# State of U.P v. Vakil

- **Citation:** (2022) 11 ILRA 250
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-26
- **Case number:** THE HON'BLE SHIV SHANKER PRASAD. J. Government Appeal No. 591 of 2022
- **Bench:** Ashwani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-vakil-47810
- **Pages:** 6

## Headnote

Criminal Law - The Code of Criminal
Procedure, 1973 - Section 378 (3) - Appeal
in case of acquittal - No appeal under S. 378 (1)
or S. 378 (2) shall be entertained except with
the leave of the High Court - S. 384, Summary
dismissal of appeal - Before dismissing an
appeal under S. 384 CrPC, the Court may call
for the record of the case - Held - It is not
mandatory for the High Court to summon the
lower court record, first, in every case, before
deciding the application for the grant of leave,
filed by the State, to institute an appeal under
Section 378(3) of the Cr.P.C. - Right of the
appellate court to summon the lower court
record in an appropriate matter always subsists
- It is within the purview of the High Court to
determine,
based
on
the
facts
and
circumstances of each case, whether the
application for grant of leave necessitates the
perusal of the lower court records or not -It is
not necessary for this Court to routinely call for
the lower court records for consideration of
applications under Section 378(3) of the Cr.P.C.
in every case (Para 16) (E-5)

List of Cases cited:

## Text

250 INDIAN LAW REPORTS ALLAHABAD SERIES
establish that the land appurtenant was plot
no.2143/1 while here the land in question
was plot no.2143 (later 2826/11).

13. Learned counsel for the respondents,
however, stated that the substantial questions
of law are not required to be dealt with as the
appeal is concluded by findings of fact.

14. Under such circumstances, no
substantial question of law arises for being
answered in the instant Second Appeal.
However, if the defendant-appellant is of the
view that his plot no.2143/1 ought to be
demarcated, then he shall always be at a liberty
to get the plot no.2143/1 demarcated and
identified.

15. The Court finds that there is no merit in
this second appeal. It is, accordingly, dismissed.
----------
(2022) 11 ILRA 250
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.09.2022

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SHIV SHANKER PRASAD. J.

Government Appeal No. 591 of 2022

State of U.P. ...Appellant
Versus
Vakil ...Accused-Respondent

Counsel for the Appellant:
Sri Shiv Kumar Pal, Sri S.A. Murtza, A.G.A.

Counsel for the Respondent:

Criminal Law - The Code of Criminal
Procedure, 1973 - Section 378 (3) - Appeal
in case of acquittal - No appeal under S. 378 (1)
or S. 378 (2) shall be entertained except with
the leave of the High Court - S. 384, Summary
dismissal of appeal - Before dismissing an
appeal under S. 384 CrPC, the Court may call
for the record of the case - Held - It is not
mandatory for the High Court to summon the
lower court record, first, in every case, before
deciding the application for the grant of leave,
filed by the State, to institute an appeal under
Section 378(3) of the Cr.P.C. - Right of the
appellate court to summon the lower court
record in an appropriate matter always subsists
- It is within the purview of the High Court to
determine,
based
on
the
facts
and
circumstances of each case, whether the
application for grant of leave necessitates the
perusal of the lower court records or not -It is
not necessary for this Court to routinely call for
the lower court records for consideration of
applications under Section 378(3) of the Cr.P.C.
in every case (Para 16) (E-5)

List of Cases cited:

1. St. of Mah. Vs Sujay Mangesh Poyarekar
(2008) 9 SCC 475

2. St.of U. P. Vs Anil Kumar @ Badka & ors.
(2018) 9 SCC 492

(Delivered by Hon'ble Ashwani Kumar
Mishra, J. & Hon'ble Shiv Shanker Prasad, J.)

1. A short but interesting question arises
in this appeal as to whether this Court, while
exercising its power to grant leave to the State
to institute appeal under sub-section 3 of
Section 378 Cr.P.C. is required to summon the
lower court record, first, before proceeding to
consider the prayer made for grant of leave?

2. Section 378 Cr.P.C. provides for filing
of appeal in case of acquittal by the State. Subsection 3 of Section 378 Cr.P.C. contemplates
for grant of leave for entertainment of such
appeal. Sub-section 3 of Section 378 Cr.P.C.
reads as under: -

"3. No appeal under Sub-Section
(1) or Sub-Section (2) shall be entertained
except with the leave of the High Court."
11 All. State of U.P. Vs. Vakil
251

3. It is urged by Sri S. A. Murtza,
learned A.G.A. for the State that the State
cannot be treated differently in the matter
of filing of appeal vis-a-vis the victim and
since the requirement of seeking leave
under Section 372 Cr.P.C. stands dispensed
with by virtue of proviso added to Section
372 Cr.P.C., conferring right upon a victim
to prefer appeal against the order of
acquittal or convicting the accused for a
lesser offence or imposing inadequate
compensation, as such the State being
repository of the interest of society at large
must be treated at par with the victim. It is
also submitted that though the Code of
Criminal Procedure provides for summary
dismissal of appeal yet sub-section 2 of
Section 384 Cr.P.C. nevertheless provides
that
before
dismissing
an
appeal,
summarily, the Court may call for record of
the case. Sub-section 2 of Section 384
Cr.P.C. relied upon by learned A.G.A. is
extracted hereinafter:-

"(2) Before dismissing an appeal
under this section, the Court may call for
the record of the case."

4. It is urged that appeal is a creature
of statute and Chapter XXIX of the Code
provides for the procedure to be followed
for its adjudication, therefore, it would be
necessary for this Court to summon the
lower court record first before examining
the question of grant of leave. It is also
urged that the refusal to grant leave results
in affirmance of the order impugned in the
appeal as such the decision affects the
victim as his right of appeal would be
adversely affected. Attention of the Court
has been invited to the judgment of the
Supreme Court in State of Maharastra Vs.
Sujay Mangesh Poyarekar (2008) 9 SCC
475, wherein the Supreme Court observed
as under in paragraph Nos. 19 to 21:-

"19. So far as an application for
leave to appeal by the State is concerned,
the
High
Court
rejected
it
without
considering
the
evidence
of
the
prosecution. In the impugned order, the
High Court noted that it had heard the
learned Assistant Public Prosecutor. It
went on to state that none of the injuries
sustained by the victim was `fatal'.
According to the High Court, the cause
behind
the
assault
was
that
the
complainant-advocate was teasing the wife
of the accused, who was also working in
the Court.

20. It then proceeded to observe;

"The trial Court has appreciated
the evidence properly and has also taken
into
consideration
the
number
of
complaints filed against the said advocate
complainant
including
the
apology
tendered by the complainant to the
President, Bar Association, Dahanu and
the action taken by the Bar Council. The
trial Court found inherent improbabilities
in the case of the complainant and
therefore acquitted the accused. The
judgment of the trial Court cannot be said
to be perverse. No interference is called
for. Application rejected".

21. Now, Section 378 of the Code
provides for filing of appeal by the State in
case of acquittal. Sub-section (3) declares
that no appeal "shall be entertained except
with the leave of the High Court". It is,
therefore, necessary for the State where it
is aggrieved by an order of acquittal
recorded by a Court of Session to file an
application for leave to appeal as required
by sub-section (3) of Section 378 of the
Code. 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.
252 INDIAN LAW REPORTS ALLAHABAD SERIES

5. The judgment in Sujay Mangesh
Poyarekar (Supra) has been followed by
the Supreme Court in State of Uttar
Pradesh Vs. Anil Kumar @ Badka and
Others (2018) 9 SCC 492, wherein the
Supreme Court observed as under in
paragraph No. 5 and 11:-

"5. The State of U.P., fet
aggrieved by the respondent' acquittal,
filed an application for leave to appeal
before the High Court under Section 378(3)
of the Code. By the impugned order the
High Court declined to grant leave and
accordingly rejected the application made
by the State. It is against this order, the
State has filed this appeal by way of special
leave petition in this Court.

11. We are constrained to observe
that the High Court grossly erred in passing
the impugned order without assigning any
reason. In our considered opinion, it was a
clear case of total non-application of mind to
the case by the learned Judges because the
order impugned neither sets out the facts nor
the submissions of the parties nor the findings
and nor the reasons as to why the leave to file
appeal is declined to the appellant. We,
therefore, disapprove the casual approach of
the High Court in deciding the application
which, in our view, is against the law laid
down by this Court in State of Maharashtra
Vs. Sujay Mangesh Poyarekar."

6. Learned State Counsel has also
referred to the judgment of the Supreme
Court in Mallikarjun Kodagali Vs. State of
Karnataka and Others (2019) 2 SCC 752,
wherein the Supreme Court examined the
scope of Section 372 and observed as under
in paragraph Nos. 75 and 76:-

" 75. Under the circumstances, on
the basis of the plain language of the law
and also as interpreted by several High
Courts and in addition the resolution of the
General Assembly of the United Nations, it
is quite clear to us that a victim as defined
in Section 2(wa)of the Cr.P.C. would be
entitled to file an appeal before the Court
to which an appeal ordinarily lies against
the order of conviction. It must follow from
this that the appeal filed by Kodagali
before the High Court was maintainable
and ought to have been considered on its
own merits.

76. As far as the question of the
grant of special leave is concerned, once
again, we need not be overwhelmed by
submissions made at the Bar. The language
of the proviso to Section 372 of the Cr.P.C.
is quite clear, particularly when it is
contrasted with the language of Section
378(4) of the Cr.P.C. The text of this
provision is quite clear and it is confined to
an order of acquittal passed in a case
instituted upon a complaint. The word
''complaint' has been defined in Section
2(d) of the Cr.P.C. and refers to any
allegation made orally or in writing to a
Magistrate. This has nothing to do with the
lodging or the registration of an FIR, and
therefore it is not at all necessary to
consider the effect of a victim being the
complainant as far as the proviso to
Section 372 of the Cr.P.C. is concerned."

7. Section 384 of the Code provides
for summary disposal of appeal and is
reproduced hereinafter: -

"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-
11 All. State of U.P. Vs. Vakil
253

(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 con-
siders 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."

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.
254 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

12. Before proceeding to examine the
contention raised we would like to refer to
the judgment of the Supreme Court cited at
the Bar. In Sujay Mangesh Poyarekar
(Supra) while considering the scope of
sub-section 3 of Section 378 the Court
observed that the High Court while
exercising the power to grant or refuse
leave must apply its mind and consider
where a prima facie case has been made out
or arguable points have been raised and not
whether the order of acquittal would or
would not be set aside. In paragraph 21 the
Court clearly observed that every petition
seeking leave to prefer an appeal is not
required to be allowed by the appellate
court nor that every appeal filed has to be
admitted. The two observations are a clear
pointer to the legislative intendment. Every
appeal is not required to be admitted
inasmuch as leave must not necessarily be
granted in every matter and the exercise of
power in that regard is dependent upon a
prima facie assessment of the material
placed before the Court so as to ascertain
whether the appeal raises arguable points or
not.

13. The object of incorporating
provision for grant of leave has a purpose
to subserve. It is not that in every matter
the State is expected or required to file an
appeal and even if such an appeal is
routinely filed, the Court is not required to
entertain every such appeal as a matter of
course. The purpose of grant of leave by
the High Court is that a prima facie
assessment would be required to determine
whether the appeal raises arguable points or
not. The reason for grant or refusal to leave
must be reflected from the order passed by
the High Court. The Supreme Court has
clearly disapproved the practice of rejection
of prayer for grant of leave to file appeal by
passing orders which do not reflect proper
application of mind by the appellate court
within the scope of powers to be exercised.

14. The observations of the Supreme
Court, relied upon by the State Counsel,
would not lead to an inference that just
because the victim has a right of appeal as
such the State must also be recognized as
having right to prefer appeal against any
order of acquittal or conviction for a lesser
offence
or
imposing
inadequate
compensation.

15. The purpose of grant of leave is
merely to embark upon a prima facie
assessment so as to decide which of the
matters would require examination by the
appellate court. The refusal to grant leave
would not mean that the order of acquittal
merges in the order of the High Court. The
right of the victim to file an appeal by
virtue of proviso to section 372 Cr.P.C.
would, therefore, not be adversely affected
11 All. Suman Singh Vs. District Magistrate & Ors.
255
by the refusal to grant leave under Section
378(3) Cr.P.C. by the High Court. The right
of the victim to file an appeal in terms of
proviso to Section 372 Cr.P.C. would thus
stand unhindered. The above interpretation
would subserve the object of provision for
grant of leave to the State to file an appeal
against the order of acquittal while
maintaining the right of a victim to prefer
an appeal under Section 372 Cr.P.C.

16. The up shot of the above deliberation
is that it is not mandatory for the High Court to
summon the lower court record in every case
before deciding the application for grant of
leave under Section 378(3) Cr.P.C. We hasten
to add that the right of the appellate court to
summon the lower court record in an
appropriate matter always subsists. It is for the
High Court to decide on the basis of facts and
circumstances of each case whether the
application for grant of leave requires the
perusal of the lower court records or not? We,
therefore, hold that it is not necessary for this
Court to call for the lower court records for
consideration of application under Section
378(3) Cr.P.C., in every case or as a matter of
routine.

17. As prayed by Sri S.A. Murtaza,
learned A.G.A., put up this case, once again, on
29.09.2022 for consideration of application by
the State filed under Section 378(3) Cr.P.C.
----------
(2022) 11 ILRA 255
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.10.2022

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE VIKAS BUDHWAR, J.

Writ-C No. 12310 of 2022
With
Writ-C No. 24798 of 2022
Suman Singh ...Petitioner
Versus
District Magistrate & Ors. ...Respondents

Counsel for the Petitioner:
Sri Abhishek Kumar, Sri Ashish Kumar
Gupta

Counsel for the Respondents:
C.S.C., Sri Ajay Kumar Singh, Sri Ashish
Kumar Singh, Sri Sudharshan Singh, Sri
Tejas Singh

A. Civil Law - Constitution of India - Article
226 - Writ - Maintainability - Question of
facts - Judicial intervention in the matter to
be decided by Civil Court under the common
law, extent of - Held, under Article 226 of
the Constitution of India disputed questions
cannot be gone into, particularly in view of
the fact that though one fraction is coming
up with a stand that its land has been
encroached upon by other fraction, but the
other fraction is disputing the same - Once
the parties are claiming their right before
the Civil Court while taking recourse to the
remedies as available under law, then
proceedings under Article 226 of the
Constitution of India are not maintainable.
(Para 42 and 44)
B. Civil law - Constitution of India -
Article 226 - Civil Procedure Code, 1908 -
O. I R. 10 and O. VI R. 17 - Writ
jurisdiction - Matter though involves
question of facts, but allegation made is
against the St. and its functionaries -
Scope of judicial interference by High
Court - Held, writ jurisdiction is not the
appropriate remedy - In view of the
provisions contained under O. I R. 10 of
the C.P.C., it is always open to prties to
file appropriate application for not only
impleading the St. and instrumentalities
but also preferring appropriate application
under O. VI R. 17 of C.P.C. for amending
plaint while seeking relief of recovery of
possession
of
their
claimed
land/
premises. (Para 47 and 48)
Writ petition dismissed. (E-1)