State of Rajasthan v. Ramdeen & Others
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 Gopa-
ram was acquitted of all the charges. The other respondents also
were acquitted of the charges under sections 302 and 3021149, IPC.
Respondent Sangram was convicted under section 304 Part II, IPC. H
Respondent Dayalram was convicted under section 324 IPC. Res
pondents Budharam and Ramdeen were convicted under section 323
ll>C.
140 SUPREME COURT REPORTS { 1977] 3 S.C.R.
. A 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 Criminal Procedure, 1973.
The Sessions Judge delivered the judgment on March 30, 197 4
and the Code of Criminal Procedure, 1973, came into force from April
1, 197 4- 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 sub-
C section (1) or sub-section (2) of section 417 of the Code of Crimi
nal 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 3 78 of the Code of Criminal Procedure, 1973, is equivalent
to section 41 7 of the Old Code with an important difference in case
of appeal against acquittal by the State. Under the Old Code there
D was no provis\on 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 com
plaint. With some changes about limitation, with which we are not
concerned, provision for special leave to appeal in any case instituted
E 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 filed 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 founded, 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 clearl)
beyond the period of ninety days prescribed under article 114(c) 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 aoolicable in this case. The
respondents, however, submit that the petition of appeal should have
..
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RAJASTHAN v. RAMDEEN (Goswami, J.) . 141
been presented within ninety days of the judgment of the Sessions A
Judge which was on March 30, 1974. Since that was not done and
there was not even an application for condonation 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 pres- B
cribed 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 C
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 appli
cation for leave to appeal by the State. It is, therefore, not possible
to decide the matter relying upon the so-called practice soon after the
provision has been introduced. D
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 acquit
tal. 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 application 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
!hat 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
ninety days from the date of the order appealed from; whereas in an
appeal from an order of acquittal, in any case instituted upon co:n
plaint, 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,
therefore, not necessary to wait until the grant of leave by the High
Court to present a memorandum of appeal against acquittal 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
dismissed.
We are, therefore, clearly of opinion that the application for
leave to appeal, which was made by the State in this case, is equiva
lent 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 decisive of the true character of the application which to all
intents and purposes was a memorandum of appeal. 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 peti
tion 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.
M.R. Appeal allowed.
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