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CASE NO.:

Appeal (crl.) 1166 of 1997

PETITIONER:

State of Orissa

RESPONDENT:

Dhaniram Luhar

DATE OF JUDGMENT: 04/02/2004

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT:

J U D G M E N T

ARIJIT PASAYAT,J.

The State of Orissa questions legality and propriety of

the order by which a learned Single Judge of Orissa High

Court rejected the prayer seeking leave to appeal under

Section 378 (3) of the Code of Criminal Procedure, 1973 (in

short 'the Code'). Following is the order passed on

1.2.1996:

"Leave to appeal is refused."

The State sought leave to appeal against the order

passed by learned S.D.J.M., Nuapada, holding that the

respondent Dhaniram Luhar (hereinafter referred to as 'the

accused') was not guilty of offences punishable under

Section 27(1)(a) of the Orissa Forest Act, 1972 (in short

'the Act').

Stand of the prosecution was that the respondent-

accused had encroached about 5 acres of land for the purpose

of cultivation in the Patidanger reserved forest. The

official witnesses had deposed that the respondent-accused

had encroached the land inside the aforesaid reserved forest

within Sunabeda Wild Life Sanctuary and also produced sketch

map of the plot under occupation of the accused. It is an

accepted position that the accused in his statement under

Section 313 of the Code had admitted encroachment of

Government land. Learned S.D.J.M. held that mere acceptance

of encroachment was not sufficient for the purpose of

finding him guilty. He held that the authentic copy of the

notification purported to have been issued under Section 21

of the Act was required to be filed which had not been done.

He further observed that since the notification was not

filed, and the procedures prescribed under Sections 21 and

22 were not complied, the respondent-accused was entitled to

acquittal. As noted above, the State prayed for grant of

leave against acquittal which was rejected by the impugned

order. According to it, the Trial Court had erroneously

analysed the evidence and did not apply correct principles

of law.

Mr. J.K. Das, learned counsel appearing for the

appellant-State submitted that the High Court was required

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to indicate reasons for refusal to grant leave. By a non-

reasoned order the same should not have been rejected;

particularly, when questions of public importance and

substantial questions of law were involved. The accused-

respondent has not appeared in spite of service.

According to learned counsel for the appellant-State it

was imperative on the High Court to indicate reasons as to

why the prayer for grant of leave was found untenable. In

the absence of any such reasons the order of the High Court

is indefensible. Section 378 of the Code deals with the

power of the High Court to grant leave in case of acquittal.

Sub-sections (1) and (3) of Section 378 read as follows:

"378(1) Save as otherwise provided in

sub-section (2) and subject to the

provisions of sub-section (3) and (5), 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 acquittal passed by any

Court other than a High Court or an order of

acquittal passed by the Court of Session in

revision.

(3) No appeal under sub-section (1)

or sub-section (2) shall be entertained

except with the leave of the High Court".

The trial Court was required to carefully appraise the

entire evidence and then come to a conclusion. If the trial

Court was at lapse in this regard the High Court was obliged

to undertake such an exercise by entertaining the appeal.

The trial Court on the facts of this case did not perform

its duties, as was enjoined on it by law. The High Court

ought to have in such circumstances granted leave and

thereafter as a first court of appeal, re-appreciated the

entire evidence on the record independently and returned its

findings objectively as regards guilt or otherwise of the

accused. It has failed to do so. The questions involved were

not trivial. The effect of the admission of the accused in

the background of testimony of official witnesses and the

documents exhibited needed adjudication in appeal. The High

Court has not given any reasons for refusing to grant leave

to file appeal against acquittal, and seems to have been

completely oblivious to the fact that by such refusal, a

close scrutiny of the order of acquittal, by the appellate

forum, has been lost once and for all. The manner in which

appeal against acquittal has been dealt with by the High

Court leaves much to be desired. Reasons introduce clarity

in an order. On plainest consideration of justice, the High

Court ought to have set forth its reasons, howsoever brief

in its order, indicative of an application of its mind; all

the more when its order is amenable to further avenue of

challenge. The absence of reasons has rendered the High

Court order not sustainable. Similar view was expressed in

State of U.P. v. Battan and Ors (2001 (10) SCC 607). About

two decades back in State of Maharashtra v. Vithal Rao

Pritirao Chawan (AIR 1982 SC 1215) the desirability of a

speaking order while dealing with an application for grant

of leave was highlighted. The requirement of indicating

reasons in such cases has been judicially recognized as

imperative. The view was re-iterated in Jawahar Lal Singh v.

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Naresh Singh and Ors. (1987 (2) SCC 222). Judicial

discipline to abide by declaration of law by this Court,

cannot be forsaken, under any pretext by any authority or

Court, be it even the highest Court in a State, oblivious to

Article 141 of the Constitution of India, 1950 (in short the

'Constitution').

Reason is the heartbeat of every conclusion, and

without the same it becomes lifeless. (See Raj Kishore Jha

v. State of Bihar and Ors. (2003 (7) Supreme 152).

Even in respect of administrative orders Lord Denning

M.R. in Breen v. Amalgamated Engineering Union (1971 (1) All

E.R. 1148) observed "The giving of reasons is one of the

fundamentals of good administration". In Alexander

Machinery (Dudley) Ltd. v. Crabtree (1974 ICR 120)(NIRC) it

was observed: "Failure to give reasons amounts to denial of

justice". Reasons are live links between the mind of the

decision-taker to the controversy in question and the

decision or conclusion arrived at". Reasons substitute

subjectivity by objectivity. The emphasis on recording

reasons is that if the decision reveals the "inscrutable

face of the sphinx", it can, by its silence, render it

virtually impossible for the Courts to perform their

appellate function or exercise the power of judicial review

in adjudging the validity of the decision. Right to reason

is an indispensable part of a sound judicial system; reasons

at least sufficient to indicate an application of mind to

the matter before Court. Another rationale is that the

affected party can know why the decision has gone against

him. One of the salutary requirements of natural justice is

spelling out reasons for the order made; in other words, a

speaking out. The "inscrutable face of a sphinx" is

ordinarily incongruous with a judicial or quasi-judicial

performance.

The above position was highlighted by us in State of

Punjab v. Bhag Singh (2004 (1) SCC 547).

In view of the aforesaid legal position, the impugned

judgment of the High Court is unsustainable and is set

aside. We grant leave to the State to file the appeal. The

High Court shall entertain the appeal and after formal

notice to the respondents hear the appeal and dispose of it

in accordance with law, uninfluenced by any observation made

in the present appeal. The appeal is allowed to the extent

indicated.