Raveendran K. v. State of Kerala and Mohandas K. and Jayanti

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 23RD JULY 2008 / 1ST SRAVANA 1930 Crl.L.P..No. 303 of 2008() -------------------------CC.1382/2006 of J.M.F.C.,CHAVAKKAD .................... : APPELLANT/COMPLAINANT -------------------------------------- RAVEENDRAN.K., S/O.E.P.MADHAVA PANICKER, KOZHAPPULLY VEEDU, P.O.KAVEED, KOTTAPPADY. BY ADV. SRI.RAJIT SRI.RANJIT BABU RESPONDENTS: STATE AND ACCUSED ------------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. MOHANDAS.K., S/O.E.P.MADHAVA PANICKER, GOVINDALAYAM, CHAVAKKAD P.O., (OPP. OLD TELEPHONE EXCHANGE), CHAVAKKAD, THRISSUR. 3. JAYANTHI, WIFE OF MOHANDAS, DO. BY PUBLIC PROSECUTOR SRI.AMJAD ALI ADV. SRI.P.RAMACHANDRAN FOR R2 & R3 THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 23/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT, J -----------------------------------Crl.L.P. No.303 of 2008 -------------------------------------** Dated this the 23[rd] day of July, 2008 ## **ORDER** Does the procedure adopted--in the filing and disposal of Leave applications and in the admission of appeals after securing leave, deserve rationalisation ? Is there unnecessary wastage of judicial time and needless repetition of non productive work in such procedure followed ? These questions arise for consideration incidentally in this case. 2. This petition is filed by the petitioner for leave under Section 378(4) Cr.P.C. The petitioner had filed a private complaint against the respondents/accused 1 and 2. In the said private complaint, the petitioner had alleged that the accused had committed offences punishable under Sectios 341 and 323 r/w 34 I.P.C. Accused 1 and 2 are the elder brother and sister in law respectively of the petitioner/complainant. Before the court below, the complainant examined himself as PW1, his wife as PW2 and an alleged independent witness as PW3. Exts.D1 to D4 were marked. 3. The crux of the allegations is that on account of prior animosity, the accused persons attacked PW1 on 25.10.04. He Crl.L.P. No.303 of 2008 2 was beaten and when he fell down, he was allegedly kicked. PW1 was allegedly strangulated. It is on these factual allegations that the complaint raising allegations of offences under Sections 341 and 323 r/w 34 I.P.C was filed. Cognizance was taken. Accused appeared before the learned Magistrate. 4. The accused took up a defence of denial. They contended that the allegations are raised vexatiously on account of animosity. There were disputes between the brothers and it was on account of such animosity that such allegations were raised, it was contended. No oral evidence was adduced by the accused. 5. The learned Magistrate on an anxious consideration of all the relevant inputs came to the conclusion that there was no satisfactory evidence tendered on the side of the complainant to justify or warrant a conclusion/inference of guilt. 6. The petitioner has now come to this Court for leave to file an appeal. I have gone through the materials available in the case. This Court must be alertly conscious of the nature, quality and contours of the jurisdiction of this Court sitting as a Court of appeal considering the challenge against a judgment of acquittal. Unless there be reasonable chance of success and a reasonable possibility of interference in appeal, leave cannot and need not be Crl.L.P. No.303 of 2008 3 granted. Not a meticulous consideration of the precise challenge, but a prima facie evaluation of the sustainability of the challenge, alone need be undertaken at the stage of grant of leave. An anxious consideration of all the relevant inputs leads me to the irresistible conclusion that the court below committed no error in not choosing to accept and act upon the interested testimony of Pws 1 to 3 in the light of Exts.D1 to D4. In any view of the matter, I am satisfied that the discretion exercised by the learned Magistrate in not choosing to accept and act upon the oral evidence of Pws 1 to 3 does not at all warrant interference in appeal. I am satisfied that it is not necessary, in these circumstances, to grant leave. 7. There is a contention for the petitioner that the petitioner wanted to produce copy of the wound certificate to suggest that the complainant had suffered injuries. That certificate has been perused by me. I am satisfied that even assuming that the said certificate should have been permitted to be introduced in evidence, the conclusion cannot be different. In any view of the matter, I am satisfied that no leave deserves to be granted on that score also. This application for leave only deserves to be dismissed. Crl.L.P. No.303 of 2008 4 8. In the course of discussions at the Bar, a question was raised about the procedure that was followed in the filing of leave applications. It is now trite and the provisions of the Code of Criminal Procedure are express that while considering appeals under Section 378 Cr.P.C, there is difference between the nature of the leave to be obtained under Section 378(3) Cr.P.C on the one hand and Section 378(4) Cr.P.C on the other. So far as appeals under Section 378 (1) & (2) are concerned, Section 378 (3) Cr.P.C prescribes that an appeal thereunder shall not be entertained except with the leave of the High Court. But when it comes to Sect 378(4) Cr.P.C, the language employed by the Code is different and it specifically stipulates that the High Court “on an application made to it by the complainant in this behalf” must grant special leave. The Supreme Court had occasion to consider the nature of the prayer that must be made to grant leave under Section 378(3) Cr.P.C in the decision reported in **State of Rajasthan v. Ramdeen and Ors.** [(1977) 2 S.C.C 630]. It was held that even without a separate application, leave under Section 378(3) Cr.P.C can be granted. But that is not the situation under Section 378(4) Cr.P.C. A separate application is certainly mandatory when it comes to the prayer for grant of leave under Section 378(4) Cr.P.C. Crl.L.P. No.303 of 2008 5 9. A Division Bench of this Court had also accepted that no separate application need be made for leave under Sect 378 (3) Cr.P.C in the decision in **State of Kerala v. Abdul Razack** [2001 (1) KLT 750]. 10. The learned counsel points out to me that the different provisions in the Limitation Act are also crucial relevance in this context. Entries in 114 in part V of the schedule to the Limitation Act show that limitation for filing an appeal under Section 378(1) & (2) Cr.P.C would start from the date of the order appealed from, whereas limitation for the period of an appeal under Section 378 (4) Cr.P.C would start running only from the date of grant of special leave under Section 378(4) Cr.P.C. 11. But what is the procedure to be followed in filing an application for leave ? This Court has come across the practice that is followed in this Court. All applications for leave under Section 378(4) Cr.P.C are being filed without filing the appeal which is proposed to be filed. There is no specific mandate either in Section 378 Cr.P.C or in the Kerala Criminal Rules of Practice which can oblige the seekers of leave under Section 378(4) Cr.P.C to file along with such application for leave the proposed appeal which they want to prefer against the judgment of acquittal impugned. The provisions of the Limitation Act, to which Crl.L.P. No.303 of 2008 6 reference has already been made shows clearly that the appeal need not be filed necessarily along with the application for leave. This results in unnecessary repetition of work. I am certainly of the opinion that in the absence of any contra stipulation in the Code or in the Criminal Rules of Practice, it can and ought to be insisted that an application under Section 378(4) Cr.P.C must be accompanied by an appeal (or copy thereof) which is proposed to be filed under Section 378(4) Cr.P.C. That would help the Court to consider the nature of the challenge against the impugned judgment of acquittal for raising which challenge, leave is sought under Section 378(4) Cr.P.C. A lot of unnecessary and non productive work for the counsel, for the office of the Court and the Court can be avoided by such insistence. Once leave is granted, it can be directed that the appeal shall be numbered, records can be called for and notice can be ordered to the respondents without the requirement of such appeal being called before the Bench for admission. Leave having already been granted, the separate hearing of the appeal for admission becomes an unnecessary and empty formality and in these circumstances the Registry can be authorised to assign the number, call for records and issue notice to the respondents. This, I am satisfied, will help to avoid wastage of time for non productive work in Court. Crl.L.P. No.303 of 2008 7 11. I do note that even if leave is granted it may be theoretically possible that the appellant may not choose to prefer an appeal. The appellant has time of 30 days from the date of grant of leave to decide whether the appeal need at all be preferred and to prefer the appeal. It may not also be proper to insist that for the proposed appeal, the appellant must pay the requisite court fee before leave is granted. Therefore, after the grant of leave, the proposed appeal complete in all particulars can be formally filed within the stipulated time. In the alternative a memo can be filed requesting that the appeal already filed along with the Leave Application may be treated as the appeal. Thereupon the appeal shall be numbered, notice issued to the respondents and records shall be called for by the Registry without calling such appeals for admission again, unless there be defects which need be considered by the Courts. 12. I am, in these circumstances, satisfied that the Registry can be directed to insist that hereafter from 01.09.08, when leave petitions are filed under Section 378(4) Cr.P.C, the applications for leave must be accompanied by the appeal which is proposed to be filed against the impugned judgment of acquittal. The grounds of appeal must be stated clearly in such proposed appeal and the application for leave can incorporate the Crl.L.P. No.303 of 2008 8 contentions by reference and it is not essential or necessary that such grounds must be repeated in the application for leave. The unnecessary repetition of the same grounds in the memorandum of appeal as also in the application for leave can thus be avoided. After grant of leave, the appeals need not be called for admission again unless there be any special need. Such appeals shall be numbered, notice shall be issued to respondents and records shall be called for by the Registry without any further directions. Grant of leave shall be reckoned as equivalent to admission of appeal if filed and if such appeal is otherwise proper. Registry shall ensure that the modified practice is followed from 01.09.08. 12. This Application for Leave is, in these circumstances, dismissed. **(R.BASANT, JUDGE)** rtr/-