23……….
24.We may hasten to clarify that we may not be understood to have laid down an inviolable rule that no leave should be refused by the appellate Court against an order of acquittal recorded by the trial Court. We only state that in such cases, the appellate Court must consider the relevant material, sworn testimonies of prosecution witnesses and record reasons why leave sought by the State should not be granted and the order of acquittal recorded by the trial Court should not be disturbed. Where there is application of mind by the appellate Court and reasons (may be in brief) in support of such view are recorded, the order of the Court may not be said to be illegal or objectionable. At the same time, however, if arguable points have been raised, if the material on record discloses deeper scrutiny and re-appreciation, review or reconsideration of evidence, the appellate Court must grant leave as sought and decide the appeal on merits.”
Thus, even though where leave to appeal has been granted by the appellate Court under Section 378 of the Cr.P.C, there is no requirement of deciding the appeal after summoning the record more particularly when the legislature in its wisdom has clearly indicated two eventualities as indicated under Sections 384 & 385 of the Cr.P.C. i.e of dismissal of appeals summarily and deciding those appeals which have not been dismissed summarily.
In this regard, it would also be apt to refer to the judgment of the Apex Court in the case of Surya Baksh Singh Vs. State of U.P and ors-(2014) 14 SCC 222 wherein the Apex Court has again considered the difference between Sections 384 & 385 of the Cr.P.C as follows:-
“5.Section 378 of the CrPC inter alia declares that no appeal to the High Court against an order of acquittal shall be entertained except with its express leave. Accordingly, appeals against acquittal are distinct from all others. Section 383 prescribes that if the Appellant is in jail he may present his appeal to the officer in-charge of the jail who shall thereupon forward it to the appropriate Appellate Court. Section 384 enables the dismissal of appeals summarily or in limine provided the Appellant or his pleader has received a reasonable opportunity of being heard. Where appeals are not dismissed summarily, Section 385 prescribes the issuance of notice to the Appellant or his pleader by the State Government indicating the time and place when the appeal has been scheduled to be heard. While the Appellate Court has the option to call for the records of the case at the stage of the initial hearing of an appeal under Section 384 by virtue of use of the word “may”, it becomes mandatory for it to do so at the time of the final hearing.”
Summoning of the records while deciding the appeals summarily as provided under Section 384 of the Cr.P.C has also been considered by a Division Bench of this Court vide order dated 26.09.2022 in Government Appeal No. 591 of 2022 Inre; State of U.P Vs. Vakil wherein the Division Bench of this Court after considering the judgment of the Apex Court in the case of Sujay Mangesh Poyarekar (supra) followed subsequently by the Apex Court in the case of State of Uttar Pradesh Vs. Anil Kumar- (2018) 9 SCC 492 has held as under:-
“8.So far as Section 384 of the Code is concerned it confers power upon the appellate court to dismiss an appeal summarily. The language employed by the Statute in sub-section (1) is that upon examining the petition of appeal and copy of the judgment received under Section 382 or Section 383 the appellate court considers that there is no sufficient ground for interfering it may dismiss the appeal, summarily. The proviso to sub-section 1 only provides that before such dismissal the appellant or his pleader would be given a reasonable opportunity of being heard in support of such petition. Similarly in respect of an appeal preferred under Section 383 Cr.P.C. the dismissal shall be after giving the appellant a reasonable opportunity of being heard unless the appellate court considers that appeal is frivolous or that the production of the accused in custody before the Court would involve such inconvenience as would be disproportionate in the circumstances of the case.
9.Sub-section 2 of Section 384 Cr.P.C. then provides that before summarily dismissing an appeal under Section 383 Cr.P.C. the appellate court may call for record of the case. The cojoint reading of sub-section 1 and 2 of Section 384 Cr.P.C. clearly conveys that the appellate court upon examining the petition of appeal and copy of the judgment received under Section 382 or 383 can summarily dismiss the appeal, if it considers that there is no sufficient ground for interference. The specification of the material to be relied upon in sub-section (1) for the purposes of considering the appeal for summay dismissal denotes the legislative intent that the only material which is required for consideration by the appellate authority is the petition of appeal and the copy of the judgment. Sub-section (2) only enables the appellate court to call for the records of the case even before it proceeds to summarily dismiss the appeal. The Code vests discretion with the appellate court to summon the lower court record before summarily dismissing the appeal, or not. This discretion is to be exercised by the appellate court depending upon the requirement of lower court record for formation of opinion whether sufficient ground exists for interference in appeal.
10.The provision has been considered by the Supreme Court in Hanumat Das Vs. Vinay Kumar AIR 1982 SC 1052, wherein their Lordship observed that non summoning of lower court record in appeal against conviction is not fatal.
11.The use of expression 'may' in sub-section (2) clearly suggests that the power to summon the record is only an enabling provision and is not to be read as shall as is suggested by the learned counsel.”
From a perusal of the aforesaid order, it emerges that the Division Bench has categorically held that Section 384 of the Cr.P.C. confers the power upon the appellate Court to dismiss an appeal summarily if it considers that there is no sufficient ground for interference. The specification of the material to be relied upon in sub Section (1) of Section 384 Cr.P.C. for the purposes of considering the appeal for summary dismissal denotes the legislative intent then the only material which is required for consideration by the appellate court is the petition of appeal and the copy of the judgment. Sub Section (2) only enables the appellate court to call for the records of the case even before it proceeds to summarily dismiss the appeal and the Code has vested the discretion with the Appellate Court to summon the trial Court record before summarily dismissing the appeal and that the discretion is to be exercised by the appellate Court depending upon the requirement of trial Court record for formation of opinion as to whether sufficient grounds exist for interference in appeal.
We may reiterate that the use of the expression “may” in sub Section (2) of Section 384 of the Cr.P.C clearly suggest that the power to summon the record is only an enabling provision and is not be read as “shall” as specifically indicated in Section 385 of the Cr.P.C.
Sub-section (2) of Section 384 of the Cr.P.C empowers the appellate Court to call for the record of the case before dismissing the appeal under sub-Section (1), but it does not make it obligatory on the court to do so, therefore, the position under Section 384 of the CrPC is clear and unambiguous. When a criminal appeal is brought before the High Court, the High Court has to be satisfied that it raises an arguable or substantial question, if it is so satisfied, the appeal should be admitted. If on the other hand, the High Court is satisfied that there is no substance in the appeal and that the view taken by the trial court is substantially correct, it can summarily dismiss the appeal. It is necessary to emphasize that the summary dismissal of the appeal does not mean that before summarily dismissing the appeal, the High Court has not applied its mind to all the points raised by the appellant. Summarily dismissal only means that having considered the merits of the appeal, the High Court does not think it advisable to admit the appeal because, in its opinion, the decision appealed against is correct.
This view also finds support from the judgment of the Apex Court in the case of Hanumat Das Vs. Vinay Kumar- AIR 1982 SC 1052 wherein the Apex Court has held that non summoning of lower Court records in appeal is not fatal.
We may also refer to the judgment of the Apex Court in the case of Dagadu Vs. State of Maharashtra- (1981) 2 SCC 575 wherein the Apex Court was seized of a matter where a criminal appeal against the judgment of the learned trial Court had been dismissed summarily. The Apex Court had placed reliance over its earlier judgments in the cases of Govinda Kadtuji Kadam Vs. State of Maharashtra- (1970) 1 SCC 469 and Sita Ram Vs. State of U.P- (1979) 2 SCC 656 to hold that even if the High Court chooses to dismiss the appeal summarily, some reasons should be recorded so as to enable the Hon’ble Supreme Court to judge whether or not the case requires any further examination.
A careful perusal of the judgment of the Apex Court in the case of Dagadu (supra) would indicate that in both the judgments over which reliance has been placed by the Apex Court namely Govinda Kadtuji Kadam (supra) & Sita Ram (supra), the High Court had summarily dismissed the criminal appeal by the word “rejected” and thus, in this view of the matter, the Apex Court held that even if the criminal appeal is to be dismissed summarily, some reasons should be recorded for the same.
There cannot be any dispute to the aforesaid proposition of law as laid down by the Apex Court inasmuch as reasons in an order are soul of an order. Consequently, even if the criminal appeal is summarily dismissed under Section 384 of the Cr.P.C (now under Section 425 of B.N.S.S) it goes without saying that reasons for the same are to be recorded.
We may also indicate that the Apex Court in the case of Sita Ram (Supra) has upheld the vires of Section 384 of the Cr.P.C. The Apex Court has also held that in the application of Section 384 of the Cr.P.C, the provisions shall be restricted by certain criteria as a permissible exercise in constitutionlisation.
For the sake of convenience, the relevant observations of the Apex Court so far as they are relevant for deciding the preliminary objection as raised by the learned AGAs are quoted below:-
“21.Section 384 is significant because it has a decisive bearing on the State of appeals like the present. This Section is in part a mechanical or meaningful?) reproduction of the corresponding provision (s. 421) in the vintage Code.
25.Counsel for the appellant insisted that an absolute right of appeal, as he described it, casts an inflexible obligation on the court to send for the record of the case, to hear both parties, and to make a reasoned judgment. Therefore, to scuttle the appeal by a summary hearing on a preliminary posting, absent record, ex parte and absolved from giving reasons is to be; absolutist-a position absonant with the mandate of the Enlargement Act and, indeed, of the Constitution in Article 134 (1). Counsel's ipse dixit did not convince us but we have pondered over the issue in depth being disinclined summarily to dismiss.
27.Whatever the protean forms the appellate process may take, the goal is justice so that a disgruntled litigant cannot convert his right of appeal into a bull in a china shop breaking down the court system by sufferance of interminable submissions after several tribunals have screened his case and found it fruitless.
38.We hasten to obviate a misapprehension. Where the subject matter is less momentous, where two courts have already assessed the evidence and given reasoned decisions, pragmatism and humanism legitimate, in appropriate cases, the passing of judgment at the third tier without giving reasons where the conclusion is one of affirmance. Natural justice cannot be fixed on a rigid frame and fundamental fairness is not unresponsive to circumstances. The very fact that the subject matter is not fraught with loss of life or long incarceration and that the appellate or revisionary authority is a high tribunal which has examined the materials are an assurance of competent and conscientious consideration of the facts and the law. Further protection at the third deck by calling for the records or launching on long ratiocination is a waste of judicial time. Our rules of criminal proceedure and those of other countries with mature systems of justice provide for dismissal at the third level without assigning written reasons, not because there are no reasons, but because the tardy need to document them hampers the hearing of the many cases in the queue that press upon the time of the court at that level.
47.We must clarify that very right of appeal does not carry with it all the length of getting the record, hearing both sides and giving full reasons for decisions. Then the institutions of justice will come to a grinding halt. Those who feel otherwise may read with profit, et al, Order 41, Rule 11, Civil Procedure Code and the practice of so august a tribunal as the Supreme Court of the United States. Henry J. Abraham writes:
"Appeal. In the instance of a writ of appeal, the aggrieved party has an absolute, statutorily granted right to carry a case to the United States Supreme Court, which in theory must review it. However, the High Tribunal retains the very considerable loophole of being empowered to reject such an appeal on the grounds that the federal question, otherwise validly raised, is "substantial". This highly significant discretionary element in the area of the Court's so-called compulsory appellate jurisdiction caused it to dismiss 70 appeals in the 1955-56 term, for example. Of these 40 were rejected "for want of a substantial federal question", the balance on other jurisdictional grounds. In the 59- 60 term, 63 of a total of 113 appeals were dismissed on the insubostalltiality ground ! As a rule, fully 50 to 60 per cent of the writs of appeal are thus dismissed or the judgment below affirmed without printing the record or oral argument .... In effect, the appeel is hence used but sparingly-to date in approximately 9 per cent of all cases or controversies presented to the Court.
49.The decision we make is confined to the criminal jurisdiction covered by Article 134 and Article 145 (1) (b) and Section 384 Criminal Procedure Code. The compelling thought which has pressured our judgment in a matter of life and death in a first appeal to a final court is best expressed by Edmund Cahn:
"For what gives justice its special savor of nobility ? Only the divine wrath that arises in us,girds us, and drives us to action whenever an instance of injustice affronts our sight."
53.The relevant provision of the Criminal Procedure Code have already been quoted. Counsel for the appellant had obvious difficulty in overcoming the obstacle of s. 384. That section is sweeping. Any appellate court (which includes the Supreme Court under Art. 134) may hear and dispose of an appeal summarily, without the records and recording no reasons for dismissal if it is the High Court or the Supreme Court. Literally read, it sounds arbitrary, where death sentence, at the first appeal is involved. Article 21, in its expansive incarnation, may fatally knock down any summary power of fatally knocking down an appellant facing death penalty in first appeal by an unspeaking order. But the generality of the provision if read down, may well be valid and rightly so. If the appeal is at the second or third tier, there is no reason to grumble. If the punishment is not of the dreadful species, there can be no constitutional consternation. After all, to have a giant's strength is not wrong 'but it is tyrannous to use it like a giant' and judges do know this judicious caution. So we hold that the restrictions already indicated in applying Order XXI rule 15(1) (c) may legitimately be read into s. 384 of the Code. Words of wide import and expressions of expansionist potential may always be canalised and constitutionalised-a proposition too well established to be propped by precedents.
55.To conclude, we uphold the vires of Order XXI Rule 15(1)(c) of the Supreme Court Rules and also s. 384 of the Criminal Procedure Code but hold that in their application both the provisions shall be restricted by certain criteria as a permissible exercise in constitutionalisation.”
(emphasis added by the Court)
From a perusal of the judgment of the Apex Court in the case of Sita Ram (supra) it emerges that the Apex Court has upheld the vires of Section 384 of the Cr.P.C per which the appeal can be dismissed summarily without calling for the records.
Learned AGAs also placed reliance on the judgments of the Apex Court in the cases of Dhondiba Gundu Pomaje and Ors Vs. State of Maharashtra- 1975 SCC (Cri) 793, State of Madhya Pradesh Vs. Dewadas- AIR 1982 SC 800, Shivaji Narayan Bachhav Vs. State of Maharashtra- AIR 1983 SC 1014, Govindaraju @ Govinda Vs. State of Srirampuram- AIR 2012 SC 1292 & Manoj Rameshlal Chhabriya Vs. Mahesh Prakash Ahuja- 2025 INSC 282.
So far as the judgments of the Apex Court in the case of Dhondiba Gundu Pomaje (supra) & Shivaji Narayan Bachhav (supra) are concerned, a perusal of the said judgments indicate that the Apex Court was seized of matters where the High Court had dismissed the criminal first appeal against the conviction order summarily under the Cr.P.C (old) by one word “dismissed”.
As already indicated above, there cannot be any dispute to the aforesaid proposition of law inasmuch as reasons in an order are the soul of an order and consequently, even if the criminal appeal is summarily dismissed under Section 384 of the Cr.P.C., it goes without saying that reasons for the same are to be recorded.
So far as the judgment of the Apex Court in the case of Dewadas (supra) is concerned, the same was a case per which the learned Single Judge of the High Court had dismissed leave to appeal although the said leave to appeal was to be decided by a Division Bench. Thus, the said judgment would not have any applicability in the facts of the instant case.
So far as the judgment of the Apex Court in the case of Govindaraju (supra) is concerned, the Apex Court held that once the leave to appeal is granted under Section 378 of the Cr.P.C, there would be hardly any difference between the normal appeal and appeal against the acquittal and further held that the High Court had erred in interfering with the judgment of the acquittal as recorded by the learned trial Court which is not the case here.
So far as the judgment of the Apex Court in the case of Manoj Rameshlal Chhabriya (supra) is concerned, the Apex Court was seized of a matter whereby against the order of an acquittal, the High Court had declined to grant leave to appeal under sub Section (3) of Section 378 of the Cr.P.C.
Again, this Court is seized of a matter where the leave to appeal has been granted and after hearing learned counsel for the State/ appellant, an objection has been raised by the learned State Counsels that we should only proceed to hear the matter after summoning the learned trial Court record as provided under Section 385 of the Cr.P.C. We have proceeded to examine as to whether calling for the records is mandatory under Section 384 of the Cr.P.C where a discretion has been granted to the appellate Court viz-a-viz the mandate of Section 385 of the Cr.P.C per which the record is to be mandatorily summoned. Thus, the said judgment is also not applicable on the question in issue.
Keeping in view the aforesaid discussion, we hold that in case leave to appeal has been granted under sub Section (3) of Section 378 of the Cr.P.C, an appeal can still be summarily dismissed under Section 384 of Cr.P.C (now Section 425 of B.N.S.S) after recording reasons for the same and that it is not mandatory to summon the record.
Accordingly, the preliminary objection as raised by the learned AGAs is rejected.
[Order on Government Appeal]
The present Government appeal has been preferred by the State against the judgment and order dated 29.07.2025 passed by learned Special Judge, POCSO Act-I, Ayodhya, in Special Sessions Trial No. 15 of 2022, arising out of Case Crime No. 338 of 2021, under Sections 376, 506 of Indian Penal Code (hereinafter referred in short as ‘IPC’), Sections ¾ of Protection of Children from Sexual Offences Act (hereinafter referred in short as ‘POCSO Act’) and Section 67 of the Information Technology Act, Police Station Kotwali Nagar, District Ayodhya.
By means of impugned judgment and order dated 29.07.2025 passed in Special Sessions Trial No. 15 of 2022, the accused-respondent no. 1 Sharad Rastogi has been acquitted of the charge levelled against him under Sections 376, 506 of IPC, Sections ¾ of the POCSO Act and Section 67 of the IT Act.
Being aggrieved and dissatisfied with the impugned judgment and order of acquittal, the State has filed this Government appeal.
Prosecution story, in brief, is that the informant was living in district Ayodhya for last 15 years. To maintain her family, she alongwith her father and brother was engaged in the business of artificial jewelry in the name and style ‘Muskan Jwellers’. Shopkeeper’s nephew Sharad Rastogi used to come to the house of her Bua (aunt). Sharad Rastogi was having an affair with the informant's daughter for the last seven years. On 22.01.2019 both the families entered into a compromise and they decided not to interfere in either of their affairs. But on 31.05.2021 at about 02:30 p.m., one photograph got viral from the Facebook ID of S.K. Rastogi, wherein it is mentioned that he had solemnized the marriage with the informant's daughter and in this regard a photo ‘applying sindoor ceremony’ was also posted and by this act, the accused-Sharad Rastogi intentionally tried to defame her daughter and tarnish her chastity, which forced her daughter to commit suicide. While accused Sharad Rastogi is a married man, despite that he did not delete the obscene photographs of the informant's daughter from YouTube.
On the basis of written information given by the informant, the First Information Report (hereinafter referred in short as ‘FIR’) had been lodged against the accused Sharad Rastogi on 03.06.2021 at about 05:06 p.m., under Sections 354-D, 506, 509 of the IPC.
During the course of investigation, statements of the victim and witnesses were recorded, cite plan was prepared and after concluding the investigation, the Investigating Officer (hereinafter referred in short as ‘IO’) filed the chargesheet against the accused Sharad Rastogi.
After filing of the chargesheet, the trial court framed the charges against the accused under Section 376, 506 of the IPC, Section 3/4 of the POCSO Act and Section 67 of the IT Act and the same was read over and explained to the accused, for which he denied and claimed to be tried.
In order to prove its case, the prosecution has adduced the ocular evidence of the victim PW-1, informant PW-2, Head Constable Lallan Yadav PW-3, Ram Kumar Chauhan PW-4 and Investigating Officer Subodh Pandey PW-5.
The prosecution has also produced the documentary evidence i.e. statement of the victim recorded under Section 164 of Cr.P.C. as Exhibit Ka-1, Tahrir Exhibit 2, Copy of GD Exhibit Ka-3, Chik FIR Exhibit Ka-4, High school certificate and marksheet of the victim Exhibit Ka-5, SR register Exhibit Ka-6, Site Plan Exhibit Ka-7, 65B certificate Exhibit Ka-8, copy of GD no. 29 dated 31.12.2021 Exhibit Ka-9, Copy of GD no. 24 dated 14.12.2021 Exhibit Ka-10, copy of Facebook business record Exhibit Ka-11 and chargesheet Exhibit Ka-12.
Upon closure of the prosecution evidence, statement of the accused under section 313 of the Cr.P.C. had been recorded, who denied all the incriminating and attending circumstances which emerged out in the testimony of the prosecution witnesses and claimed to be tried. At this juncture, neither ocular nor documentary evidence had been adduced on behalf of the accused person.
After hearing the learned counsel for the parties and perusing the material on record, the learned trial court found that the charges levelled against the accused-respondent Sharad Rastogi under Sections 376, 506 of IPC, Sections ¾ of the POCSO Act and Section 67 of the IT Act have not been proved and the trial court acquitted the accused-respondent no. 1 Sharad Rastogi for the said offences.
The judgment of acquittal has been passed on the ground that the prosecution version is not innocent since the alleged incident is said to have happened more than seven years ago, for which the FIR had been lodged after inordinate delay and no plausible explanation has been given. The learned trial court observed that at the time of the alleged incident, the victim was not minor and at the time of lodging of the FIR, she was aged about 23 years years. The learned trial court observed that the victim has deviated from her earlier version on every occasion, therefore, she is not a witness of sterling quality and her testimony has not been found cogent, clinching and convincing. The learned trial court also observed that victim herself has admitted that she had refused to be medically examined and there is no medical evidence in support of the prosecution version.
The learned trial court also indicated the statement of victim as well as other witnesses which are contradictory to each other. No incriminating article like obscene photographs and the ‘photo applying sindoor ceremony’ of the victim could be recovered. Learned trial court also considered that there was pre-existing tenancy dispute between the parties and in that regard, a quarrel between the shop owner of the shop Mamta Rastogi and the informant had taken place and FIR had also been lodged by Mamta Rastogi, while informant had not wished to vacate the shop in tenancy. Learned trial court also found that prosecution could not succeed to prove its case beyond reasonable doubt by adducing reliable evidence. Therefore, the accused was given benefit of doubt and judgment of acquittal was passed.
Challenging the judgment of acquittal passed by learned trial court, the learned AGA submits that the trial court has erred in appreciating the evidence on record. He further submits that the statement of the victim, informant and other witnesses are intact who had corroborated the prosecution version in toto. He further submits that the minor discrepancies that occurred in the testimony of the witnesses have no significance. He further submits that from the statement of the victim given to I.O. under Section 161 of the Cr.P.C. and the statement given before the Magistrate under Section 164 of the Cr.P.C., there is no ambiguity or deviation from the core which may erode the prosecution case, but the learned trial court passed the impugned judgment and order in an arbitrary and cursory manner which is not in consonance with the law and the findings and observations recorded by the learned trial court are not one of the possible view. Therefore, submission is that the judgment and order of acquittal passed by the trial court requires serious consideration and reversal and the accused person is liable to be convicted.
We have considered the submissions and have perused the record.
Before proceeding further, it would be appropriate to take note of law on the appeal against acquittal.
In the case of Bannareddy and others vs. State of Karnataka and others, (2018) 5 SCC 790, in paragraph 10, the Hon'ble Apex Court has considered the power and jurisdiction of the High Court while interfering in an appeal against acquittal and in paragraph 26 it has been held that "the High Court should not have reappreciated the evidence in its entirety, especially when there existed no grave infirmity in the findings of the trial Court. There exists no justification behind setting aside the order of acquittal passed by the trial Court, especially when the prosecution case suffers from several contradictions and infirmities".
In Jayamma vs. State of Karnataka, 2021 (6) SCC 213, the Hon'ble Supreme Court has been pleased to explain the limitations of exercise of power of scrutiny by the High Court in an appeal against against an order of acquittal passed by a Trial Court in the following words:
"The power of scrutiny exercisable by the High Court under Section 378, CrPC should not be routinely invoked where the view formed by the trial court was a ''possible view'. The judgment of the trial court cannot be set aside merely because the High Court finds its own view more probable, save where the judgment of the trial court suffers from perversity or the conclusions drawn by it were impossible if there was a correct reading and analysis of the evidence on record. To say it differently, unless the High Court finds that there is complete misreading of the material evidence which has led to miscarriage of justice, the view taken by the trial court which can also possibly be a correct view, need not be interfered with. This self-restraint doctrine, of course, does not denude the High Court of its powers to re-appreciate the evidence, including in an appeal against acquittal and arrive at a different firm finding of fact."
In a judgment of this Court in Virendra Singh vs. State of UP and others, 2022 (3) ADJ 354 DB, the law on the issue involved has been considered. For ready reference, paragraphs 10, 11 and 12 are quoted as under:
"10.In the case of Babu vs. State of Kerala (2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179, the Hon'ble Apex Court has observed that while dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial Court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial Court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Paragraphs 12 to 19 of the aforesaid judgment are quoted as under:-
"12.This court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the Trial Court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be more, the probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial Court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial Court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P. AIR 1974 SC 2165; Shambhoo Missir & Anr. v. State of Bihar AIR 1991 SC 315; Shailendra Pratap & Anr. v. State of U.P. AIR 2003 SC 1104; Narendra Singh v. State of M.P. (2004) 10 SCC 699; Budh Singh & Ors. v. State of U.P. AIR 2006 SC 2500; State of U.P. v. Ramveer Singh AIR 2007 SC 3075; S. Rama Krishna v. S. Rami Reddy (D) by his LRs. & Ors. AIR 2008 SC 2066; Arulvelu & Anr. Vs. State (2009) 10 SCC 206; Perla Somasekhara Reddy & Ors. v. State of A.P. (2009) 16 SCC 98; and Ram Singh alias Chhaju v. State of Himachal Pradesh (2010) 2 SCC 445).
13.In Sheo Swarup and Ors. King Emperor AIR 1934 PC 227, the Privy Council observed as under:
"...the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.…"
14.The aforesaid principle of law has consistently been followed by this Court. (See: Tulsiram Kanu v. The State AIR 1954 SC 1; Balbir Singh v. State of Punjab AIR 1957 SC 216; M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200; Khedu Mohton & Ors. v. State of Bihar AIR 1970 SC 66; Sambasivan and Ors. State of Kerala (1998) 5 SCC 412; Bhagwan Singh and Ors. v. State of M.P. (2002) 4 SCC 85; and State of Goa v. Sanjay Thakran and Anr. (2007) 3 SCC 755).
15.In Chandrappa and Ors. v. State of Karnataka (2007) 4 SCC 415, this Court reiterated the legal position as under:
"(1)An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.
(2)The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3)Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4)An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5)If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
16.In Ghurey Lal v. State of Uttar Pradesh (2008) 10 SCC 450, this Court re-iterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court's acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses.
17.In State of Rajasthan v. Naresh @ Ram Naresh (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that an "order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused."
18.In State of Uttar Pradesh v. Banne alias Baijnath & Ors. (2009) 4 SCC 271, this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances includes:
i)The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position;
ii) The High Court's conclusions are contrary to evidence and documents on record;
iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;
iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case;
v)This Court must always give proper weight and consideration to the findings of the High Court;
vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal.
A similar view has been reiterated by this Court in Dhanapal v. State by Public Prosecutor, Madras (2009) 10 SCC 401.
19.Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."
11.Hon'ble Apex Court in the case of Ramesh Babulal Doshi vs. State of Gujarat (1996) 9 SCC 225 : 1996 SCC (Cri) 972 has observed that while deciding appeal against acquittal, the High Court has to first record its conclusion on the question whether the approach of the trial court dealing with the evidence was patently illegal or conclusion arrived by it is wholly untenable which alone will justify interference in an order of acquittal.
12.The aforesaid judgments were taken note of with approval by Supreme Court in the case of Anwar Ali and another vs. State of Himachal Pradesh (2020) 10 SCC 166, Nagabhushan vs. State of Karnataka (2021) 5 SCC 222, and Babu (supra) in Achhar Singh vs. State of Himachal Pradesh (2021) 5 SCC 543."
Similar view has been reiterated by Hon'ble Apex Court in Rajesh Prasad vs. State of Bihar and another, (2022) 3 SCC 471.
From perusal of evidence recorded by the trial Court, we find that the trial Court has specifically noticed that statement of prosecutrix must be given pre-dominant consideration. The trial Court after noticing this fact has examined the veracity and truthfulness of the allegations of the prosecutrix. Though, it is settled proposition of law that statement of prosecutrix must be given pre-dominant consideration yet nobody in the civilised society can be implicated or held guilty just because there is a statement of prosecutrix. The statement of prosecutrix cannot be treated as gospel truth and the Court has to see that she is a witness of sterling quality. If the statement of prosecutrix is held to be gospel truth and Courts are bound to hold someone guilty just because there is an allegation by prosecutrix, it would be travesty of justice and there would be no need to conduct trial. The statement recorded by Magistrate under Section 164 or police authorities under Section 161 of Cr.P.C. would be sufficient to put a person behind the bars and hold him guilty.
We do not find substance in the arguments of the appellant. The findings recorded by trial Court are well reasoned and there is no substance in the allegations of prosecutrix. The Trial Court has passed a reasoned judgment, nevertheless, we deem it appropriate to consider the arguments and allegations of appellant.
On the perusal of record, we find that the learned trial court has thoroughly scrutinized the testimony of the witnesses and specifically discussed the statement of victim that she was in love with the accused for last seven years from lodging of the FIR. It is also evident from the record that the Investigating Officer, PW-5, has stated that during the course of investigation, this fact came to his knowledge that there was an affair between the victim and the accused and they were willing to marry each other, but later on, the victim denied, then the dispute had arisen between them. He specifically admitted that during the course of investigation, neither obscene photograph was recovered nor it was made viral, as revealed from the report of Cyber Cell with remark that "no responsive record located”. It is also evident from the record that the FIR had been lodged after an inordinate delay and no plausible explanation has been offered. It is also evident that at the time of the alleged incident, the victim was not minor, as held by the learned trial court in the impugned judgment and she had given contradictory statement, therefore, she is not a witness of sterling quality on whose statement reliance can be placed. On close scrutiny, we also find that there was pre-existing tenancy dispute between the informant and the accused’s aunt Mamta and shop owner who had earlier lodged the FIR against the informant In such view of the matter, we find that the learned trial court has taken a possible view of the matter, on appreciation of the entire evidence on record. Accordingly, the opinion expressed by the trial court is not only a possible view but also is fair, reasonable and cannot be termed as perverse in any manner. Thus it does not warrant interference. As noted above, there is always presumption of innocence and in case of acquittal, there is a double presumption. The burden lies upon the prosecution to prove the guilt of the accused beyond reasonable doubt. The learned trial court has passed a detailed, reasoned and speaking judgment and we find no infirmity in the said judgment. There is no manifest error, illegally or non-application of mind or non-appreciation of evidence which could compel us to form an opinion different from the opinion formed by the learned trial court.
In such view of the matter, we, therefore, find that the trial court has taken a possible view of the matter on appreciation of entire evidence on record, which cannot be substituted by this Court taking a different view as per law, discussed above.
Accordingly, the present government appeal is devoid of merits and liable to be dismissed summarily.
Consequently, this government appeal is dismissed summarily.